Statute of limitations debate

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Under the term statute of limitations debate, a debate in the German Bundestag on March 10, 1965 has become known, which was intended to prevent the statute of limitations of crimes, the prosecution of which during the Nazi regime was contrary to the “ will of the Führer ”, which was considered a law .

The debate is widely regarded as the “finest hour of parliament” and represents an important step in coming to terms with the past . In its effectiveness on public opinion, it surpasses both the previous Bundestag debate on May 4, 1960 on the statute of limitations and the two subsequent statute of limitations debates of June 26, 1969 and March 29, 1979.

Legal starting point

The German Criminal Code stipulated a period of twenty years for the statute of limitations for crimes such as murder , which were threatened with life imprisonment , in Section 67 (1) old version . For crimes with a penalty of more than ten years, a limitation period of fifteen years applied, for others a limitation period of ten years was provided.

The Ordinance on the Elimination of National Socialist Interventions in the Administration of Criminal Justice of May 23, 1947 in conjunction with Section 69 StGB (old version) had in the British Occupation Zone in particular for crimes that were associated with acts of violence or persecution for political, racial or religious reasons, as well as for crimes that The statute of limitations for the period from January 30, 1933 to May 8, 1945 had been committed against political opponents to enforce National Socialism , to maintain its rule or to exploit a state or party position of power against political opponents. In the American occupation , this happened for the period from January 30, 1933 to July 1, 1945 through penal laws initiated by the military government in May 1946 for acts that were "not punished for political, racial or religious reasons" during the Nazi tyranny and for whom the "principles of righteousness" demanded subsequent atonement. In the French zone , corresponding regulations were issued in the countries. In Berlin, the statute of limitations for acts that had been committed between January 30, 1933 and July 1, 1945 was excluded under Control Council Act No. 10 .

Crimes committed during the Nazi era could no longer have been prosecuted from May 8, 1965.

The statute of limitations for crimes other than murder and manslaughter committed before May 8, 1945 , for example bodily harm resulting in death or aiding and abetting murder, so-called desk perpetrators , had already expired on May 8, 1960.

There have been attempts to prevent this from happening. The SPD parliamentary group introduced a calculation law that was supposed to postpone the start of the limitation period to September 16, 1949. As a justification, reference was made to the insufficient possibilities of the law enforcement authorities in the post-war period. In addition, a reassessment of the statute of limitations laid down in the Criminal Law of 1871 should be carried out in view of the National Socialist mass crimes. On May 4, 1960, shortly before the expiry of the limitation period, this application was forwarded to the Legal Affairs Committee without discussion and rejected there. A subsequent amendment draft, which set the start of the period to June 20, 1946, was discussed in plenary on May 24, 1960. A decisive factor was Justice Minister Fritz Schäffer's assessment that an unchanged occurrence of the statute of limitations would serve "internal pacification", but an extension would be superfluous, since "all significant acts of mass extermination during the war were systematically recorded and largely researched" and only a few straggler trials are to be expected be. The main reason for the rejection was the prevailing view that the retrospective change violated the principle laid down in Art. 103 GG that a person could only be punished “if the criminal liability was determined by law before the act was committed” ( Nulla poena sine lay ).

The statute of limitations debate of March 10, 1965

Situation in advance of the debate

Again and again the GDR had deliberately published incriminating material against high officials and judges of the Federal Republic in order to portray the Federal Republic as a fascist state. In 1962, Federal Prosecutor General Wolfgang Fränkel resigned on charges of having participated in thirty questionable death sentences during the Nazi era . Such revelations also damaged the Federal Republic's international reputation among its western allies. It was suspected that more perpetrators in today's high positions could be exposed if one had more time for prosecution. The upcoming statute of limitations was not only criticized in Israel. The USA exerted pressure with a demarche to prevent the previously unsolved mass murders from going unpunished by statute of limitations. In 1963, after much preparatory work, the first Auschwitz trial began in Frankfurt am Main .

The German government called on 20 November 1964 all governments abroad to on, all discovered documents about Nazi crimes immediately to the Ludwigsburg Central Office to forward. Abroad, this was seen by some as an alibi function for the foreseeable case that some Nazi perpetrators would only be exposed after the statute of limitations.

