Statute of Limitations Scandal (1968)

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As limitation scandal , even cold limitation or cold amnesty , and admission is limitation period for Nazi crimes with the Introductory Act to the Code of Administrative Offenses (EGOWiG) called on 24 May 1968th

prehistory

Legally, the statute of limitations according to the German Criminal Code in the version in force since 1871 was linked to the amount of the sentence. For crimes such as murder , which were threatened with life imprisonment , a limitation period of twenty years was applied.

The suspension of the statute of limitations for politically motivated murders from the time of National Socialism was extended to December 31, 1949 as a result of the statute of limitations debate of 1965 with the law for the calculation of criminal statute of limitations from May 8, 1945. The statute of limitations for crimes such as murder, which were threatened with life imprisonment, began on January 1, 1950 and expired 20 years later with the end of 1969. With the Ninth Criminal Law Amendment Act of August 4, 1969, the statute of limitations for crimes threatened with life imprisonment was increased to 30 years. The statute of limitations for murder began on January 1, 1950, but did not end until 1979.

Crimes with an early maximum sentence of more than 10 years become statute-barred after 15 years, if they were threatened with a lesser prison sentence, in ten years. Since they were not covered by the Calculation Act of 1965, their statute of limitations began on May 8, 1945 and expired 15 years later at the latest on May 8, 1960.

Regulation in EGOWiG

Art. 1 number 6 EGOWiG

In the second half of the sixties, a revision of the Administrative Offenses Act (OWiG) was prepared. In the course of the major criminal law reform , minor criminal offenses were also to be decriminalized and the provisions on administrative offenses scattered across numerous individual laws were to be codified in summary . At the same time, the Introductory Act to the Law on Administrative Offenses (EGOWiG) was drawn up.

In the Federal Ministry of Justice , Eduard Dreher was responsible for the draft law for the EGOWiG.

In Article 1, No. 6 of the EGOWiG, a provision was included that changed Section 50, Paragraph 2 of the Criminal Code as follows: “If the participant lacks special personal characteristics, circumstances or circumstances (special personal characteristics) that justify the criminal liability of the perpetrator, this is the case To mitigate punishment according to the regulations on the punishment of the attempt . "

Legal dogmatic consequences

According to Section 50, Paragraph 2 of the old version of the Criminal Code, circumstances of a personal nature giving rise to the punishment were attributable to the participant even if they were not personally present. The participant in a murder could therefore be sentenced to life imprisonment like a perpetrator. However, an optional mitigation of the sentence at the discretion of the court was possible in individual cases.

This possibility was ruled out by Section 50 (2) of the new version of the Criminal Code, as the punishment had to be mitigated if only the perpetrator, but not the participant, had circumstances of a personal nature that justified the punishment. If a defendant's characteristics, circumstances or circumstances, in particular low motives such as acting out of racial hatred, could not be proven personally, his punishment was obligatory when applying Section 50 (2) StGB in the version of Art. 1 No. 6 EGOWiG to mitigate. Instead of life imprisonment, only an early prison sentence of up to 15 years could be imposed. The act was no longer threatened with life imprisonment and was therefore not statute-barred after thirty years at the end of 1979. As an act only threatened with a temporary imprisonment, it was statute-barred after 15 years on May 8, 1960 at the latest.

Knowledge of the consequences

It is doubtful whether most MPs noticed this connection when they voted on the EGOWiG in the German Bundestag. Those who noticed, dared or possibly did not want to break a "consensus of silence" prevailing at the time.

In the period between the decision of the Bundestag and the entry into force of the EGOWiG on October 1, reference was made to the possible consequences of the change, and there would have been time to make improvements. Rudolf Schmitt , judge in the 5th Criminal Senate of the Federal Court of Justice , pointed out in a conversation at the 47th German Jurists Congress in September 1968 with an employee of the Sturm Ministerialrat in the Federal Ministry of Justice that the statute of limitations allowed Nazi crimes. The latter reported this to his superior, who in turn made a note on September 26, 1968, which pointed out the possible consequences, and passed it on to his superior, Dreher. Dreher provided him with a "reassuring" marginal note instead of drawing the attention of the head of the Federal Ministry of Justice to the impending political danger of a change in the law, which is a gross mistake in a ministry's workflow.

This consequence of the new legal situation became known to the general public through Bild am Sonntag in December 1968. In January 1969, Der Spiegel pointed out the effects on ongoing Nazi trials.

