Prohibition Act 1947

Basic data
Title:	Prohibition Act 1947
Long title:	Prohibition Act 1947
Type:	Federal Constitutional Law
Scope:	Republic of Austria
Legal matter:	Association and assembly law, subsidiary criminal law
Date of law:	Prohibition Act: May 8, 1945 StGBl. No. 13/1945; Prohibition Act 1947: February 17, 1947 Federal Law Gazette No. 25/1947
Effective date:	June 6, 1945 and ; February 18, 1947
Last change:	Federal Law Gazette No. 148/1992
	Please note the note on the applicable legal version !

The Prohibition Act , in short as VerbotsG , is an Austrian Federal Constitutional Act that is still valid today , with which the NSDAP was banned and denazification was legally regulated in Austria. The law was passed by the provisional state government just before the end of the Second World War in Europe on May 8, 1945 .

In 1945 , Wilhelm Malaniuk justified the admissibility of the non-application of the prohibition of retroactive effects in the Prohibition Act, which is important in legal dogmatics : "Because these are criminal acts which violate the laws of humanity so grossly that such lawbreakers are not entitled to the guarantee function of the offense."

In the course of a comprehensive amendment in 1947, the law was renamed the Prohibition Act 1947 .

The last change so far took place in 1992 (as of December 2017). Among other things, the Prohibition Act forbids any activity in the sense of National Socialism , which is usually referred to as "re- activity " for short. As “political offenses”, the criminal offenses of the Prohibition Act fall within the express jurisdiction of the jury . Unlike other norms of ancillary criminal law and also unlike the Criminal Code itself, the law has constitutional status.

content

With the resolution of the Prohibition Act, the NSDAP, its military associations and all organizations associated with it were officially dissolved and banned. Their ownership fell to the Republic of Austria. A start-up and re-establishment for National Socialist goals is also prohibited. In the same way, all mandates that were obtained during this time on the proposal of the NSDAP in any corporation or professional representation expired.

construction

The law contains 29 paragraphs , which are divided into six articles:

Article I: Prohibition of the NSDAP (§§ 1–3j)
Article II: Registration of the National Socialists (§§ 4–9)
Article III: Special provisions under criminal law (§§ 10–16)
Article IV: Provisions on persons liable to atonement (§§ 17-23)
Article V: People's Courts (§§ 24–26) (repealed)
Article VI: Exceptions (§§ 27-29)

National Socialist Organizations

All National Socialist organizations and institutions were banned. The following organizations are explicitly mentioned:

the NSDAP
the defense associations of the NSDAP:
- the SS
- the SA
- the NSKK
- the NSFK
the Nazi soldiers' ring
the NS officers' union

Re-employment prohibition

In order to enforce the ban, activity in the National Socialist sense was banned and made a criminal offense. These criminal offenses are regulated in Sections 3 to 3i and fall under the express jurisdiction of the jury. Colloquially, these criminal offenses are also simply called “re-activity”, although the law speaks of “activity in the National Socialist sense”. The public "denial, trivialization, approval and justification" of National Socialist crimes was banned.

In § 3 of the Prohibition Act it is programmatically forbidden to work for the NSDAP or its goals in any way.

§ 3a threatens the establishment or active support of a National Socialist organization with 10 to 20 years imprisonment. If the perpetrator is particularly dangerous, a life sentence is also possible. The prohibited establishment includes the restoration or maintenance of dissolved National Socialist organizations such as the NSDAP, SS or SA, as well as the establishment of a new organization whose purpose is National Socialist. The Prohibition Act defines active support as the recruiting of members, leading activity in such a circumscribed organization and their support through the provision, production and procurement of funds, weapons and infrastructure.

Section 3b of the Prohibition Act, which criminalizes participation in and other support of a National Socialist organization, serves as a catch-all offense. The range of punishment is 5 to 10 years, but if the offender is particularly dangerous, 20 years imprisonment.

According to § 3c, anyone who reports himself according to §§ 3a or 3b remains exempt from punishment. The prerequisite, however, is that the authorities have not yet found out about it, that all knowledge about the illegal organizations is disclosed and that damage has been prevented.

The public invitation and induction to an act prohibited according to § 1 or § 3 and its distribution through printed works, pictures and the like is prohibited in § 3d and threatens a prison sentence of 5 to 10 years, if the perpetrator is particularly dangerous, 20 years.