Domestically, the threatened statute of limitations became an important topic that was widely discussed in the press. Opinion polls showed that a slim majority was in favor of the statute of limitations. The federal states of Hamburg and Schleswig-Holstein submitted unsolicited applications to extend the limitation period. On the eve of the parliamentary debate, Der Spiegel published a much-noticed conversation between Rudolf Augstein and Karl Jaspers under the title For genocide there is no statute of limitations .

debate

In the federal government under Ludwig Erhard , the opinion prevailed that an extension of the statute of limitations was constitutionally impossible. It therefore waived requirements. This made it easier for a parliamentary debate to take place, in which the MPs spoke freely from the fact that the parliamentary group was required to participate. The opposing viewpoints were difficult to bridge. For some MPs, the idea that the unpunished mass killings and genocide would be barred by the statute of limitations was unbearable. Others saw the principles of a constitutional state incurably violated if an expired criminal claim were retrospectively asserted again.

In January 1965, Ernst Benda ( CDU ) submitted an application signed by 49 other members of his party, through which the limitation period for murder was to be extended to 30 years. The SPD parliamentary group introduced two bills. According to her will, the statute of limitations for murder and genocide should be dropped entirely; this should be legally secured through an amendment to Art. 103 GG. On the day before the Bundestag session, Benda then submitted an amended motion that would completely lift the statute of limitations for murder. A change of opinion had taken place in the course of the last few months; it would no longer be a question of whether, but rather only the best legal and political path.

Essential reasoning

Federal Justice Minister Ewald Bucher ( FDP ), who did not speak on behalf of the federal government in his contribution , spoke out against the present applications . He pointed to the difficulty of proving the passage of time; Acquittals and excessive criticism of the German judiciary are foreseeable. The premature release of Einsatzgruppe leaders by the Allies made coexistence with mass murderers inevitable anyway. Even an amendment to Art. 103 (2) GG would be legally questionable if one considered this in connection with Art. 20 GG and Art. 79 GG. Other speakers also supported this line of argument and demanded that moral concerns and political aspects should take a back seat in favor of legal certainty and the preservation of the rule of law.

The proponents of the motions cited a decision of the Federal Court of Justice of 1952 and the Hessian Penalty Act confirmed by the Federal Constitutional Court : There, in the specific case, the extension of the deadline was not viewed as a violation of the principle nulla poena sine lege . Ernst Benda (CDU) was able to refer to an appeal from 76 professors who denied constitutional concerns. The proponents of the motions recalled that if a judicial act was initiated in good time, the limitation period would be interrupted and thus already extended; this would invalidate many of the opponents' concerns and arguments. They also referred to the damage to foreign policy, a loss of reputation and credibility abroad.

Individual speeches

Ernst Benda not only went into the legal arguments in detail, but also determined the further direction of the debate through his contribution. His statement that he did not feel the pressure of world opinion, that he was only following the pressure of his own convictions and conscience, was taken up as a leitmotif by many other speakers. No supporter of the statute of limitations who bases his opinion on the rule of law should not be accused of merely advancing these arguments. But first of all the victims are legitimized to grace and forgiveness, while the others are left to recognize the guilt (report of the meeting, p. 8525).

Benda received applause from all sides of the house and was praised by Martin Hirsch (SPD) as the “spokesman for the young German generation” (8526). The speech by Rainer Barzel (CDU), however, clouded the unanimity that was sought and which many speakers had sworn to say. His swipes at the GDR culminated in the saying [...] "that Hitler is dead and Ulbricht is alive". (8531) His sentence, coined on Adolf Hitler , led to a contradiction : "This man bears great guilt also before the German people and especially before those whose patriotic sentiments and idealism he abused."

Barzel's remarks about a lack of guilt in the case of “political error” (8530) and his commitment “to the honor of the German soldiers (8530)” pointed in the same direction. It was not only Barzel who repeatedly asserted that this was not about a new denazification , which was clearly rejected by the majority of the electorate.

Gerhard Jahn (SPD) posed the rhetorical question: "Should the monstrous extent of crimes [...] simply be answered with legal considerations or are we asked [...] to make a political-moral decision?" (8537) Jahn turned then against Barzel's formulations, was interrupted several times by heckling and later had to be accused by Benda that he wanted to spark a party-political discussion (8537).

