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Should murder be subject to a statute of limitations?
The Federal Ministry of Justice and the Statue of Limitations for Nazi Crimes
01 Cold Amnesty
In 1968, a limitation of Nazi crimes unintended by the legislator took place. Discussions continue to this day as to how this "limitation mistake" could have happened. It has often been suspected that Dr. Eduard Dreher, who was in charge of criminal law reform at the BMJ, sneaked this "cold amnesty" past the legislator. It may certainly be assumed that he was well aware of the consequences and knowingly did nothing. Dr. Dreher profited personally from the amendment since in 1968 he had to reckon on being called to account for his Nazi past.
02 Did Dreher Manipulate the Situation?
24 MAY 1968
The Bundestag adopts the Introductory Act to the Act on Regulatory Offences. It includes an amendment to Section 50 of the Criminal Code. The Act is to come into force on 1 October 1968.
17 SEPTEMBER 1968
Rudolf Schmitt, Judge in the Fifth Criminal Senate of the Federal Court of Justice, tells a member of staff at the BMJ that the amendment to the Act could result in ongoing criminal proceedings for Nazi crimes being stopped on account of the statute of limitations.
23 SEPTEMBER 1968
Richard Sturm, Head of Division at the BMJ, passes on the information orally to his superior Dr. Eduard Dreher. Dreher does nothing.
26 SEPTEMBER 1968
Richard Sturm informs Dr. Dreher and the Head of Directorate-General Hans-Joachim Krüger in writing of the information from Rudolf Schmitt, a Judge at the Federal Court of Justice. Neither State Secretary Horst Ehmke nor Federal Minister of Justice Gustav Heinemann is informed of the problem. Thus, no attempt is made to amend the act at short notice.
1 OCTOBER 1968
The Introductory Act to the Act on Regulatory Offences (Einführungsgesetz zum Gesetz über Ordnungs widrigkeiten – EGOWiG) comes into force.
20 MAY 1969
The Fifth Criminal Senate of the Federal Court of Justice decides that "base motives", such as racial hatred, are special personal characteristics within the meaning of the new Section 50 II of the Criminal Code. This means that all cases of being an accessory to murder on account of racial hatred become statute-barred.
Under the 16th Amendment to the German Criminal Code (Strafgesetzbuch - StGB) of 1979, the statute of limitations for murder was lifted in the cases of perpetrators and accomplices (accessories) for all offences not yet statute-barred before this date. Thus, today, Nazi crimes can be prosecuted.
03 Revised Version Section 50 II of the Criminal Code 1968
The following second paragraph was inserted into Section 50 of the Criminal Code:
"(2) If special personal characteristics, conditions or circumstances (particularly personal traits) are lacking in the case of an accomplice on which to establish the criminal liability of a perpetrator, his punishment shall be mitigated in accordance with the regulations on the punishment of an attempt."
04 The Effect of the "Statute of Limitations Mistake"
"If special personal traits are lacking (...)"
From 1969, the Federal Court of Justice treated racial hatred as a "personal trait".
"(...) in the case of an accomplice"
From the 1950s, people who obeyed orders to kill Jews were regarded as accomplices (accessories) and not as perpetrators.
"(...) the sentence shall be mitigated."
The sentence was now reduced. From now on, the maximum sentence was 15 years' imprisonment and not, as previously, life imprisonment.
In the legislative process, a provision that reduced the maximum sentence without shortening the period of limitations is forgotten. |