Application by the Federal Court of Justice

The 5th Criminal Senate of the Federal Court of Justice under Werner Sarstedt ruled on May 20, 1969 that aiding and abetting murder was statute-barred from May 8, 1960 according to the new version of Section 50 (2) StGB. The judges relied on the justification for the law and rejected the other views of the Federal Public Prosecutor , the Court of Appeal and criminal law. The consequence of this was that Art. 1 no. 6 EGOWiG led to a disguised amnesty for the majority of the assistants involved in violent National Socialist crimes.

The judgment of the 5th Criminal Senate of the Federal Court of Justice led to the termination of criminal proceedings , as the statute of limitations is an absolute procedural obstacle. This thwarted a series of trials involving employees of the Reich Security Main Office (RSHA) in Berlin that had already been prepared by the public prosecutor's office .

The judgment of the 4th Criminal Senate of the Federal Court of Justice of March 4, 1971 did not change anything, according to which, in the event that the statute of limitations should have occurred with regard to the perpetrator-related murder characteristic of "low motives", this is irrelevant with regard to the affairs of the assistant because through the main offense, the crime-related murder criterion "cruel" was also fulfilled. It is enough that the main perpetrators agreed to the cruel killing and that the accused, as an assistant, knew this. On this basis, John Demjanjuk in 2011 and Oskar Gröning in 2015 were convicted.

Legal policy evaluation

At first everyone wanted to believe that there was a breakdown that Eduard Dreher had acted unintentionally. The Bundestag agreed in 1969 to describe it as a legal failure. In 1981, State Secretary Günther Erkel ( SPD ) wrote to Eduard Dreher how much he regretted that this had become the subject of "throws". Eduard Dreher replied: “I am satisfied that the house is by my side in this unpleasant matter.” For a long time, it was not possible to provide direct evidence of Eduard Dreher's authorship due to the inaccessibility of the files. "In the absence of self-statements, contemporary historical research is left with only assumptions, to put it in a somewhat more exalted way: a rational reconstruction".

The draft laws of the OWiG and the StGB were coordinated in July 1964. The head of the commission responsible for the OWiG, Karl Lackner , therefore consulted Eduard Dreher, who was responsible for the draft criminal code. The files of the decisive department head meeting in the Federal Ministry of Justice in 1964 have not yet been found, in which the lead speaker and author of the veiled amnesty should be listed: "The files have probably been cleaned up". Ulrich Herbert put forward the thesis in his best biography that the amnesty was initiated by Achenbach and Best .

It should not be overlooked that the "amnesty" meant considerable work relief for the public prosecutor's offices and courts and partly also explains "their great willingness with which the regulation of Section 50 (2) StGB was used to achieve a fairly extensive amnesty" .

The historian Stephan A. Glienke clearly points out that the focus on Eduard Dreher and Achenbach "obscures the view of the actual problem":

“Even before the amendment, the Legal Committee of the Bundestag would have had the opportunity to reformulate the text. The regional justice administrations, the BGH and the federal prosecutor's office also had the opportunity to familiarize themselves with the draft and its potential consequences and to raise objections at an early stage. However, they did not take advantage of these opportunities. […] Last but not least, it should be noted that former victims of the Nazi regime were also represented in the German Bundestag, and it can be assumed that they would have refused to consent to the EGOWiG if they had had any idea of ​​its consequences. "

The latter, however, is very questionable in view of the consensus prevailing in the Federal Republican society at the time to keep silent about the past under all circumstances .

In 2012, Minister of Justice Sabine Leutheusser-Schnarrenberger commissioned a project in which a historian's commission dealt with the early phase of the BMJ. The commission under the historian Manfred Görtemaker and the legal scholar Christoph Safferling worked out its results by autumn 2016. In the final report, there were also indications of a deliberate manipulation by Eduard Dreher in the question of the subsequent statute of limitations. After that Eduard Dreher was the only one “who had a motive, the means and the opportunity to manipulate the legislation”. As evidence, they name his technical competence and his "reassuring" comments to the head of the Justice Department at a time when the matter was already known and could have been repaired.

Others ask whether the greater scandal the adoption of EGOWiG or under Werner Sarstedt was handed down BGH judgment and whether it is a violation of the law handle.

Artistic reception

Ferdinand von Schirach adapted the 2011 statute of limitations in his novel The Collini case . In April 2019, the literary film of the same name was released in German cinemas.

literature

  • Michael Greve: Amnesty of Nazi aides - a glitch? The amendment to Section 50 (2) of the Criminal Code and its effects on Nazi criminal prosecution . In: Critical Justice . No. 3 , 2000, pp. 412–424 ( nomos.de [PDF; 2.8 MB ; accessed on January 27, 2019]).
  • Manfred Görtemaker , Christoph Safferling : The Rosenburg files. The Federal Ministry of Justice and the Nazi era. CH Beck, Munich 2016, ISBN 9783406697685
  • Marc von Miquel: Punish or amnesty? West German Justice and Politics of the Past in the Sixties . 1st edition. Wallstein, Göttingen 2004, ISBN 978-3-89244-748-1 .
  • Hubert Rottleuthner : Did Dreher turn? About incomprehensibility, incomprehension and incomprehension in legislation and research (= Kent D. Lerch [Hrsg.]: The language of law . Volume 1 : Understand right ). 1st edition. De Gruyter, Berlin 2004, ISBN 978-3-11-018142-5 , pp. 307-320 ( bbaw.de [PDF; 198 kB ; accessed on January 27, 2019]).