Sections 3e and 3f represent a special qualification, which makes appointing and carrying out a serious crime (murder, robbery, serious bodily harm, arson) as a means of Nazi activity particularly punishable (10 to 20 years imprisonment or for particular danger of the offender life imprisonment).

Section 3g again forms a catch-all offense that is intended to cover any other form of NS activity that is not already covered by the Prohibition Act in Sections 3a to 3f. The penalty range is 1 to 10 years or, in severe cases, 20 years imprisonment.

In 1992, with the new § 3h, the denial, trivialization, approval and justification of "National Socialist genocide or other National Socialist crimes against humanity" was forbidden, if this was "in a printed work, on the radio or in another medium or [...] otherwise publicly in a way that it becomes accessible to many people ”. The penalty for this is 1 to 10 years' imprisonment, and up to 20 years for particularly dangerous situations. Among other things, Holocaust denial was explicitly prohibited.

Section 3i is a special feature of Austrian criminal law, as it defines an obligation to report crimes to the authorities within the meaning of the Prohibition Act. For criminal liability, however, the report must be intentionally omitted and the person concerned must have credible knowledge of the crime. The range of sentences is 1 to 10 years imprisonment.

denazification

All parts following Article 1 regulate denazification in Austria. However, due to an amnesty, these provisions have been suspended since 1957 and are therefore no longer applicable.

The Prohibition Act provided for persons who had their normal place of residence in Austria between 1933 and 1945 and were members of the NSDAP or one of its organizations, such as the SS or SA, to register. These people had to pay atonement contributions and do work (mostly in reconstruction). Persons subject to registration were excluded from public law or other employment relationships with the federal government, the federal states (with the city of Vienna), the municipalities and other public corporations. They were also banned from working in the private sector (managerial positions in business, procurator, company management, lawyer, notary, etc.). They were also excluded from voting in the National Council election in 1945 .

applicability

In a ruling dated November 29, 1985, the Constitutional Court ruled that the Prohibition Act not only applies to criminal proceedings, but must also be taken into account and enforced by every court and administrative authority within the respective areas of responsibility. As a result, all legal acts that directly or indirectly aim to revive National Socialist ideas are considered void.

The Supreme Court developed following the intensification of the Prohibition Act by the Prohibition Act Amendment 1992, a proof of topics ban :

"The federal constitutional legislature [...] has made it clear ex lege that the National Socialist genocide and the other National Socialist crimes against humanity do not require any further evidence-based discussion in criminal proceedings, from which it follows that this subject of evidence is beyond evidence. [...] evidence of these facts is therefore out of the question. "

Controversies over the prohibition law

freedom of speech

With regard to the dissemination of National Socialist ideas, the Prohibition Act provides for far-reaching constitutional restrictions on freedom of expression and is in conflict with Article 10 of the European Convention on Human Rights on freedom of expression. The 1947 Prohibition Act constitutes a legal reservation on freedom of expression , which is made possible by Article 10, Paragraph 2 of the ECHR. Freedom of expression can therefore be subject to restrictions that are necessary in a democratic society to maintain order, to protect the good reputation or the rights of those affected by expressions of opinion. In other countries too, the approval of criminal offenses or sedition is punishable.

The European Court of Human Rights has always dismissed complaints against judgments based on the Prohibition Act if the complaint is based on the argument of an inadmissible restriction of freedom of expression within the meaning of Article 10 of the European Convention on Human Rights (ECHR) . In this context, the European Court of Human Rights relies on Article 17 of the ECHR, which prohibits the abuse of the rights and freedoms set out in the Convention by enemies of a free and democratic order. The Court ruled the Prohibition Act:

"... can be justified as being necessary in a democratic society in the interests of national security and territorial integrity as well as for the prevention of crime."

In a guest comment in the Wiener Zeitung on January 17, 2007, the lawyer Herbert Schaller , who regularly represents right-wing extremists and history revisionists in criminal courts, wrote that "factual expressions of opinion may be combated, but not prohibited under criminal law" . He further criticizes Section 3g of the Prohibition Act as “completely indeterminate in content” and accuses the Supreme Court of having “ acted politically desirable” by confirming the guilty verdict against Irving in September 2006 . This publication prompted the documentation archive of the Austrian resistance to criticize the then editor-in-chief of the Vienna newspaper Andreas Unterberger .

