I. Amnesty – what is it ?
1. Term and delimitation
The word "amnesty is a loanword from the Greek and means "forgetting" or forgiveness" . In the German-speaking world, amnesty is equated with immunity from punishment, although this does not exactly capture the essence of the meaning, because the convicted person also gains immunity from punishment through a pardon. Thus, exemption from punishment represents the generic term under which both pardon and amnesty cover their own areas, which are to be delineated more precisely below.
A) Amnesty
Amnesty in criminal law means a general legal decision, applicable to an unspecified number of cases and related to specific offenses or crimes, which gives the affected persons immunity from punishment or the reduction of punishment . In other words, the legal community refrains from enforcing its claim to punishment through indictment, judgment or execution, or from attaching legal disadvantages to past behavior at all" . This intervention in the regular course of the administration of justice can occur in different temporal stages. In this way, it is already possible (as the earliest possible time for an amnesty) to refrain from prosecuting a crime. Or the enforcement of imposed penalties can be waived in whole or in part at a later date. I would consider these two possibilities as "real" Amnesties designate.
B) Abolition
Temporally in between is the suppression of already pending, but not yet completed proceedings. This waiver of further investigation or processing of a pending criminal case is called special abolition or single abolition . In a large number of cases, therefore, general abolition is a better expression . In criminal amnesty laws, abolition is often associated with amnesty with respect to the same criminal offenses.
C) Pardon
The pardon also leads in the result to exemption from punishment or reduction of punishment. However, it is highly personal, d.H. Limited to an individual case, while the amnesty concerns an unknown number. As a criterion of demarcation from amnesty serves here the unstated multiplicity of cases". Moreover, pardon presupposes that the offender has been convicted by a final court decision . This is not mandatory in the case of amnesty. With the abolition not at all necessary. An illustrative example of a pardon can be found in Wesel, who recommended mitigating the death penalty to "only" Branding for the famous artist Veit Stoß anno 1503 in Nuremberg reproduces. Veit Stoß had committed a forgery of documents.
2. Types of amnesties
The classification resp. Classification of amnesties becomes particularly clear from the example. Thereby it is possible that one or the other amnesty was put into several drawers" can be classified.
A) Amnesties constituting and perpetuating the law
Detached from a penal dimension, a law-constituting amnesty can bring a state in ruins from anarchy to a normal state in which the validity of the law is assured" help. As an example from history, the Peace of Westphalia of 1648 can be used, which ended the 30-year war and created the basis for a new beginning through a mutual forgetting and forgiving of mutually committed atrocities. Marxen argues that the containment of the defeated party's desire for revenge is what explains the emergence of the state's monopoly on the use of force . However, the majority of amnesties in Europe are of a right-perpetuating nature, d.H. They are anxious to let a ruling order basically exist and to apply corrections only in partial areas. An exceptional situation in need of reform, which the political leadership wants to change, is also present here, but it is not of fundamental state importance. Proclaimed amnesty to show the people his magnanimity. Thus serving to increase the popularity of the ruling house . In the case of the jubilant amnesties, a certain irrational element of (divine) grace is still evident, which is rooted in the monarchy's self-image (God's grace). From 1871 to 1914, the King of Prussia issued three Jubilee Amnesties (1888: accession to power of Emperor Frederick III.; 1896: 25. Anniversary of the founding of the empire; 1906: birth of the king's grandson). The punishment limit was relatively low for custodial sentences of up to 6 weeks. Higher prison sentences were issued only in cases of resistance to state authority, violation of public order, insult including insult to majesty . Even nowadays in France "Jubelamnestien" are on the occasion of a change of government (cf. In Austria, this is customary for commemorative days or national anniversaries. In Germany, jubilation alone is not considered a reason for amnesty, either legally or politically, as was shown during reunification in1990 (cf. See III 2 d). In the Federal Republic, the Federal Government has been able to resist the temptation to buy itself a more than dubious popularity by frequently enacting amnesties" . With the end of absolutism in Europe, the legitimacy of the power. The state power shifted to the people. This was accompanied by a more rational approach to amnesties. The idea of purpose pushed to the fore and the waiver of punishment by way of amnesty has become a purposefully used, purposeful instrument of penal legislative policy" . For example, during the 1. World War II to mobilize as many forces as possible enacted a series of amnesties. Other examples of special-purpose amnesties linked to specific state policy goals : Securing the territory of the state (Saarland amnesty of 28.2.1935; Rhineland Amnesty of 23.4.1936; Greater Germany Amnesty of 30.4.1938; Sudeten amnesty of 7.6.1939) increase of the state finances (tax amnesty of 1913 by § 68 of the military contribution law of 3.7.1913, Law for the Reduction of Unemployment of 1.6.1933 or type. 17 of the 1990 Tax Reform Act of 25.7.1988) Amnesty of political dissidents (Often at the time of the Weimar Republic) Relief of the penal system (secondary objective also to improve government finances)
Supporting criminal justice reforms (Impunity Acts related to criminal justice reforms) Reintegrating social groups (Impunity Act 1970 – youth and student protest) Building the state's monopoly on violence and punishment after general emergency (postwar amnesties of 1949 and 1954) Facilitating mobilization Promoting friendly relations under international law (peace treaties of 1918 with Ukraine, Russia, and Finland)
The category of "purpose amnesty" makes it clear that the reasons for an amnesty are as varied as political or social necessity or the reason of state allows.
