Existing comment:
[8 Front]
Discrimination by law?
What Remained of Nazi Law After 1945?
01 Criminalization of Homosexuals
Not only did many of the legal personnel of the Nazi regime remain in office in the young Federal Republic – many laws also remained in force. Only evidently unjust laws were abolished or amended by the Allies and the Federal Republic.
In the Criminal Code in particular, Nazi influences remain to this day, for example in the sections on murder (Section 211 of the Criminal Code), the reform of which is still under discussion. The competent actors in the BMJ did too little to bring about a constitutional renewal of the laws.
In significant cases, they repeatedly adhered to the status quo, for example concerning the punishability of homosexuality.
National Socialism had an evident influence on State Secretary Walter Strauss' attitude to homosexuality. He favoured the strict punishment of homosexuals in the civil service who used their position to support homosexuals. To substantiate this view, Dr. Strauss referred to the Röhm Putsch of 1934. Nazi propaganda had presented the murder of Ernst Röhm and the SA leadership as the suppression of a supposed homosexual conspiracy.
02 Stock Corporation Legislation
The continuation of Nazi law was not limited to criminal law. In supposedly politically less highly charged areas such as civil and commercial law, the Federal German legislator followed the law of the Nazi period. An example is the Stock Corporation Act of 1937 with its decision to strip the general meeting of shareholders and the supervisory board of their powers and to give the Executive Board practically unlimited management powers.
"The Board has to manage a company on its own responsibility as required to ensure the well-being of the operations and their supporters and the general benefit of the people and the Reich."
(Section 70 (1), Stock Corporation Act of 1937)
This wording allowed large companies to be controlled in the interests of Nazi ideology, particularly the war economy. The legislator of 1937 distrusted shareholders and the supervisory boards elected by them. "Operation managers" were to have their say. After 8 May 1945, the Stock Corporation Act of 1937 remained in force for another twenty years. Even today, shareholders and supervisory boards have very weak codetermination rights.
Stock corporation legislation shows the connection between personnel-based and content-based continuities. Dr. Ernst Geßler was in charge of stock corporation legislation at the BMJ for years. He had previously collaborated on the reform of the Stock Corporation Act of 1937 at the Reich Ministry of Justice. Geßler remained distrustful of the effectiveness of democratic decisions in companies.
Inconsistency in dealing with the Nazi past:
Dr. Ernst Geßler, stock corporation law expert and former Nazi Party member, is handed the Order of Merit of the Federal Republic of Germany by Gerhard Jahn, Federal Minister of Justice. During the Nazi period, Jahn was deemed to be a "half-Jew"; his mother was murdered in Auschwitz concentration camp.
1871
Section 175 of the Criminal Code criminalises "unnatural fornication" between men.
1935
The Nazi regime strengthens Section 175, but in particular, the Reich Court changes its jurisprudence, enabling even acts involving no physical contact to be punished as "fornication". There is a dramatic increase in the number of homosexuals subject to criminal prosecution.
1945
Section 175 of the Criminal Code remains in force unchanged.
1951/1967
On two occasions, the Association of German Jurists speaks out in favour of decriminalising homosexuality. Medical associations and the Grand Criminal Law Commission deployed by the BMJ also plead in favour of decriminalisation. However, civil servants at the BMJ hold fast to punishability, also using arguments from the Nazi period.
1969
Homosexual acts between adults are decriminalised. Between 1945 and 1969, approximately 50,000 men were sentenced under Section 175 of the Criminal Code.
1994
Discriminatory youth protection regulations in the legislation governing sexual offences are lifted and Section 175 of the Criminal Code is fi nally deleted.
2017
With the Act of 17 July 2017, individuals who had been convicted of consensual homosexual acts after 1945 were criminally rehabilitated: their judgments were annulled by law. Furthermore, they are now entitled to monetary compensation for suffering the stigma of a criminal record and the deprivation of liberty associated with their criminal judgments. |