Beneš decrees

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The Beneš decrees are 143 decrees of the President of the Republic that were issued by the government- in- exile in London and later by the post-war government during the German occupation of Czechoslovakia in World War II . They were approved by the Czechoslovak Provisional National Assembly on March 28, 1946 .

The often used designation of these ordinances as "Beneš decrees" is simplistic, if not misleading - the decrees of the president were prepared by the governments in exile or the first post-war government of Zdeněk Fierlinger and not only issued by Edvard Beneš himself.

Edvard Beneš , namesake of the decrees (1884–1948)

Historical context

The “Decrees of the President of the Republic”, so the official name, were issued between 1940 and 1945. In the legal sense, they correspond to decrees that the President was allowed to implement in the event of a constitutional emergency, after hearing the Council of State , and which later had to be ratified retrospectively by Parliament. In Beneš's opinion, a constitutional emergency had arisen due to the partly violent dissolution of the Czechoslovak state and the occupation by the Nazi regime in 1938 and 1939. The decrees were then approved by parliament on March 28, 1946, as planned.

In the main, the presidential decrees dealt with the continuation of the state continuity of Czechoslovakia as well as with the regulation of public life within the Czechoslovak state to be re-established after the end of the war.

prehistory

Reichsgaue 1944

The consequences of the Munich Agreement and the establishment of the Protectorate of Bohemia and Moravia endangered the very existence of the Czech nation as a whole. The newly established "Protectorate" was threatened with complete Germanization , which the Reich Protector was supposed to implement by means of a restrictive and internationally unsustainable settlement policy:

During his interrogation in Czechoslovak pre-trial detention, the former "German Minister of State for Bohemia and Moravia", Karl Hermann Frank , testified that

“Most of the Sudeten Germans since the seizure of power by Adolf Hitler had actually been in the service of the German Reich and only had the desire to join the German Reich. [...] There were acts of treason against the Czechoslovak Republic in all areas, militarily, economically and politically, so that one can speak of the fact that the majority of Sudeten Germans considered it a duty to damage the Czechoslovak state and to serve the German Empire. "

From 1939 to 1945, the brutal rule of the National Socialist regime in the Protectorate fell victim to tens of thousands of residents of the Protectorate, who were tortured to death in various concentration and extermination camps, in Gestapo prisons, executed by trial courts and in massacres of entire local populations - such as in Lidice and Ležáky - lost their lives. The exact number of victims of Nazi rule in Czechoslovakia has not yet been clarified: research estimates 330,000 to 360,000 victims, including around 270,000 people who were viewed by the National Socialists as Jews and around 8,000 Roma .

Consequences for the German population

Eight of the total of 143 decrees concerned those residents who

  • declared themselves Germans or Hungarians at the last census in Czechoslovakia in 1930 ,
  • had come under the administrative sovereignty of the German Reich through the Munich Agreement of 1938 due to their place of residence and had received Reich citizenship ,
  • had accepted German citizenship in the territory of Czechoslovakia; This also applied to the drawn in the years 1938-1945 Reich Germans .

Initially, this also affected Jews who had declared themselves Germans in the last Czechoslovak census in 1930 (around 40,000 people, after the end of the war only around 2,000 to 3,000 people) and who had often only just survived the National Socialist concentration camps. As Germans, they should therefore also prove their loyalty to Czechoslovakia, which was also a condition for the release of their property from confiscations. Jewish property was “ Aryanized ” during the German occupation , that is, transferred to Germans (often directly in “ people's property ”), which in turn was allowed to be confiscated by the Czechoslovak state as German property after the war. In order to solve this problem, the Ministry of the Interior declared on September 13, 1946 by decree that all persons who had been declared to be Jews under the racial laws of the Nazi regime fulfilled the condition of innocence due to persecution by the Nazi organs. although they had professed their German nationality in the 1930 census .

In most cases, however, property that was formerly Jewish and aryanized during the occupation was never returned due to further political developments in Czechoslovakia. As a result of the Communist Party seizure of power in the February revolution in 1948, the previously initiated policy of nationalization and confiscation of private property was continued and increasingly implemented in the years that followed.