D) Annexamnesty
An annexamnesty follows an impunity law in connection with large-scale reform projects or is even integrated into this body of law. The aim is to strengthen the effectiveness of the reform.
E) Appeal amnesty
An appeal amnesty promises impunity in case the perpetrator turns himself in to the authorities after the crime and/or gives previously unknown information. A historical example of this is the "Fuehrer's decree" to protect the arms industry from the 21.3.1942. By type. 1 threatens penal servitude or even the death penalty for anyone who deliberately makes false statements about the need or stock of labor, and about the need or stock of raw materials and goods essential to the armaments economy. Art. 2 then immediately promises immunity from prosecution if the false statements are corrected within three months . Section 10 of the Impunity Act of 1949 and Section 7 of the Impunity Act of 1954 were also appealing in nature . In each case, it was a matter of correcting incorrect information of personal status. In terms of content, Section 371 of the German Tax Code (AO 1977) is also comparable to an appeal amnesty. Here, too, those who report their tax evasion/avoidance themselves go unpunished. While the person is individual, the group of affected persons is not known and also not readily determinable, so the term appeal amnesty is justified.
F) final amnesty
A final amnesty aims to adapt the administration of criminal justice to a changed reality when exceptional living conditions have affected the whole nation or large sections of it and influenced people's behavior in such a way that they committed crimes they would not otherwise have committed" . As examples are to be mentioned the Penalty Exemption Acts of 1949 and 1954, which amnestied offenses if they were committed out of personal need and without reprehensible sentiments. As a justification here may be the motto "Necessity knows no commandment" sufficient.
G) Pacification amnesty
A pacification amnesty seeks to maintain or restore domestic peace disturbed by political antagonisms and the form in which they are carried out" .
H) Legal Correction Amnesty
A legal correction amnesty aims to flank a mitigation of the substantive criminal law by expanding its scope" . This is similar in content to annexation amnesty or law-perpetuating amnesty, but focuses on legal adjustment following a change in law .
I) Federal/state amnesty
According to the federal division of powers between the federal government and the states, both federal and state amnesties are conceivable . The amnesty because of the Saar question in Saarland (1957) can serve as an example of a state amnesty .
J) Special/general amnesty
If only a certain offence or offender complex is amnestied, one speaks of a special amnesty (z.B. Military Amnesties). This concept is contrasted with the general amnesty, when all crimes (usually up to a certain severity) are included .
K) Full/partial amnesty
Full or partial amnesties describe the scope of the clemency. A full amnesty applies to all offenses without regard to the nature or amount of the penalty", While the partial amnesty refers to the remission of punishment in the presence of certain conditions, up to a certain level of punishment or only for certain offenses." Refers .
L) Political amnesty
In the troubled final phase of the Weimar Republic and especially in the Third Reich, political amnesty established itself as another type of amnesty. With it, partisans convicted of politically motivated crimes were set free again. It is unimaginable today that even murderers could obtain impunity .
M) Open and covert amnesty
This pair of terms is based on the fact that even by continuous non-prosecution of an offense and the subsequent statute of limitations or by decision or. Judgment of the courts likewise the effects of an amnesty can occur. This is then referred to as covert or even cold" Amnesty referred to . The reasons or causes of this shift in the law-making by judges are multifaceted. They range from investigative workloads to defendants' inability to stand trial to a failure to accept political responsibility for an open, meaning legal, amnesty . The fact that five judges of the Federal Constitutional Court granted a de facto "amnesty" to can decide (cf. Spy decision" ), should give those politically responsible food for thought. After all, the criminal reappraisal of the past cannot be left to the judiciary alone. Refusal to provide clear political directions through an amnesty law only leads to a failed amnesty" by means of the setting of judge right, which should be actually limited to smaller peripheral areas. Concealed amnesty should therefore be rejected not only because of the significant interference with the principle of separation of powers.