Thomas Dehler (FDP) persisted in his conviction that a solution based on the rule of law would not be achievable even by changing the constitution. But he confessed: “In the end we are aware of our guilt, everyone of us who was responsible at the time.” […] “Everyone of us who was responsible then has the feeling that he was not enough for the law fought that he had too little courage for the truth, was not strong enough for the power of evil. "(8541)

Max Güde (CDU / CSU) complained that some heavily burdened mass murderers, who were convicted by the Allied courts and then pardoned, were running around freely: "This double intervention by the Allies in the German legal area has confused things to this day." (8567) If the statute of limitations is lifted, the compulsory prosecution should be relaxed so that only extreme murderous acts come before the court.

Dittrich (CSU) announced that the formation of opinion in the CSU state group had not yet been completed. He referred to a suggestion made by former German Chancellor Konrad Adenauer to start the limitation period later. This proposal was not discussed further, but shortly afterwards it was taken up as a compromise capable of reaching a majority in the Legal Affairs Committee.

The climax was the appearance of Adolf Arndt (SPD), who had previously been the only spokesman for legal policy in 1960 who had voted against the proposal of his own parliamentary group because he did not consider a change in the statute of limitations to be legitimate without a change in the constitution. Arndt denied collective guilt, but spoke of a moral and a historical guilt. Arndt used examples to show that the murders in nursing homes and the crimes in the East were known to the “ordinary people” as early as the Third Reich, and went on: “The essentials were known. I had to say to the young people: If your birth mother is on her deathbed and swears to God [...] that she did not know, then I tell you: The mother just can't say it because it's too terrible to have known that or to be able to know, but not want to know. I know I am part of the debt. Because you see, I didn't go out into the street and screamed when I saw that the Jews from our midst were being transported by lorry. I didn't put on the yellow star and said: Me too! I can't say I did enough [...] You can't say: I wasn't born yet, this legacy is none of my business. […] The point is that we do not turn our backs on the mountains of guilt and calamity that lie behind us. ”(8552/8553).

Result

After deliberation in the legal committee, a majority passed the law on calculating the statute of limitations on criminal law on April 13, 1965 . As a result, the period from May 8, 1945 to December 31, 1949 was not included in the calculation of the statute of limitations for the prosecution of crimes threatened with lifelong imprisonment. During this time, therefore, had limitation period also rested with the result that murders now until 31 December 1969 were traced.

All members of the SPD and 180 of the 217 CDU members voted for this compromise. The members of the FDP voted almost unanimously in favor of maintaining the statute of limitations. Federal Justice Minister Ewald Bucher (FDP) resigned on March 26, 1965. The criminal punishment for murder was thus possible until the end of 1969. A final statute of limitations had been averted, but at the same time it was foreseeable that the problem would have to be decided again four years later.

It was unequivocally stated in the debate that the mass killings were not excesses in acts of war, but rather thought-out and carefully planned acts of murder by a terrorist state. Personal moral confessions of guilt were pronounced and a non-statute-barred historical debt was highlighted, which remains as an inheritance.

In a decision of February 26, 1969, the Federal Constitutional Court declared the regulation of Section 1 (1) of the Act on the Calculation of Statute of Limitation Periods under Criminal Law to be compatible with the Basic Law. Statute of limitations regulated how long an offense declared criminal should be prosecuted. However, it does not affect the criminality of the act. Statute of limitations is therefore not subject to the criminal law prohibition of retroactive effect of Article 103, Paragraph 2 of the Basic Law.

The statute of limitations debate of 1965 is still regarded in 2005 by well-known political scientists such as Peter Reichel as Parliament's finest hour . The contemporary analysis of the debate by Karl Jaspers contradicts this assessment.

The statute of limitations debate of June 26, 1969

Debate and outcome

In the spring of 1969, the federal state of Hamburg and shortly afterwards the federal government introduced a draft law drawn up by Federal Justice Minister Horst Ehmke (SPD), both of which aimed at the complete abolition of the statute of limitations for murder and genocide.