A total of around 2.9 million people were declared enemies of the state and expatriated due to their membership of the German population - although the numbers vary depending on the source and point of view (→  expulsion of Germans from Czechoslovakia ). About 220,000 Germans remained in the country after the expulsion ended, including anti-fascists , Germans in mixed marriages with Czechs and key production workers.

The expropriations were justified (retrospectively) with the decrees, the wording of which hardly suggested a planned mass and systematic deportation (or deportation , for odsun in Czech ); there was neither an explicit “eviction decree” nor an “eviction law”.

Todays situation

The decrees that are still in force have for decades been the main point of dispute between associations of expellees in Germany and Austria on the one hand and Czechoslovakia and its successor states the Czech Republic and Slovakia on the other.

The Federal Republic of Germany itself may not raise any objections to the expropriations. This was already occupation law . In order to gain sovereignty, the Federal Republic promised the Western powers USA, Great Britain and France to adopt this regulation in federal law and undertook not to raise any objections to these expropriation measures, not to admit any lawsuits against the expropriation measures, and to ensure that they Compensated dispossessed. German courts cannot rule on Czechoslovak expropriations in the territory of Czechoslovakia. The waiver of objections and the exclusion of legal recourse remain effective after a government agreement with the three Western powers even after the entry into German unity. The European Convention on Human Rights does not stand in the way of denying legal recourse, because the treaty on the settlement of issues arising from war and occupation of October 23, 1954 was concluded so that the Federal Republic of Germany could regain its sovereignty. The international court of justice did not take a position in a similar legal dispute on the question of the ineffectiveness of the Beneš decrees, since the international court of justice for the plaintiff, the Principality of Liechtenstein, did not have jurisdiction until February 18, 1980 and the expropriation took place in 1946.

The most controversial decrees to this day are Decrees No. 5/1945, No. 12/1945, No. 33/1945, No. 71/1945 and No. 108/1945, which deny the deprivation of Czechoslovak citizenship and social status (expropriation of the property) of the German and Hungarian minorities. Above all, the associations of expellees criticized the fact that the decrees were directed against a group of people not because of specific personally committed acts, but solely because of their nationality. In doing so, they disregarded the principle of the presumption of innocence and also denied those affected the right to defend themselves before an independent court. So therefore, would not only negates the presumption of innocence before, but also a burden of proof to the detriment of the population affected by the decrees what constitutional principles contrary. Exceptions were made in individual cases; however, the permanent property fell to the newly formed Czechoslovak state even if they chose to leave the country. In terms of movable property , emigrants could voluntarily take with them as much as they wanted or could, while “ traitors ” to the First Czechoslovak Republic were only allowed 40 kilograms per person. Those who had given up their Czechoslovak citizenship in favor of another, mostly that of the German Empire, were considered traitors.

Among other things, it is criticized that not all anti-Nazi and republic- loyal Sudeten Germans dared to refuse membership of the Reich, even if they wanted to, in view of the methods of the National Socialists after the invasion of the Wehrmacht . Resistance to the Nazi regime meant at least imprisonment, often transferring to one of the concentration camps, and could cost their lives. The alternative was exile : Quite a few German-Bohemian liberals, Christians, Social Democrats and Communists fled the sphere of influence of National Socialist Germany in 1938.

The argument regarding merits in the resistance against German rule has since become obsolete due to a Czech constitutional court ruling from 2002: For anti-fascists who were voluntarily resettled, the decrees were completely repealed in March 2002; in the Czech Republic they have a. expressly entitled to re-naturalization and compensation .

The Czech side points out that the decrees were a direct consequence of the German crimes during the occupation of the country and are now "used up", i.e. are no longer applied. In the past, the repeal of the decrees had always been made dependent on the annulment of the Munich Agreement of 1938 ex tunc (ie "from the beginning"). For its part, this was rejected by the Federal Republic of Germany , but not by the GDR . The main reason for this is, above all, the considerable compensation claims that may then be levied on both sides. As a result of this situation, both sides remain in the status quo , especially after the Czech Republic joined the EU .

Demands for the repeal of the decrees have been made in the recent past at the political level by the then CSU Chairman Edmund Stoiber , the former Austrian Chancellor Wolfgang Schüssel , the then Hungarian Prime Minister Péter Medgyessy and others. raised.

