Ordinance of the Reich President for the protection of the people and the state

The ordinance of the Reich President for the protection of the people and the state of February 28, 1933 ( RGBl. I, p. 83) was an emergency ordinance in National Socialist Germany . It was issued after the Reichstag building in Berlin had burned the night before . Because of the reference to the Reichstag fire , the ordinance is also called the Reichstag fire ordinance .

The Nazi-German national government under Adolf Hitler claimed that the communists had set the building on fire and wanted to call for a revolution. This is how they established the regulation that suspended civil rights . Thousands of opponents of the Reich government were arrested. The Reichstag Fire Ordinance , along with the ordinance of February 4 and the Enabling Act of March 24, 1933 , was one of the most important foundations of the National Socialist dictatorship .

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Reichstag Fire Ordinance of February 28, 1933

The far-reaching regulation was issued as an emergency ordinance by Reich President Paul von Hindenburg under Article 48 ( state of emergency ) of the Weimar Reich constitution . Allegedly it served "to defend against communist acts of state endangering violence".

Restrictions on personal freedom, the right to freedom of expression , including freedom of the press , the right of association and assembly , encroachment on the secrecy of letters , mail , telegraphs and telephones , orders for house searches and confiscations as well as restrictions on property outside of those otherwise certain legal limits have been declared legal. The "Reichstag Fire Ordinance" initially provided the legal basis for a wave of arrests of opposing candidates for the upcoming Reichstag election and from then on for interventions of the type described against all persons and associations whose existence or activity was viewed as a hindrance to the intended transformation of Germany in the National Socialist sense.

The second part of the regulation gave the Reich the right to intervene in the government of the countries. It formed the basis for the synchronization and centralization of the entire state structure of the German Reich in the period that followed, as it made all federal reserve rights available in their entirety.

The ordinance issued by the Reich President was countersigned by Reich Chancellor Adolf Hitler, Reich Minister of the Interior Frick and Reich Minister of Justice Franz Gürtner .

The constitutionally dubious ordinance paved the way from the Weimar Republic to a totalitarian dictatorship .

Five days later, the Reichstag election on March 5, 1933 took place under the conditions of the Reichstag Fire Ordinance.

prehistory

Kurt von Schleicher , Hitler's non-party predecessor in the office of Reich Chancellor, threatened the Communist Party in a radio speech on December 15, 1932 with the issue of a "sharp" regulation:

"[...] The elimination of all deliberate disruptions necessary to calm the economy has unfortunately made a large number of exceptional conditions necessary in the past. I openly admit that I would consider it disastrous if we in Germany could not do without these strict regulations in the long term. I have therefore asked the President of the Reich to take the reassurance that has undoubtedly occurred as an opportunity to repeal such exceptional provisions in order to finally return to normal legal relationships. The President of the Reich wants to comply with this proposal, trusting the healthy spirit of the orderly population, but has expressed that he would not hesitate to issue a strict ordinance for the protection of the German people if his expectations were wrong. In this context, I would like to warn the professional troublemakers as well as a certain irritating, atmosphere-poisoning press that such a regulation is ready in the drawer and that it is indeed an excellent piece of work. I hope that their application will be just as unnecessary as the use of the Reichswehr. But I do not want to leave the anti-state communist movement in doubt that the Reich government will not shy away from draconian exceptional provisions against the communist party if it should abuse the loosening of the reins to increase incitement to hatred of the population. [...] "

In this tradition stands the decree of the Reich President for the protection of the German people , issued by Reich President Paul von Hindenburg on February 4, 1933 and countersigned by Reich Chancellor Hitler, Interior Minister Frick and Justice Minister Gürtner, which considerably restricted freedom of assembly and the freedom of the press. The Reichstag fire ordinance, however, went far beyond Schleicher's plans.

The text of the ordinance followed the model of the emergency ordinances of the Reich President for the state of emergency developed at the beginning of the Weimar Republic, which later came into effect again and again, most recently, but now under the mere pretext of disrupting security and order, on the occasion of the Prussian strike on July 20, 1932. The main innovation of the Reichstag Fire Ordinance, however, was that now the violence was not transferred to the military, but remained with the Reich government or, as far as regional responsibilities were concerned, was also transferred to it.

Legal evaluation

As early as 1941, Ernst Fraenkel in his book Der Doppelstaat referred to the Reichstag Fire Ordinance as the “constitutional document of the Third Reich ”, since it became the legal basis of the National Socialist regime instead of the suspended constitution. Together with the Enabling Act, it established the permanent civil state of emergency and thus the uncontrolled abundance of power with which all subsequent state measures were legitimized .

According to Article 48 of the Weimar Constitution, the following principles had to be observed when issuing and implementing emergency ordinances:

Public order had to be “seriously” endangered.
Restoring order had to be the goal of the state of emergency.
The restriction of fundamental rights was only allowed "temporarily".

It is disputed whether the application of the ordinance of February 28, 1933 complied with these requirements:

Whether there was a threat to public order was subject to the assessment of the evidence by the Reich President.
The state of emergency was used through its "expanded interpretations" to restore order in the interests of the government, not the constitution.
The regulation did not provide for an end to the fundamental rights restrictions, these should apply “until further notice”.

This enabled the Nazi regime to give its rule an apparent legality.

Extension of § 5

In Section 5, the ordinance contained a list of crimes that were no longer punishable by life imprisonment , but now with the death penalty . On March 29, 1933, the period of validity of this section 5 was retrospectively extended by the law on the imposition and execution of the death penalty ("Lex van der Lubbe") , so that it could be applied to offenses since January 31, 1933. This violated the prohibition of retroactive effects , which had been one of the fundamental principles of the rule of law since the Enlightenment . Such retroactive application of criminal laws was already not uncommon in the Weimar Republic, since the Republic Protection Ordinance of Reich President Ebert and the Republic Protection Act of 1922 had established a retroactive effect - even indefinitely - of criminal provisions, some of which also threatened the death penalty.

application

The ordinance was initially used as legitimation in the fight against the communists, as its introductory sentence suggested: "On the basis of Article 48, Paragraph 2 of the Reich Constitution, the following is decreed to ward off communist acts of violence that endanger the state". However, since no limitation of the sphere of activity to communists was mentioned in the regulation itself, the scope could be extended at will, and thus the entire German people lost all of the above-mentioned basic rights . The ordinance on the prohibition of publications was also applied. One example is the 1938 ban on the " Preacher and Catechist ", which a handout from the Erich Wewel publishing house provides detailed information about.

Repeal

The penal provisions enacted in Section 5 were explicitly repealed in the Control Council Act No. 55 of June 20, 1947.

literature

Lothar Gruchmann : Justice in the Third Reich. 1933-1940. Adaptation and submission in the Gürtner era (= sources and representations on contemporary history. Vol. 28). 3rd, improved edition. Oldenbourg, Munich 2001, ISBN 3-486-53833-0 .

Thomas Raithel, Irene Strenge: The Reichstag Fire Ordinance . Foundation of the dictatorship with the instruments of the Weimar state of emergency. In: Vierteljahrshefte für Zeitgeschichte . Vol. 48, 2000 , pp. 413-460 (PDF; 7.13 MB).

Andreas Schwegel: The police concept in the Nazi state. Police law, legal journalism and judiciary 1931–1944 (= contributions to the legal history of the 20th century. Vol. 48). Mohr Siebeck, Tübingen 2005, ISBN 3-16-148762-1 (also: Göttingen, University, dissertation, 2004).