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Text of the letter report sent to each Member of the Congress of Deputies regarding the annulment of National Socialist laws and sentences in Germany.
Madrid, 16 February 2010
To all Members of the Congress of Deputies :
We write to you on the second anniversary of the entry into effect of "Law 52/2007, of December 26th, to recognise and broaden rights and to establish measures in favour of those who suffered persecution or violence during the Civil War and the Dictatorship", which is considered by our associations to be, at least, ineffective in law and, more seriously, null and void.
We are not going to use this occasion to analyse the law. However, we wish to take advantage of this second anniversary to make you aware of some facts we consider relevant in the hope that it will encourage a general reflection about one of the issues that causes us most concern. That issue is the annulment of certain legal and judicial acts of the Francoist regime, such as summary trials, convictions by illegal courts and other punitive sanctions which we believe to be illegitimate in origin and irredeemably illegal in international law.
Contrary to what has been stated publicly, the adoption of this measure does not by any means require any modification to the Constitution nor does it affect legal security.
To encourage said reflection, something we consider essential, we have decided to advise you as concisely and specifically as possible (and including the minimum information required) as to the manner in which the nullity of similar acts was achieved in the Federal Republic of Germany, a country which had to confront this matter in respect of the legal acts of the National Socialist regime.
A. Validity of the laws of the National Socialist regime after 1945.
At the end of the Second World War and the commencement of the period of occupation of Germany, the allied powers gave priority to the need to eliminate from the legal system the laws which served to sustain the National Socialist regime.
As a result, immediately after the Military Governments of Occupation took over their respective zones, they started the process of annulling the principal Nazi laws. By virtue of Law No. 1 of the Military Government - Germany "Abrogation of Nazi Law" (July 1945) and Law No. 1 of the Control Council for Germany of 20th September 1945, the principal political and discriminatory laws of the National Socialist regime were deprived of their effects, including the racial laws known as the "Nuremberg Laws".
Article 1 of the Law No. 1 of the Allied Control Council deprived the fundamental National Socialist laws of their effects, stating them to be "of a political or discriminatory nature upon which the Nazi regime rested". This Law also covered any supplementary or explanatory laws, ordinances and decrees. Inter alia, the following laws were deprived of any effect:
- Law for the Protection of National Symbols (Gesetz zum Schutz der nationalen Symbole) of 19 May, 1933, RGB1 I/285
- Law against the creation of Political Parties (Gesetz gegen die Neubildung von Parteien) of 14 July, 1933, RGB1 I/479,
- Law for securing the Unity of the Party and State (Gesetz zur Sicherung der Einheit von Partei und Staat) of 1 December, 1933, RGB1 I/1016,
- Law for the amendment of the Provisions of Criminal Law and Procedure (Gesetz zur Änderung von Vorschriften des Strafrechts und des Strafverfahrens) of 24 April, 1934, RGB1 I/341,
- Law for protection of German Blood and German Honour (Gesetz zum Schutze des Deutschen Blutes und der Deutschen Ehre) of 15 September, 1935, RGB1 I/1146,
- Reich Citizenship Law (Reichsbürgergesetz) of 15 September, 1935, RGB1 I/1146
- Prussian Law concerning the Gestapo (Preussisches Gesetz über die Geheime Staatspolizei) of 10 February, 1936, G.S.21
- Ordinance for the reporting of Property of Jews (Verordnung über die Anmeldung des Vermögens von Juden) of 26 April, 1938, RGB1 I/414
- Ordinance concerning proof of German descent (Verordnung über den Nachweis deutschblütiger Abstammung) of 1 August, 1940, RGB1 I/1063
- Decree of the Führer concerning the legal status of the NSDAP (Erlass des Führers über die Rechtsstellung der NSDAP) of 12 December, 1942, RGB1 I/733,
Article II of Law No. 1 of the Control Council went on to provide: " No German enactment, however or whenever enacted, shall be applied judicially or administratively in any instance where such application would cause injustice or inequality, either a) by favouring any person because of his connection with the National Socialist German Labour Party, its formations, affiliated associations, or supervised organizations, or b) by discriminating against any person by reason of his race, nationality, religious beliefs, or opposition to the National Socialist German Labour Party or its doctrines. "
Without going into the extent or the differences in application of the Control Council Law in the various occupied zones of Germany (basically between 1945 and 1949) or of subsequent laws designed to achieve the same purpose, the important point is that from a technical, legal perspective there is no reason why those discriminatory laws - whether political, racial or religious discrimination - should not be declared null and void, just as the democratically elected Spanish Government of 1931 did not think it problematic legally to declare null and void the Criminal Code of the dictatorship of Primo de Rivera (CP 1928).