The Austrian international law experts Felix Ermacora , who as an expert of long UNO worked and then, among other things with the Austrian Landsmannschaften dedicated, came in a legal opinion in 1991 to the conclusion that the expulsion in 1945-46 the crime of genocide met have. An expert opinion by the German lawyer Christian Tomuschat from 1995 did not come to this conclusion, but his analysis did not refer to the expulsion of the Sudeten Germans as a whole, but only to their expropriation without compensation by Decree No. 108 of October 1945 Incidents as genocide, as well as crimes against humanity , remain highly controversial to this day. In contrast, the European Court of Human Rights in Strasbourg in 2005 rejected a complaint made by 90 Sudeten Germans as unfounded.

The Slovak parliament declared the decrees to remain valid on September 20, 2007, which was particularly negative for the Hungarian minority in Slovakia .

German-Czech declaration

The positions of the Czech and German governments were recorded in the German-Czech Declaration on Mutual Relations and Their Future Development of January 21, 1997.

It says, among other things:

Article II: The German side acknowledges Germany's responsibility for its role in a historical development that led to the Munich Agreement of 1938, the flight and expulsion of people from the Czechoslovak border area and the destruction and occupation of the Czechoslovak Republic. She regrets the suffering and injustice inflicted on the Czech people by the Nazi crimes by Germans.
Article III: The Czech side regrets that after the end of the war, as well as the forced resettlement of the Sudeten Germans from what was then Czechoslovakia, the expropriation and expatriation of innocent people caused a lot of suffering and injustice, and this also in view of the collective character of the blame. She particularly regrets the excesses that contradicted elementary humanitarian principles and the legal norms in force at the time , and also regrets that Law No. 115 of May 8, 1946 made it possible to regard these excesses as not unlawful and that as a result these acts were not punished.
Article IV: Both sides agree that the injustice committed belongs to the past and will therefore direct their relations towards the future. Precisely because they remain aware of the tragic chapters of their history, they are determined to continue to give priority to understanding and mutual understanding in the structuring of their relationships, whereby each side remains committed to its legal system and respects that the other side has a different legal conception Has. Both sides therefore declare that they will not burden their relations with past political and legal issues.

Opt-out under the Lisbon Treaties

In an additional protocol to the Lisbon Treaty , the Czech Republic (similar to Great Britain and Poland ) insisted on so-called opt-out clauses, through which the Charter of Fundamental Rights is not applicable. It is assumed that this should prevent possible recourse claims by Sudeten Germans.

Summary of the controversial decrees

  • Decree No. 5 of May 19, 1945: Decree of the President on the nullity of some property-related acts from the time of bondage and on the national administration of the assets of Germans, Hungarians, traitors and collaborators and some organizations and institutions
§ 2 (1) The property of the state unreliable persons located in the territory of the Czechoslovak Republic is placed under national administration in accordance with the further provisions of this decree [...]
§ 4 The following are to be regarded as state unreliable persons:
a) Persons of German or Magyar (= Hungarian) nationality [...]
§ 6 Persons of German or Magyar nationality are to be regarded as persons who have committed themselves to German or Magyar nationality in any census since 1929 or who have become members of national groups, formations or political parties made up of persons of German or Magyar nationality.

Just four weeks later, all German and Hungarian companies in Bohemia and Moravia were subordinate to national administrators (a total of around 10,000 companies with around one million employees).