Individual evidence

  1. ^ Law / Nazi crimes: Cold statute of limitations . In: Der Spiegel . No. 3 , 1969, p. 58-61 ( online ).
  2. ^ Jörg Friedrich : The cold amnesty: Nazi perpetrators in the Federal Republic . Fischer-Taschenbuch-Verlag, Frankfurt am Main 1984, ISBN 3-596-24308-4 .
  3. ↑ BGBl. 1965 I p. 315
  4. ↑ Federal Law Gazette 1969 I p. 1065
  5. ↑ Miquel: Ahnden , p. 333ff; Annette Weinke : The persecution of Nazi perpetrators in divided Germany - coming to terms with the past 1949 - 1969 or: a German-German relationship history in the Cold War, Paderborn / Munich (inter alia) 2002, p. 303 .
  6. ^ Michael Greve: Amnesty of Nazi Aides - A Breakdown? The amendment of Section 50 (2) StGB and its effects on Nazi criminal prosecution Kritische Justiz 2003, pp. 412–424.
  7. ↑ Ingo Müller : The criminal handling of the Nazi past. Info letter No. 94 (2005) of the RAV
  8. ↑ Norbert Seitz: Deutschlandfunk Background "Limitation of 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 .
  9. ^ So: Gerhard Lüdecke: Hanauer Jewish jurists in the time of the Third Reich. In: New magazine for Hanau history = messages from the Hanauer Geschichtsverein 1844 eV 2018, pp. 206-252 (247).
  10. ^ Görtemaker: Die Rosenburg , p. 418.
  11. ↑ Miquel: Ahnden , p. 327f.
  12. ^ Görtemaker: Die Rosenburg , p. 407.
  13. ^ Görtemaker: The Rosenburg File , p. 420.
  14. ↑ Help for assistants , Der Spiegel, January 6, 1969
  15. ↑ ARD: File D - the failure of the post-war justice system , approx. Min. 29
  16. ↑ a b c d Oliver García: The urban legend by Eduard Dreher , delegibus.com from July 25, 2015, accessed on December 17, 2015.
  17. ↑ BGH, judgment of May 20, 1969 - 5 StR 658/68 = NJW 1969, 1181 ff.
  18. ↑ BT-Drs. 5/1319: EGOWiG with justification Annex 1, p. 61 ( PDF )
  19. ↑ Rottleuthner.
  20. ↑ BGH, judgment of March 4, 1971 - StR 386/70
  21. ^ NN: Self-amnesty in the ministry . In: Frankfurter Allgemeine Zeitung of February 6, 2013, p. 4.
  22. ↑ Rottleuthner.
  23. ^ Greve: Amnesty .
  24. ↑ Ulrich Herbert: Best. Biographical studies on radicalism, worldview and reason. 1903-1989. 3. Edition. Dietz, Bonn 1996, ISBN 3-8012-5019-9 , p. 510.
  25. ↑ Rottleuthner.
  26. ↑ Stephan Alexander Glienke: The de facto amnesty of desk criminals. In: Joachim Perels, Wolfram Wette (Ed.): With a clear conscience. Military power judges in the Federal Republic and their victims. Berlin 2011, pp. 262–277, here pp. 274–275.
  27. ↑ www.uni-potsdam.de
  28. ↑ Funding and scope of the research project on the Nazi past in the Federal Ministry of Justice, Bundestag printed paper 17/10495 of August 16, 2012: The Federal Government's response to the small question from the BÜNDNIS 90 / DIE GRÜNEN u. a. - 17/10364 - ( PDF ).
  29. ^ Görtemaker: The Rosenburg File , p. 420.
  30. ↑ Sven Felix Kellerhoff: The brown shadows of the Rosenburg. In: THE WORLD. Archived from the original on April 21, 2019 ; accessed on October 10, 2016 .
  31. ↑ Wilfried Küper : Remembrance work: The judgment of the Federal Court of Justice of May 20, 1969 on the statute of limitations for Nazi murder assistance - a misjudgment? JZ 2017, pp. 229–236.