The Basic Law for the Federal Republic of Germany of 1949, article 123.1 [Continued applicability of pre-existing law] provided that the "Law in force before the Bundestag first convenes shall remain in force insofar as it does not conflict with this Basic Law.".
Similarly, Law No. 1 of the Control Council remained in effect in the Federal Republic of Germany until the promulgation of the First Law Annulling the Law of Occupation, of 30th May 1956. However the annulment of the fundamental National Socialist laws continued in full force and effect.
B. Validity of legal decisions based on National Socialist legislation after 1945.
1. In the period preceding the foundation of the Federal Republic of Germany in May 1949, the first steps taken to annul the legal decisions based on the laws of National Socialism were taken by the allied powers through the authority of the Control Council.
Law No.1 of the Control Council dated 20th September 1945, referred to above and Law No. 11 of 30th January 1946 annulled certain laws and dispositions of the Criminal Code with National Socialist content. Amongst these are the dispositions concerning high treason, attacks on military morale ("Wehrkraftzersetzung") and rendering assistance to the enemy ("Feindbegünstigung").
On 20th October 1945 the Control Council issued Proclamation No. 3 entitled "Fundamental Principles for Judicial Reform". Article II,5 provided: "Sentences on persons unjustly convicted under the Hitler regime on political, racial or religious grounds must be quashed."
Pursuant to article III, entitled "Liquidation of Extraordinary Hitler Courts": "The People's Court, Courts of the NSDAP and Special Courts are abolished and their re-establishment prohibited".
In article V, it provides "Justice will be provided in Germany in accordance with the principles of this proclamation by a system of Ordinary German Courts". This mandate was implemented differently as between the 4 occupied zones.
In the American zone, the recently created Länderrat or German Council of States for U. S. occupied Germany, passed the Law for the reparation of injustice in the administration of criminal law by the National Socialist regime ("Gesetz zur Wiedergutmachung nationalsozialistischen Unrechts in der Strafrechtspflege"), dated 17th April 1946 in accordance with the said article II.5 of Proclamation No. 3 of the Control Council. Section 2 of this Law set out a list of laws including those concerning high treason, attacks on military morale and rendering services to the enemy.
Criminal sentences handed out exclusively on the basis of the laws on the list were automatically annulled when this new Law came into effect. Nullity ipso iure was not conditioned on the place of residence, the seriousness of the penalty, the type of court (People's Court -Volksgerichtshof-, military or ordinary) or its jurisdiction. The convictions based on norms which did not appear on the list could be annulled on a case by case basis by the regional court (Landgericht).
In the zones administered by the United States and the United Kingdom the annulment of these judgments was treated as automatic or on application by an interested party. In the French zone these cases were dealt with by reopening the proceedings ex oficio or annulment on petition. In the Russian zone and in Berlin the convictions were annulled on petition.
2. This divergence in approach continued in West Germany after 1949 due to the legal continuity of the regional states. Their subsequent evolution was not the same in all the zones.