  • Decree No. 12 of June 21, 1945: Decree of the President on the confiscation and accelerated distribution of the agricultural property of the Germans, Hungarians, as well as traitors and enemies of the Czech and Slovak people
§ 1 (1) With immediate effect and without compensation, the agricultural property owned by the following will be expropriated for the purposes of land reform:
a) all persons of German and Magyar nationality, regardless of nationality, [...]
(2) Persons of German and Magyar nationality who have actively participated in the struggle for the preservation of the integrity and the liberation of the Czechoslovak Republic, the agricultural property according to paragraph 1 will not be confiscated.
(3) At the request of the responsible farmers' commission, the responsible regional national committee shall decide whether an exception under paragraph 2 is permissible [...]
  • Decree No. 16 of June 19, 1945: Decree of the President on the punishment of National Socialist criminals, traitors and their helpers and on the extraordinary people's courts
  • Decree No. 28 of July 28, 1945 Decree of the President on the settlement activity of the agricultural areas of the Germans, Hungarians and other enemies of the state by Czech, Slovak and other Slavic farmers
  • Decree No. 33 of August 2, 1945: Constitutional decree of the President regulating the Czechoslovak citizenship of persons with German and Hungarian nationality
§ 1 (1) Czechoslovak citizens of German or Magyar nationality who have acquired German or Magyar citizenship in accordance with the regulations of a foreign occupying power have lost their Czechoslovak citizenship on the day they acquired this nationality.
(2) The other Czechoslovak citizens of German or Magyar nationality lose their Czechoslovak citizenship on the day on which this decree comes into force [...]
§ 2 (1) Persons who fall under the provisions of § 1 and who can prove that they have remained loyal to the Czechoslovak Republic, never acted against the Czech and Slovak people and either actively participated in the struggle for their liberation or under the Nazi regime or suffered from fascist terror, Czechoslovak citizenship will be retained.
  • Decree No. 71 of September 19, 1945: Decree of the President on the obligation to work for persons who have lost their Czechoslovak citizenship
§ 1.1 In order to remedy and repair the damage caused by the war and the air raids, as well as to restore the economic life shattered by the war, an obligation to work is introduced for persons who, according to the constitutional decree of the President of the Republic of August 2, 1945, Coll. No. 33, on the regulation of Czechoslovak citizenship for persons of German and Magyar nationality who have lost Czechoslovak citizenship. The duty to work also extends to persons of Czech, Slovak or other Slavic nationality who applied for German or Magyar citizenship during the period of increased threat to the republic without being forced to do so by coercion or special circumstances.
§ 2.1 Men between the ages of 14 and 60 and women between the ages of 15 and 50 are subject to the obligation to work.
§ 2.2 The following are exempt from the duty to work:
a) physically or mentally disabled persons as long as this condition lasts;
b) pregnant women, from the beginning of the fourth month of pregnancy
c) women who have recently given birth, for a period of six weeks after the birth and
d) women who have to care for children under six years of age.
  • Decree No. 108 of October 25, 1945: Presidential Decree on the Confiscation of Enemy Property and Funds for National Reconstruction
§ 1 (1) The immovable and movable property of the Czechoslovak Republic, including property rights (such as claims, securities, deposits, intangible rights) up to the day of the actual end of the German and Magyar occupation is confiscated without compensation [...] for the Czechoslovak Republic was or is still owned by: [...]
2. Physical persons of German or Magyar nationality, with the exception of those who can prove that they have remained loyal to the Czechoslovak Republic, have never violated the Czech and Slovak people and either actively participated in the struggle for their liberation or under the Nazi regime or suffered fascist terror.
3. physical persons who […] promoted Germanization or Magyarization in the territory of the Czechoslovak Republic […] as well as persons who tolerated such activity in persons who managed their assets or companies.
  • Decree No. 123/1945 of October 18, 1945, retroactive to November 17, 1939: Decree of the President on the dissolution of the German universities in Prague and Brno

After the majority of the German population group had already been resettled, the National Assembly of the Czechoslovak Republic passed a law on May 8, 1946, according to which “an act that was carried out in the period from September 30, 1938 to October 28, 1945 and whose purpose it is was to contribute to the struggle to regain the freedom of the Czechs and Slovaks, or which aimed at just retaliation for the acts of the occupiers or their accomplices ”, even if it were not to be regarded as unlawful,“ if they were otherwise in accordance with the applicable laws Regulations would have been punishable ":

  • Act No. 115/1946: Exemption from punishment for eviction crimes until October 28, 1945 (free German translation of the Czech / Slovak name of Act No. 115/1946)
§ 1 An act that was carried out in the period from September 30, 1938 to October 28, 1945, the purpose of which was to contribute to the struggle to regain the freedom of the Czechs and Slovaks, or to provide just retaliation for Acts of the occupiers or their accomplices are not unlawful even if they would otherwise have been punishable under the applicable regulations.
§ 2.1 If someone has already been convicted of such a criminal offense, the provisions on the resumption of criminal proceedings must be followed.
§ 2.2 The court before which the first instance proceedings took place or, if such proceedings did not take place, the court that would now have jurisdiction in the first instance if the unlawfulness of the act were not ruled out according to § 1 has jurisdiction.
Section 2.3 If an offense named in Section 1 coincides with an offense for which the accused was convicted by the same judgment, the court shall issue a new sentence for this other offense, taking into account the guilty verdict.
§ 3 This law comes into force on the day of its publication; it is carried out by the Minister of Justice and the Minister of National Defense.