Opponents of the draft pointed out that Parliament's credibility would be seriously damaged if the fundamental legal considerations were overturned just four years later. The proponents emphasized the historical responsibility that, in the interests of the victims, requires further prosecution of murder and genocide.

With a majority of two thirds of the votes, the Bundestag resolved to amend Sections 66 and 67 of the Criminal Code through the Ninth Criminal Law Amendment Act of August 4, 1969, which increased the statute of limitations for crimes threatened with life imprisonment to 30 years and repealed for genocide . With regard to the statute of limitations for prosecution, which was dormant until December 31, 1949, the law for the calculation of criminal statute of limitations remained decisive. Murder then became statute-barred December 31, 1979.

criticism

The result was practically undermined, however, by Art. 1 No. 6 of the Introductory Act to the Law on Administrative Offenses , according to which Section 50, Paragraph 2 of the Criminal Code, new version, was also applicable to murder acts with effect from October 1, 1968, for which the perpetrator had the base motives such as racial hatred could not be proven in person. In such cases, the sentence was to be mitigated according to the regulations on the punishment of the attempt and only threatened with an early imprisonment of up to 15 years. According to the case law of the Federal Court of Justice , the law on the calculation of statute of limitations under criminal law was therefore not decisive. Because according to its § 1 this only concerns crimes which are threatened with life-long prison. That law is therefore ruled out. Rather, the regulation on the elimination of National Socialist interference in the administration of criminal justice of 1947 should be applied. According to their § 3, the statute of limitations is only dormant until May 8, 1945 and expired 15 years later on May 8, 1960.

The historian Norbert Frei puts the voting behavior of the CDU and FDP in connection with this “planned amnesty or legislative gap”. Only when the impunity of Nazi lawyers was secured were the Christian Democrats willing to extend the limitation period. The "biggest murder trial of the post-war period", the proceedings against the staff of the Reich Security Main Office , had to be stopped shortly before the opening due to the statute of limitations .

The statute of limitations debate of March 29, 1979

For the fourth time, in 1979, Parliament had to deal with the question of how the criminal law coping with the past was to be reconciled with traditional statutes of limitation. Against the background of the multitude and cruelty of the crimes committed during the National Socialist tyranny, the legislature wanted to express that the passage of time and thus also the distance to the act cannot prevent the execution of sentences in the case of acts of the most serious injustice. It is therefore logical not only to refrain from prosecution after a long period of time, not only in the case of genocide, but also in the case of murder.

The broadcast of the four-part television series Holocaust , which brought the genocide to the public's attention, is said to have an effect on the resolutions of the Bundestag.

The Legal Committee of the Bundestag could not agree on a recommendation for a resolution. On July 3, 1979, the German Bundestag resolved with 255 votes to 222 to expressly lift the statute of limitations for murder as well ( Section 78 (2) StGB new version).

The statute of limitations for genocide has been regulated since 2002 in § 5 , § 6 of the Völkerstrafgesetzbuch (VStGB).

German Bundestag - Stenographic Reports

  • A) Negotiations in the German Bundestag. 3rd electoral term. Stenographic reports Volume 46: 117th meeting of May 24, 1960 (p. 6680 ff)
  • B) Negotiations in the German Bundestag. 4th legislative term. Stenographic Reports Volume 57: 170th meeting of March 10, 1965 (pp. 8516–8571)
  • C) Negotiations in the German Bundestag. 5th electoral term. Stenographic Reports Volume 70: 243rd meeting of June 26, 1969 (pp. 13554–13563)
  • D) Negotiations in the German Bundestag. 8th legislative term. Stenographic Reports Volume 109: 145th meeting of March 29, 1979 (pp. 11561–11650)