In the course of David Irving's conviction, the discussion about the prohibition law flared up again: Well-known Austrian journalists such as Michael Fleischhacker and Christian Ortner and the sociologist Christian Fleck openly advocated the abolition and justified this, among other things, with the restriction of freedom of expression, the lack of preventive Effect and the possibility of interpreting this in relevant circles as "political conviction justice".

The lawyer Milosz Matuschek sees this as a misunderstood liberalism and sees the appeal to freedom of expression in this context as its abuse, since debates about the existence of the Holocaust are sham debates through which radical right-wing propaganda is ultimately spread. The lawyer Alfred Noll opposed Fleischhacker, Ortner and Fleck journalistically, which triggered a lengthy media debate.

The Jewish publicist Henryk M. Broder is against the prohibition law because it "helps idiots to stage themselves as martyrs in the fight for historical truth."

Sentence

Some supporters of the Prohibition Act also criticized the range of punishments as being too high in relation to other offenses. For example, the lawyer Richard Soyer , spokesman for the Association of Defense Lawyers , calls for the maximum sentence to be reduced from ten to three years.

Jurisdiction

The scientific director of the DÖW until 2014, Brigitte Bailer-Galanda , was of the opinion in 2006 that instead of the jury, only professional judges should decide on crimes under the Prohibition Act in the first instance, as the jury would often not recognize anti-Semitism or Nazi crimes as such . Therefore, it is often difficult for the public prosecutor to reach a conviction within the framework of a jury trial.

statistics

The articles following Article 1, which concern denazification, especially the registration obligation and the provisions on the consequences of atonement, were repealed by the NS amnesty in 1957. However, Article 1 with Sections 1 to 3j relating to re-employment still forms the basis for criminal negotiations and convictions today.

Sections 3 to 3j have been amended several times over the years. In 1950 the death penalty was replaced by life-long, heavy dungeons , and the statute of limitations was extended in 1965 and 1968. The last amendment was made in 1992; at that time the minimum penalties were reduced and the above-described § 3h was inserted.

In the years 1999 to 2005, a total of 191 convictions were made in accordance with the provisions of the Prohibition Act. The most famous recent case is the final conviction of Holocaust denier David Irving in 2006.

In 2017 there were 93 convictions for re-employment under the Prohibition Act. There were 82 convictions in 2016, 74 in 2015 and only 51 in 2014.

Web links

Prohibition Act in the Legal Information System of the Republic of Austria (RIS)
Prohibition law in the political dictionary for young people
Prohibition Act on nachkriegsjustiz.at
For Herbert Schaller see the documentation archive of the Austrian resistance - functionaries, activists and ideologues of the right-wing extremist scene in Austria (PDF; 1.6 MB)
Overview of the Austrian legal situation in the area of "National Socialist Revival and Racism" The Austrian Delegation to the OSCE-Conference on Anti-Semitism, 2004
Punishable signs and gestures University of Salzburg, no year
Winfried Platzgummer : The criminal fight against neo-Nazism in Austria ÖJZ 1994, 753

Individual evidence

↑ Constitutional Act of May 8, 1945 on the prohibition of the NSDAP (Prohibition Act), StGBl. No. 13/1945

↑ cf. u. a. Claudia Kuretsidis-Haider in: Nazi Trials and the German Public - Occupation, Early Federal Republic and GDR (2012), p. 415; Claudia Kuretsidis-Haider “The people sit in court” (2006), p. 55ff; Malaniuk, textbook, p. 113 u. 385.

↑ Federal Constitutional Law of February 6, 1947 on the Treatment of the National Socialists (National Socialist Law ), Federal Law Gazette No. 25/1947

↑ Federal Constitutional Act of March 14, 1957, with which provisions of the National Socialist Act, Federal Law Gazette No. 25/1947, are amended or repealed (NS-Amnestie 1957) NS-Quellen.at, accessed on October 22, 2018.

↑ GZ: G175 / 84

↑ ^a ^b Florence Benoît-Rohmer et al. (2005). The requirements of fundamental rights in the framework of the measures of prevention of violent radicalization and recruitment of potential terrorists - Opinion n ° 3-2005, p. 29. Online as PDF ( Memento of November 21, 2006 in the Internet Archive ) (5. May 2006)