Autor/Autorin
The acquittal of the Nazi judiciary is not, as is often claimed, the result of a failure of the Federal German judiciary; it was deliberately brought about, based essentially on a judgement of the Federal Court of Justice of 7 December 1956, which stated that the conviction of a judge for obstruction of justice under § 336 required „certain, not merely conditional intent“. This was difficult to prove without a corresponding confession. In order to remain unpunished, the henchmen of the unjust state only had to affirm that they had always complied with the applicable laws. The BGH had nothing to criticise. On 25 May 1956, it ruled that the National Socialist state could not simply be denied the right to have enacted strict laws to protect the state.
When, after the fall of the GDR, its judges were to be called to account, the Federal German judiciary was trapped. According to current case law, they too had to be acquitted. Federal Justice Minister Klaus Kinkel (FDP) wanted to delegitimise the GDR. In the breakneck U-turn manoeuvre that the Federal German judiciary then carried out, not only did everything that had previously been regarded as a guideline in matters of legal bending go overboard, but also a number of principles of the rule of law, such as the principle of equality or the prohibition of retroactive punishment under Article 103 of the Basic Law. It was of no use to the judges of the GDR if they declared that they had ruled in accordance with the applicable laws. For the Federal Court of Justice, the „knowledge of the unlawful decision“ was „regularly not in question“.
This double standard is at the centre of Conrad Taler’s book of the same name, which has now been published in its second edition by PapyRossa Verlag. The author repeatedly allows the Federal Court of Justice itself to have its say. Among other things, the reader learns that, in the opinion of Germany’s highest criminal court, during the Cold War period „on both sides“, i.e. in the GDR and in the Federal Republic, „political justice was practised with an intensity that is not always comprehensible from today’s perspective“. (AZ 5 StR 747/94).
In the opinion of the Federal Court of Justice, a large number of former Nazi judges should have been called to account. The fact that this had not happened was a „serious failure of the German criminal justice system.“ In the case of the former GDR judge Hans Reinwarth, who was sentenced to three years and nine months imprisonment, the Federal Court of Justice self-critically stated that it was not far-fetched to assume that a „fundamentally changed jurisdiction, without which his conviction would not have been possible, could hardly be conveyed to him as just“.
All in all, a fascinating read. It is recommended to all those who ask about the role of the judiciary or the reasons for the current voting behaviour of former GDR citizens. The well-known defence lawyer in political criminal cases Heinrich Hannover writes in his foreword that anyone who reads the book with the willingness to take note of judicial injustice even where „everything is supposedly in accordance with the rule of law“ will have some doubts as to „whether the claim and reality of our constitutional state actually correspond.“