literature

  • Karl Jaspers : The question of guilt. There is no statute of limitations for genocide. Piper Publishing House. Munich 1979, ISBN 3-492-00491-1 (contains the lecture series from 1946, the mirror talk from 1965 and the presentation and assessment of the statute of limitations debate from 1965.)
  • Karl Jaspers: Where is the Federal Republic going? Facts, dangers, opportunities . Verlag R. Piper, Munich 1966 (contains Spiegel interview, analysis of parliamentary debates and, in the third part, “Aspects of the Federal Republic”). The last, most important, third part was necessary after Jaspers, "because the resulting picture gave no confidence in current politics" (preface).
  • Tuviah Friedman : The struggle for the cancellation of the statute of limitation for the Nazi criminals in Germany . Haifa 1997.
  • Peter Reichel : Coming to terms with the past in Germany. The confrontation with the Nazi dictatorship from 1945 until today. Beck'sche Reihe 1416, Munich 2001, ISBN 3-406-45956-0 , pp. 182-198.
  • Anica Sambale: The statute of limitations discussion in the German Bundestag. A contribution to coming to terms with the legal past. ( Criminal Law in Practice and Research , Volume 9 / Diss. Halle / S.). Hamburg 2002, ISBN 3-8300-0601-2 .
  • Rolf Vogel (Ed.): A way out of the past. Documentation on the statute of limitations and on the Nazi trials with press releases and interviews. Ullstein Tb 3692, Frankfurt / M. 1969.
  • Annette Weinke : The persecution of Nazi perpetrators in divided Germany. Paderborn u. a. 2002, ISBN 3-506-79724-7 , pp. 197-235 (background material).
  • Marc von Miquel: Punish or amnesty? West German Justice and Politics of the Past in the Sixties. Wallstein-Verlag, Göttingen 2004, ISBN 3-89244-748-9 .

Web links

Individual evidence

  1. ^ Sandra Schmid: German Bundestag - Historical Debates (4): Statute of limitations for Nazi crimes . Ed .: German Bundestag. August 14, 2017 ( bundestag.de [accessed August 10, 2017]).
  2. ↑ Section 67 of the Criminal Code from October 1, 1953 to August 5, 1969/6. Version valid August 1969. lexetius.com, accessed January 29, 2019.
  3. ^ British Zone Ordinance Gazette May 28, 1947, Issue 6, p. 65; available as a digital legal source in the German National Library at deposit.dnb.de
  4. ↑ Section 69 of the Criminal Code in the version valid from April 12, 1893 to January 1, 1975. lexetius.com, accessed January 29, 2019.
  5. ↑ cf. Hessian law on the punishment of National Socialist crimes of May 29, 1946 (GVBl. P. 146), BVerfG, decision of September 8, 1952 - 1 BvR 612/52 ; Bavarian law for the punishment of National Socialist crimes of May 31, 1946 (GVBl. P. 182) as well as identical laws for Bremen and Württemberg-Baden
  6. ^ NN: B. Justice and the prosecution of Nazi crimes de Gruyter , no year, p. 247 f.
  7. ↑ a b c d e Norbert Seitz: Deutschlandfunk Background "Statute of limitations for Nazi murders: A compromise as a milestone". In: Deutschlandfunk. March 10, 2015, archived from the original on April 21, 2019 ; accessed on April 21, 2019 .
  8. ↑ Alexander Schubart: The statute of limitations for National Socialist crimes website of the Friedrich Ebert Foundation , accessed on February 2, 2019.
  9. ↑ BGBl. I p. 315
  10. ↑ BVerfG, decision of February 26, 1969 - 2 BvL 15, 23/68
  11. ^ Draft of a Ninth Criminal Law Amendment Act, BT-Drs. V / 4220 of May 14, 1969
  12. ↑ Federal Law Gazette I p. 1065
  13. ↑ Section 66, Paragraph 2 , Section 67, Paragraph 1, No. 1 of the Criminal Code in the 5/6 Version valid August 1969
  14. ↑ cf. BGH, judgment of May 20, 1969 - 5 StR 658/68
  15. ^ Norbert Frei: Careers in the Twilight ... Frankfurt / M. 2001, ISBN 3-593-36790-4 , pp. 228/29.
  16. ^ Draft of an Eighteenth Criminal Law Amendment Act (18th StrÄndG) BT-Drs. 8/2653 (new) of March 14, 1979, p. 4.
  17. ^ Frank Bösch: Film, Nazi Past and History. In: Vierteljahrshefte für Zeitgeschichte 54 (2007), p. 2 ( PDF ).
  18. ↑ Sixteenth Criminal Law Amendment Act (16. StrÄndG) of July 16, 1979, Federal Law Gazette I p. 1046