(n) Christmas amnesty."
The Christmas Amnesty", which gives the prisoner an early release before the Christmas holidays, is a pardon in terms of its significance, since it is related to individual cases. However, because of the large number, the term "Christmas amnesty" has become more popular naturalized.
II. Limits
1. Formal limits
A) Functioning state system
The basic prerequisite for justifying the enactment of an amnesty at all must be the existence of a functioning state system. For as long as a society has not overcome anarchy and no state authority has formed a judicial sovereignty, there is no thought of regulating the lawless state that preceded it. This is especially dependent on the victory of one of the parties involved in an armed civil war . Only when the state has consolidated can thoughts of reconciliation and forgiveness take hold.
B) Separation of powers
Closely related to a) is the need for a functioning separation of powers. In any case, amnesty should be rejected if there is no separation of the legislative and executive powers. For example, emergency decrees under Article 48(2) of the Weimar Reichsverfassung (WRV) could circumvent a legislative decision, including one for an amnesty law. The emergency decree of 21.3.1933 granted z.B.An amnesty for crimes committed in connection with the sog. National survey have been committed" . This also covered capital crimes, such as most femicides. Therefore, a further formal limit should result from the separation of powers, which makes an amnesty transparent and comprehensible to society.
C) legal form
Case law and most of the literature agree that an amnesty in criminal law can only meet formal limits if it is in the form of a law. A minority opinion opposes these efforts at legalization" with the argument that an amnesty to overcome a "situation of crisis and exception" would require should not be subject to judicial review if its "political signals" are to be wants to meet the aforementioned conflict situations. This minority opinion must be rejected, since it is not clear how else an exceptional situation should be overcome. The path via pardon – and Breitbach himself admits this – leads to an exclusion of the public from the formation of will and can at best lead to "collective amnesia" effect. However, a forgetting must be linked to a forgiving in order to enable an effective processing of the conflict material. This should be done through a public legislative process accompanied by a public debate.
D) Legislative competence
Once the necessity of a law has been agreed upon (see above), the next question is who is allowed to enact it. The Basic Law is completely silent on the competence of the federal government in striking contrast to the Weimar Constitution" . However, it is now recognized that an amnesty law falls within the scope of concurrent legislation under Article 74(1) no. 1 GG i.V.M. Article 72 paragraph 2 GG can be classified. Thus, the question of whether an amnesty law is now subject to criminal law" requires , or under penal execution" respectively. Judicial proceedings" is to be subsumed, will not be discussed further. The principle of equality (Article 3(1) GG) and the principle of federal loyalty in particular speak against a state competence . The Criminal Code and also the Fiscal Code for tax offenses are laws with a uniform federal scope and application, so that the states have no legislative competence in this area.
2. Limits on content
A) Prohibition of advance effect
Nulla poena sine lege. From this principle (also called prohibition of retroactivity) no punishment takes place, if at the time of the act a law did not forbid this act. From this, for the negative penal law" , the amnesty, a prohibition of advance effect would be derived in mirror image . Furthermore, crimes committed after the law was passed would remain unpunished, which would create an incentive to commit crimes. In addition, an anticipatory amnesty would interfere with judicial independence (Article 97 GG), because the judge can no longer be independent and subject only to the law" be, if the penal law contrasts with the impunity law. An amnesty law can therefore only concern crimes committed in a past, closed period of time, and should specify a cut-off date for better handling .
B) Prohibition of individual amnesty
An individual amnesty would, as a measure law, exempt a certain circumstance or a certain group of persons from punishment. Which reasons could speak against it, if the political will and the appropriate majorities in the Bundestag are present ? Article 19(1) of the Basic Law prohibits case-by-case regulation of statutory interventions in the fundamental rights of citizens. The only difference is that an amnesty does not negatively affect the person concerned, so that this objection does not apply . Even an argument based on the general prohibition of arbitrariness enshrined in Article 3 (1) of the German Basic Law (GG) does not lead any further here, since – assuming political will and formulation skills – reasons can always be found for special treatment of individual cases . Only the special relationship of the criminal law to the judicial power", the safeguarding of the jurisdiction of judges (Article 92 GG, Article 97(1) GG, Article 101(1) sentence 2 GG) and the concomitant procedural enforcement of substantive criminal law in individual cases." Can justify the prohibition of individual amnesties. The extent of legislative leeway, even in the case of so-called "camouflaged individual amnesties" shows the case of Platow .