Some of the decrees had a limited effect, the expatriation and the two expropriation decrees are unlimited.

Václav Havel's attitude

Communist rule in Czechoslovakia ended with the Velvet Revolution at the end of 1989 ; the former dissident Václav Havel became president . Havel publicly expressed regret about the suffering inflicted on the Sudeten Germans when they were expelled in 1945.

literature

  • Beppo Beyerl : The Beneš Decrees. Between Czech identity and German desirability. Promedia, Vienna 2002, ISBN 3-85371-194-4 .
  • Collegium Carolinum : Working bibliography on the history of the expulsion and resettlement of Germans from the Bohemian countries and Czechoslovakia (selected). Compiled by Robert Luft. ( online ).
  • Jakob Cornides: The Sudeten German Question after EU Enlargement. In: Gilbert H. Gornig, Hans-Detlef Horn , Dietrich Murswiek (eds.): Property law and expropriation injustice. Analyzes and contributions to coming to terms with the past (=  treatises on constitutional and international law by the study group for politics and international law. Vol. 25). Volume 2. Duncker & Humblot, Berlin 2009, ISBN 978-3-428-13212-6 , pp. 213-241.
  • Barbara Coudenhove-Kalergi , Oliver Rathkolb (ed.): The Beneš decrees. Czernin Verlag, Vienna 2002, ISBN 3-707-60146-3 .
  • Christian Domnitz: The Beneš decrees in parliamentary debate. Controversies in the European Parliament and in the Czech House of Representatives before the Czech Republic joined the EU (=  Czech Republic and Central Europe. Vol. 5). Lit Verlag, Berlin [u. a.] 2007, ISBN 978-3-8258-0414-5 .
  • Stefanie Mayer: “Dead injustice”? The “Beneš Decrees” in the media discourse - between ethnic thinking and critical-scientific analysis. =  "Dead injustice". Media discourse concerning the "Benes Decree" - between national thinking and critical scientific reappraisal. In: Heiko Kauffmann, Helmut Kellershohn, Jobst Paul (eds.): Völkische Bande. Decadence and rebirth - analyzes of right-wing ideology (=  Edition DISS. Vol. 8). Unrast-Verlag, Münster 2005, ISBN 3-89771-737-9 , pp. 160-184.
  • Niklas Perzi: The Beneš Decrees. A European tragedy. NP Buchverlag, St. Pölten [u. a.] 2003, ISBN 3-85326-099-3 .
  • Wolf Peterhoff: The "expired" Beneš decrees and their aftermath under international law to this day. In: Eastern European Law. Present-day questions from the rights of the East. 52nd volume , 2006, ISSN  0030-6444 , pp. 9-21.
  • Jaromír diving : “Beneš decrees” from a legal historical perspective. In: Journal on European History of Law. Vol. 1, No. 1, 201, ISSN  2042-6402 , pp. 41-45.
  • Heiner Timmermann , Emil Vorácek, Rüdiger Kipke (eds.): The Beneš decrees. Post-war order or ethnic cleansing. Can Europe give an answer? (=  Documents and writings of the European Academy Otzenhausen. Vol. 108). Lit Verlag, Münster 2005, ISBN 3-8258-8494-5 .
  • Wilhelm Turnwald: Documents for the expulsion of the Sudeten Germans. Published by the working group for the protection of Sudeten German interests. Europa-Buchhandlung, Munich 1951.