3. The differences led to the enactment of a new law in 1998 at the Federal level, called the "Law to Annul Unjust Sentences Imposed during the National Socialist Administration of Criminal Justice" ("Gesetz zur Aufhebung nationalsozialistischer Unrechtsurteile in der Strafrechtspflege" - NS-Aufhebungsgesetz), of 25th August 1998.
Article 1 provides for the annulment ipso iure of all sentences and convictions handed out by the criminal justice administration from 30th January 1933 in breach of basic principles of justice where the objective was the consolidation of the National Socialist regime and which were based on discrimination for political, military, racial, religious or ideological grounds.
Article 2 contains the definition of "sentences" for the purposes of application under article 1 and specifies that the term includes 1) the decisions of the People's Court (Volksgerichtshof), 2) the decisions of the Councils of War established pursuant to the Councils of War Directive of 15th February 1945, and 3) the decisions based on any of the laws contained in the annex thereto.
The said annex lists 59 laws of various legal ranking from law to supplementary and executing regulation.
In the event that a sentence was based on various criminal provisions and not only on those listed, i.e. not only on provisions which were clearly National Socialist in character, then, in accordance with article 3 of the Law of 1998, the sentence would be annulled when the principal rationale for the sentence was based on National Socialist norms, that is to say, when the part of the sentence based on norms which are not National Socialist in character are of less or secondary relevance in comparison with the part based on discriminatory National Socialist legislation. In the event of doubt, the interpretation is that which most favours the convicted party.
4. The 1998 Law was modified on 23 July 2002 by the "Law Modifying the Law to Annul the National Socialist Sentences" ("Gesetz zur Änderung des Gesetzes zur Aufhebung nationalsozialistischer Unrechtsurteile in der Strafrechtspflege - NS-AufhGÄndG" - Bundestagsdrucksache 14/8276, BGBl. I S. 2714), which extended the annex referred to in article 2.3 to include a series of different groups of victims, including homosexuals and deserters.
5. The polemical aspect remaining was that of the death sentences of military personnel for acts of treason passed in application of articles 57, 59 and 60 of the Military Criminal Code of 1934. The annulment ipso iure provided by the Law of 1998 did not address these convictions in its provisions. Only an analysis of a particular case could lead to a re-examination of the sentence passed
After an intense and impassioned debate, the Bundestag concluded unanimously that those decisions were irreconcilable with the rule of law and the Constitution. On one hand, the vague drafting of these crimes made it possible to include a wide array of acts within the criminal classification of treason, including any act of civil or military disobedience, and on the other hand the only sentence permitted was that of the death penalty.
Thus on 24 September 2009 the Second Law of Annulment of 2009 ("Zweites Gesetz zur Änderung des Gesetzes zur Aufhebung nationalsozialistischer Unrechtsurteile in der Strafrechtspflege - 2. NS-AufhGÄndG"), was passed which incorporated these provisions of the Military Criminal Code within the list of laws contained in the annex to the Law of 1998, with the result that the sentences passed on the basis of those laws are now subject to annulment under that Law.
In 2004 our organization initiated a campaign of awareness in respect of this very serious issue, and our analysis can be found in the report "The question of impunity in Spain and crimes under Franco", available at: http://www.derechos.org/nizkor/espana/doc/impuspa.html
The only purpose of this letter is to urge a thorough, serious and informed consideration of the matters we have set out here. We ask you to do this in good faith.
We hope that this matter will be resolved by the Congress of Deputies rationally and in a way which is compatible with the measures adopted in other European countries which endured similar regimes to that which existed in Spain under General Francisco Franco. We ask you not to leave this task for resolution by future generations.
President Equipo Nizkor
Ana Viéitez Gómez
President of the Association of Relatives and Friends of the 2nd Republic Victims of Reprisals by the Franco Regime
Secretary-General of the Association for the creation of an Archive of the Civil War, the International Brigades, the Children of the War, the Resistance and the Spanish Exile - AGE (Archive of War and Exile)
Impunidad y crímenes franquistas
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