C) Prohibition of self-favoritism
Marxen derives this prohibition from the criminal law principle of legality, according to which a law should be formal, general and reasonable. The latter is the basis that supports this ban and should prevent members of parliament from allowing their own or common special interests to be incorporated into laws.The indemnity and immunity (Article 46(1) and (2) of the Basic Law) of the deputies can also be used as a justification. Impunity is limited to parliamentary activity and, for the rest, is to be interpreted restrictively . Further rights are obviously not intended by the constitutional legislator. Furthermore, this limit of an amnesty law can also be explained by the mixing of legislative and judicial power it contains. The legislator must not be a judge in his own cause, and should still show some altruism.
D) Limits based on the principle of equality (Article 3(1) of the Basic Law)
The probably weakest border can be drawn with the arbitrariness prohibition developed from the equality principle of the article 3 paragraph 1 GG. For according to the Federal Constitutional Court, the legislature only acts arbitrarily if it is obviously not guided by the idea of justice in its deliberations and no reasonable considerations can be found that result from the nature of the matter or are otherwise plausible . It is evident that an amnesty favors one group while it must necessarily disadvantage comparison groups . Without this premise, an amnesty would have no meaning if one wants to make a caesura. The justification for the de facto unequal treatment alone requires the most precise formulation, because the legislator alone decides on the necessity and appropriateness of it . The latter is thus called upon to make some effort with the justification and must also not disregard the sense of injustice of the citizens, if his legislative initiatives are to meet the political zeitgeist and not suffer shipwreck (cf. Later III. 2).
E) Limits due to state penal obligations
With the exception of Article 26 (1) of the German Basic Law (disturbance of the peaceful coexistence of the community of nations, preparation of a war of aggression), as a rule there is no constitutional penalization requirement . The state is supposed to supplement violations of legal rights and violations of "welfare purposes" only punish where it is unavoidable for an orderly coexistence" . This presupposes that there are important legal assets, and those that can withstand even minor transgressions" Need. From this, it can also be concluded that there is a duty to punish for particularly high-ranking legal interests (such as life). In particular, that the state also fulfills its duty , as well as the Federal Constitutional Court has assumed a penal obligation to protect the unborn life . However, this is not understood to mean the duty of the state to actually bring certain acts to punishment by all means, i.E., by means of criminal legislation, prosecution, execution of sentences, and the penal system" . But there remain possibilities of design, which concern both the penal law and a law of exemption from punishment. At the same time, this means that for certain crimes or offenders, amnesty can be ruled out from the outset.
Which crimes are therefore not amnestiefähig ? As a criterion for this, for example, the statute of limitations given by the legislator can be used. This would then apply to genocide (§ 220 a StGB), to life sentences and and to preventive detention (§ 79 paragraph 2 and paragraph 4 sentence 1 StGB). However, the statutes of limitations cannot be used alone and absolutely as an argument, since they are subject to legislative change, if politically intended. In addition, there has to be an assessment of the particularity of the action situation in each case", in which the perpetrator was at the time of committing the crime . Furthermore, because of obligations under international law, war crimes and crimes against humanity are not amnesties. This is also, or precisely, because the victims of the Third Reich were not only Germans, but in the majority non-Germans, and therefore the international community of states claims a say in the matter .
Are there offenders unworthy of amnesty? Because of its general character, an amnesty covers an unmanageable group of offenders, so that in principle an examination of individual characteristics or qualifications would be ruled out . But if one recognizes crimes unworthy of amnesty, a differentiation must also be possible with regard to the amnesty-worthiness of certain offenders – at least according to the dangerousness of the groups of offenders or for recidivists . Thus contained z.B. § Section 9 of the 1954 Impunity Act contains an extensive list of exceptions for criminal offenses and (attitude) characteristics that preclude amnesty . In the 1988 septenary amnesty in France, certain crimes were also exempted (see IV. 1).