Web links

Wikisource: Benešovy dekrety  - Sources and full texts (Czech)

Individual evidence

  1. ↑ Detlef Brandes : Great Britain and its Eastern European Allies 1939–1943. The governments of Poland, Czechoslovakia and Yugoslavia in exile in London from the outbreak of war to the Tehran Conference (=  publications of the Collegium Carolinum ; vol. 59). Oldenbourg, Munich 1988, ISBN 3-486-54531-0 , p. 88.
  2. ^ Václav Král (ed.): The Germans in Czechoslovakia. 1938-1947. Document collection. Compiled, provided with a preface and notes (=  Acta occupationis Bohemiae et Moraviae ). Nakladatelstvî Československé akademie věd, Prague 1964, p. 54.
  3. ↑ Christiane Brenner : "Between East and West". Czech political discourses 1945–1948 (=  publications of the Collegium Carolinum ; vol. 118). Oldenbourg, Munich 2009, ISBN 978-3-486-59149-1 , p. 34 (also: Berlin, Freie Universität, dissertation, 2007).
  4. ^ Hans Kutscher in: Bonner contract , Munich and Berlin 1952, p. 219.
  5. ↑ Act No. 63 on the clarification of the legal situation with regard to German foreign assets and other German assets recorded by way of reparation or restitution of August 31, 1951 ; Official Journal of the Allied High Commission for Germany 1951, pp. 1107–1110 (1109).
  6. ↑ European Court of Human Rights (ECHR): Prince Hans-Adam II of Liechtenstein against Germany; Judgment of July 12, 2001, Az. 42 527/98, p. 19 ( online ).
  7. ↑ Art. 3 Paragraph 1 of Part Six of the Treaty Regulating Issues Arising from War and Occupation of October 23, 1954, Federal Law Gazette II 1955, p. 440.
  8. ↑ Art. 3 Paragraph 3 of Part Six of the Treaty Regulating Issues Arising from War and Occupation of October 23, 1954, Federal Law Gazette II 1955, p. 440.
  9. ↑ Art. 5 Paragraph 1 of Part Six of the Treaty Regulating Issues Arising from War and Occupation of October 23, 1954, Federal Law Gazette II 1955, p. 440.
  10. ^ Christian Tomuschat: The Beneš Decrees and the European Union , in: Heiner Timmermann / Emil Voráček / Rüdiger Kipke: The Beneš Decrees , Münster 2005, pp. 455-481 (455).
  11. ↑ Christopher James Prout (Lord Kingsland): Expert opinion on the Beneš decrees and the accession of the Czech Republic to the European Union of October 1, 2002 , in: Heiner Timmermann / Emil Voráček / Rüdiger Kipke: Die Beneš decrees , Münster 2005, p 522-541 (531).
  12. ↑ Announcement of the agreement of 27./28. September 1990 on the Treaty on Relations between the Federal Republic of Germany and the Three Powers and the Treaty on the Regulation of War and Occupation Issues of October 8, 1990, Federal Law Gazette 1990 II, pp. 1386-1389.
  13. ↑ Christopher James Prout (Lord Kingsland): Expert opinion on the Beneš decrees and the accession of the Czech Republic to the European Union of October 1, 2002 , in: Heiner Timmermann / Emil Voráček / Rüdiger Kipke: Die Beneš decrees , Münster 2005, p 522-541 (531).
  14. ↑ European Court of Human Rights (ECHR): Prince Hans-Adam II of Liechtenstein against Germany; Judgment of July 12, 2001, Az. 42 527/98, p. 19 ( online ).
  15. ↑ International Court of Justice: Liechtenstein v. Germany, judgment of February 10, 2005, General List No. 123, p. 21 et seq. ( PDF ).
  16. ^ The Sudeten Germans' action at the EU Court of Justice rejected , Radio Praha of December 30, 2005.
  17. ↑ German-Czech declaration on mutual relations and their future development of January 21, 1997 ( Memento of February 24, 2013 in the Internet Archive )
  18. ↑ Barbara Lochbihler : Questionable exemptions from the Charter of Fundamental Rights ( PDF ( Memento of March 31, 2013 in the Internet Archive )).
  19. ↑ Lukáš Novotný : On the oblivion and obsession with history in the Czech public (lecture, November 29, 2003); Jan Pauer: Moral-political dissent in German-Czech relations , in: WeltTrends No. 19, summer 1998, pp. 67–82.