F) Limits due to the rule of law
In contrast to the borders a) to e), which are mainly based on thoughts of Klaus Marxen, the author wants to summarize open aspects of an amnesty to another border here. The principle of the rule of law is derived from Article 20 GG, it is not explicitly included in it. Nevertheless, it belongs to the elementary constitutional principles and the basic decisions of the Basic Law" . The rule of law should also reflect the continuity of the legal system. Amnesty interrupts this continuity, frequent amnesties undermine the confidence of citizens in the rule of law and ultimately also in the state. For this reason, the inflationary use of amnesty as a political design tool is to be rejected. Precisely general preventive reasons, such as the phrase "law must remain law" (Psalm 94, 15) clarifies, play thereby a role. If a burglary or a savings bank robbery were once passed over with silence by the legal community, every future burglar or robber could claim in his favor that he, too, must have at least one act of this kind for nothing; thus the legal system would be widely suspended" . Applied to frequent or regular amnesties, this would mean that a criminal can factor a possible amnesty into his or her calculations when planning and carrying out his or her crime . The Weimar Republic was not exactly stabilized as a state by 18 amnesties in twelve years, and the violent and bloody struggle for power was virtually encouraged. But predictable amnesty also poses the same dangers to the rule of law. The legislative process is largely public. Is critically accompanied by the press as the fourth estate. If the discussion and the legislative process takes too long, this interim period can tempt one to commit a crime quickly and then to wait for impunity.
G) Criminal-political borders
The criminal policy limits of an amnesty are manifested by a not inconsiderable recidivism rate of many ex-offenders . This was the case, for example, with the amnesty on 38. Anniversary of the founding of the GDR from 17.7.1987 with ca. 30 % fortunately below expectations due to the previous amnesties" . In addition, this quota includes only the re-established delinquency. Reasons for this may include insufficient resocialization or the timing of amnesty. The latter may be the case with an amnesty in winter ("Christmas amnesty"), when amnestied persons without family are "released" into poorly furnished, uncomfortable rooms (often shelters for the homeless in social hotspots), play a special role.
III. Amnesties in the Federal Republic of Germany and the German Democratic Republic
1. Impunity Acts and similar provisions with the status of law
A) In the Federal Republic, the federal legislature has so far enacted
Four Penal Freedom Acts (StFG) Penal Freedom Act of 31.12.1949 (BGBl. 1950, S. 37) Law on the exemption from punishment of 17.7.1954 (BGBl. I, S. 203) Act on Exemption from Punishment of 9.7.1968 (BGBl. I, S. 773) Criminal Freedom Act of 20.5.1970 (BGBl. I, S. 509), four amnesty provisions in the context of criminal law reforms (Annex or. Legal correction amnesties) Art. 97 of 1. Criminal Law Reform Act of 25.6.1969 (BGBl. I, PP. 645, 679) Art. 7 and 8 of 4. Criminal Law Reform Act of 23.11.1973 (BGBl. I, S. 1725, 1733) Art. 313 of the EC Criminal Code of 2.3.1974 (BGBl. I, S. 469) Art. 9 and 10 of the 5. Criminal Law Reform Act of 18.6.1974 (BGBl. I, PP. 1297, 1299) i.V.M. Type. 4 of the 15. Criminal Law Amendment Act of 18.5.1976 (BGBl. I, S. 1213) and an amnesty for tax offenses Art. 17 of the Tax Reform Act of 1990 dated 25.7.1988 (BGBl. I, S. 1093, 1128).
Aa) The 1949 Impunity Act (StFG) was enacted to rectify the exceptional circumstances after the war and during the subsequent period of emergency . In terms of criminal law, it drew a line under the pre-15. September 1949, only 241 illegal immigrants took advantage of the opportunity offered. Amnesties were granted, for example, for slander and false accusation (§ 
committed during the collapse, concealment of personal status (§ 10), and acts on a political basis committed after the 8. May 1945 and are attributable to the special political circumstances of the last few years." (§ 9). The last provision, which even applied to manslaughter, put acts of political persecution against their "Nazi tormentors" exempt from punishment. However, crimes that were dangerous to the public or were committed out of cruelty, dishonorable intentions or for profit were exempt from punishment. § Section 10 of the StFG 1949 was an appeal amnesty, as z.B. The hiding under a false name for political reasons was not punished only if the person concerned corrected the information within three months . A glance at the statistics shows just how little this appeal had any effect: by the cutoff date of 31.March 1950, only 241 illegals made use of the opportunity offered. The remainder (according to estimates by the Federal Ministry of Justice approx. 80,000), and among them certainly quite a few Nazi criminals, drew the retention of false identity to internment and denazification" before. Thus, z.B. Only in 1995 the former Aachen university rector Hans Schwerte alias Schneider was unmasked as an SS functionary .
(bb) The StFG 1954 follows on from the StFG 1949 described above and continues the rectification of "exceptional circumstances created by war and post-war events" (§ 1). This further StFG had become necessary because many people still lacked a solid basis for life, economic hardship continued and occupation-law barriers had only ceased to exist in 1949 . The effective date was 1.12.1953. Section 8 also contains the disputed Platow complex, which was the subject of a constitutional complaint (BVerfGE 10, 234).
Cc) In the course of the Staatsschutz-Strafrecht-Novelle (Eighth Criminal Law Amendment Act of 14.6.1968, BGBl. I, S. 633) a legal correction amnesty was issued with the StFG 1968. This had become necessary after various provisions were repealed or replaced .
Dd) The StFG 1970 was also a legal correction amnesty, in conjunction with the Third Criminal Law Reform Act (BGBl. I, S. 505) for the regulations changed therein (z.B. Incitement to disobedience, coercion of officials, rioting, breach of the peace and criminal offenses under the right of assembly ). At the same time, it was a pacification amnesty, since it amnestied crimes related to the student and youth protests. The assessment of the objective ranges from the integration of the new left from the student revolt" in society to the point of cleaning up the criminal record of young academics . Whether pacification has succeeded, or whether liberalization has made Red Army Faction terrorism possible or. The extent to which the amnesty was increased must remain undiscussed at this point. Even assuming that, unlike the classical amnesty, this amnesty was not preceded by an internal or external emergency" , it was nevertheless necessary for the re-establishment of a social consensus. Due to the discrepancy between the high minimum penalty rules and the usually low criminal wrongfulness, there was uncertainty in the application of the law, which had to be eliminated .
Ee) Amnesty provisions of the criminal law reforms These annex or. Legal amnesties or legal correction amnesties bring the basic idea of Section 2(3) of the Criminal Code, according to which the most lenient law is to be applied, once again more clearly into consciousness .
Ff) Amnesty for tax offenders 1988 This highly controversial annex amnesty made it possible for tax debtors who had not paid tax on capital assets and/or interest, or had not paid tax on them in full, to return to tax honesty . However, the desire to tap unknown sources of tax revenue in order to increase the state's finances in the future was not fulfilled, since only a small number of subsequent declarations exempting from punishment were received by the tax authorities .
B) In the German Democratic Republic, the Council of State last exercised the right of amnesty and pardon (Article 74(2) of the Constitution). Accordingly, the amnesty – like the criminal law – was deliberately used as a political instrument of class struggle . This is particularly evident from the frequency and occasions ("Jubelamnestien"). Frequent amnesties are also seen as an indication of profound control problems . The most significant amnesties and pardons are: Law on the granting of immunity from punishment of 11.11.1949 (GBl. I, S. 60) Decision of the State Council on granting exemption from punishment." From the 1.10.1960 (GBl. I, S. 533) Amnesty Decree" of the State Council of 3.10.1964 (GBl. I, S. 135) – 15. Anniversary of the founding of the GDR – amnesty on the occasion of 23. The fact that the German Democratic Republic was founded on the 50th anniversary of its founding (resolution of the Council of State of 6.10.1972, not announced in the law gazette, but in the newspaper Neues Deutschland on 7.10.1972 announced) Amnesty decree of the Council of State from 24.9.1979 (GBl. I, P. 281) – 30. Amnesties for GDR refugees on the 50th anniversary of the GDR – Law on the Regulation of Citizenship Issues of 16.10.1972 (GBl. I, S. 265) and Ordinance on Citizenship Issues in the GDR of 21.6.1982 (GBl. I, S. 418) Amnesty decision of the State Council of 17.7.1987 (GBl. I, S. 191) – 38. Anniversary of the GDR Krenz Amnesty" of 27.10.1989 (Journal of Laws. I, S. 237) Gerlach amnesty" from 6.12.1989 (GBl. I, S. 266)
The continuing effect of the amnesties enacted in the GDR for the period after 1990, caused a great deal of concern among the so-called. Wall shooter trials partly for legal uncertainty. Finally, the BGH held that prosecution of an offense is not barred by the amnesties enacted in the GDR . The amnesty decision of 6.12.1989 shall, however, continue to apply in the accession area as state law .
2. Important planned or rejected amnesties
A) Squatter amnesty (1981)
Starting in Berlin, the amnesty of crimes committed in the context of squats (trespassing, breach of the peace, resistance to law enforcement officers, bodily harm, property damage, etc.) was introduced in 1981,…) thought. However, there was no draft legislation at the federal level, since for the offenses in the lower range of punishability, there was a lack of legal certainty … The possibilities of discontinuing proceedings under the Code of Criminal Procedure were sufficient" . Moreover, the housing shortage could not be resolved from one day to the next, and certainly not by legislative decree, which stood in the way of pacifying the situation.
B) Party donation amnesty (1981/1984)
No amnesty proposal was discussed so long and controversially in public and in the press as the one for (tax) crimes committed in the course of party donations. The point of departure was the "civil associations" established by donations to, which were in reality fundraising centers for certain parties" , circumvented regulations of corporate, income and gift tax law, according to which direct donations to political parties are deductible only up to a certain amount. The drafts provided z.B. That exemption from punishment could be obtained by self-disclosure even if the tax evasion was already known to the authorities." . This had its background in the partly long-standing knowledge and toleration on the part of the financial authorities and the associated co-responsibility of the state for the situation . This was at least partially resolved by the reorganization of party financing at the end of 1983. The desired conclusion could not be drawn, however, because the cleaned-up situation is no less confused and distant from the citizen than the previous one, and the addition of the amnesty, for its part, no longer saves anything, but "falls" with the reform .
C) Blockade Amnesty (1988)
In demonstrations against nuclear weapons or poison gas storage facilities, military installations and facilities were "sit-ins" blocks. According to the established case law of the Federal Court of Justice, this obstruction constituted coercion (§ 240 StGB) and led to the conviction of the sit-in strikers. The constitutional concerns raised (violation of the requirement of certainty under Art. 103 para. 2 GG) were justified (BVerfG JZ 1995, S. 778). The creation of a better "coercion paragraph" and a clearing up of the blurred situation was indicated . The various drafts (BT-Drs. 11/1472 and BR-Drs. 181/88) were not pursued further and are now considered outdated, although a clear differentiation of the concept of violence would be appropriate.
D) Reunification Amnesty (1990)
The unification of the two German states, as an expression of general joy, would have been the occasion for a "jubilant amnesty" commanded. In addition, unification-related and criminal law problems arose that could have been solved with an amnesty in the course of the unification treaty . At first, however, only an amnesty for East German spies was considered . However, the sensitivities of the East German population regarding decades of spying by the State Security Service (Stasi) stood in the way of this amnesty. Forgetting and forgiving was not yet possible because the Stasi archives had only been open for a short time . Furthermore, the political handling of SED government criminality caused some difficulties. The subsequent prosecution of system-conforming crimes, even if they were committed in an unjust state, violates the rule of law's prohibition on retroactivity and must therefore be considered "victor's justice" by the losing party designate . An isolated consideration of the act without the corresponding background of the respective legal system cannot lead to a legitimate judgment . This is especially true when the perpetrators are not amenable to either general or special prevention . Even five years after reunification, the political path for an amnesty had not yet been paved, despite considerable public debate . A partial amnesty or a limited impunity law would have been viable means to exclude a covert amnesty.
E) Amnesty for the Red Army Faction (RAF)
Recently, in the wake of the announced dissolution of the Red Army Faction (RAF), an amnesty for convicted and incarcerated terrorists has been demanded . The admitted failure of the goals and the extensive renunciation of the convicts from the RAF make an amnesty seem possible in principle, if a "purification" is to be achieved or. Assumes a genuine need for reintegration into society. However, this is contradicted by a lack of compelling necessity in terms of state and sociopolitical policy, because criminal acts remain criminal acts even if the perpetrator ruefully distances himself from them. Furthermore, the relatives of the victims are certainly not yet ready for forgiveness and reconciliation, which must form the basis for a functioning amnesty. Moreover, not all crimes have been solved, so that an amnesty could only be granted in connection with an abolition. However, such a far-reaching impunity law could send the wrong signals to future enemies of the state (including those from the right-wing political spectrum) and encourage undesirable imitation. An amnesty is therefore not a viable option.
V. Amnesty practice in other states
1. France
After the Girondists briefly abolished the right to clemency in 1789 because it contradicted the strictly rational principles of the Revolution, it has been enshrined in (monarchical and republican) constitutions since 1802 . In France, the legislature issues an amnesty every two years on average, with both final, pacification, legal correction and jubilant amnesties are the order of the day . The latter in the form of the so-called. Septenate amnesties are granted by Parliament at the beginning of the term of the President of the Republic. They are intended to pacify political life after the election campaign and affect in particular the lower range of penalties . A desirable side effect is the alleviation of the overcrowding problem in French penal institutions a. The list of exceptions to the septenancy amnesty in 1988 (Art. 29) included racial discrimination, desecration of graves, terrorist crimes, traffic offenses under the influence of alcohol, glorification of violence and war in the press, customs and tax offenses, and air and water pollution. In this context, it becomes clear that the legislature is very much taking into account state penal interests and the sense of justice of its citizens, if one considers z.B. To the considerable environmental destruction caused by the tanker accident of the Amoco Cadiz off the coast of Brittany. But the negative effects of these frequent amnesties should also be pointed out: In anticipation of an amnesty, there was a "savagery of manners in the streets" and a flood of shameless parking violators and reckless speeders" The election campaign, which began months before the elections. In addition, the state coffers have been relieved by the remission of police fines estimated to be in the order of about. FF charged .
2. Austria
In Austria, according to Art. 93 Federal Constitutional Law (B-VG) Amnesties may be decreed by simple federal law . The reasons for a general pardon are general occasions, usually anniversaries of the state or economically significant circumstances . The regularity of this practice (every ten years after 1945 because of independence and other commemorative days) leads Quaritsch to say that "amnesties are particularly inventive in this country" . Attempts are being made to mitigate the disadvantages of foreseeable amnesties by ruling out abolition, d.H. Impunity does not apply to cases in which a verdict has not yet been reached when the amnesty takes effect." . Further, the frequent amnesties to petty offenses. Low penalty levels limited .
3. Switzerland
Offenses under federal law are punishable under Art. 85 number 7 Federal Constitution (BV) amnestied by the federal councils . It should be noted that the power of amnesty in Switzerland, even after the entry into force of the Penal Code of 1942, is linked to legislative sovereignty, d.H. The Federal Assembly takes action in the case of criminal offences under federal law and the cantonal authorities if cantonal criminal law is affected . Switzerland is extremely reluctant to grant amnesty, not least because a nationwide amnesty has to clear the additional hurdle of a referendum, which is not always successful . This restraint is commented on favorably throughout the literature because of the political reasons behind an amnesty . Tax amnesties occurred in 1945 and 1968 . In 1964 one was rejected .
4. Italy
Italy is the European country with probably the most frequent amnesties (about three dozen since 1944). It is noteworthy that even sentences with a long period of imprisonment are included. The frequency and extension of the granted immunity from punishment reduces the risk of the crime and takes away the deterrent effect of the penal laws". This amnesty practice must therefore be assessed negatively overall, but it has its reasons in the outdated substantive criminal law and the desolate state of the administration of criminal justice .
5. United Kingdom
Great Britain knows the right of mercy and pardon as a prerogative of the crown, but not the general remission of punishment (amnesty) . The reason for not having an amnesty is probably that there is no penal code of the continental European type With abstract offenses there are. The different legal tradition of case law as an abundance of individual case decisions based on precedents prohibits intervention in the actions of judges in a general way. If the criminal judgment is based in each case on a decision in an individual case, it can also only be overturned as an individual case. Then this must take place however by definition necessarily by a pardon. At the moment, in the course of the peace negotiations in Northern Ireland, there is controversy about a far-reaching pardon for convicted IRA fighters. It seems that forgetting and forgiving is not yet possible. A pacification of the situation. But this stands in the way of an amnesty.
V. Summary and opinion
In the present work so far only indirectly the possibilities of an amnesty were dealt with. This is due to the rather narrow link with the limits of an amnesty. The interplay between the fundamentally rigid criminal laws and social changes sometimes makes it necessary for the legislature to intervene in the powers of the criminal justice system. From this it follows that the possibilities of an amnesty are in principle boundless and – in my estimation – depend only on a corresponding political majority of the parliaments. Provided the will and the majority in the parliaments is present, everything and everyone can be amnestied. The dangers involved (loss of prestige of politicians, unwillingness to reconcile, lack of stability of the state, habituation effects) then partly condition the limits. Further limits result from constitutional limits (form of law, legislative competence, prohibition of arbitrariness, rule of law), pragmatic considerations (worthiness of amnesty, tabula rasa) or simply common sense (prohibition of advance effect, prohibition of self-benefit and individual amnesty).
An amnesty can be necessary for the pacification of a social change. An inflationary use of amnesty as a political tool, on the other hand, must be rejected. Even if other countries (France, Austria, Italy) make frequent use of amnesties, they will still not be described as unstable, or even want to deny them the rule of law character. In the Federal Republic of Germany, probably because of the experience of the Weimar Republic and the III. Rich developed a general reluctance to give generous or frequent amnesties. This timidity is certainly justified, although relentless prosecution of offenders until they have served their full sentences must be questioned critically. After all, it is often not possible to prosecute or solve the crime, so that "system injustices" arise here can form. In any case, an amnesty should not be misused to conceal law enforcement or prosecution deficits.
A final thought is on the concealed or "cold" Amnesty. I think it is unwise for policymakers – for whatever reason – to shirk their responsibility to design and leave this to case law. This is not only questionable for reasons of separation of powers. Political management acts should, in my opinion, provide direction. At the same time, perhaps a less than successful amnesty does less harm than an omitted one.