A rehabilitation of men who have been prosecuted and sentenced in the Federal Republic of Germany in accordance with the anti-gay Section 175 is compatible with the Basic Law.
On grounds of its duty to protect, the legislator has even been constitutionally mandated to rehabilitate the victims. This is the key result of a legal opinion which was commissioned by the Federal Anti-Discrimination Agency (FADA) and drawn up by public law specialist Professor Dr Martin Burgi of the LMU Munich.
„The legal opinion explicitly highlights for the first time that the legislator is not only able to rehabilitate the victims of law enforcement, but is even obliged to do so“, said Christine Lüders, Head of the Federal Anti-Discrimination Agency, when she presented the legal opinion in Berlin.
"More than 50,000 victims have been prosecuted and convicted and were thus hurt in the very heart of their human dignity. They have to endure that the convictions pronounced against them, however, have never been overturned. The legislator must no longer accept this injustice." „There is a clear constitutional legitimation for governmental rehabilitation measures“, Professor Dr Burgi explained.
„Their point of reference is the permanent stain of a criminal record existing on the basis of a penal provision, i.e. Section 175, which is incompatible with higher-ranking law.“ In this context, the state based on the rule of law could prove its ability of self-correction.
The legal opinion drawn up by Professor Dr Burgi recommends the collective rehabilitation of the persons affected by means of a repeal Act. In view of the serious offence against a fundamental right, this would be constitionally legitimized and could correct the injustice done in the past by a single act. Moreover, the victims would be spared to be confronted once again with the humiliating invasion of their privacy in a case-by-case review. On the basis of the same idea, the legal opinion also advocates a collective compensation in the form of a fund, which could be administrated, e.g., by the Federal Foundation Magnus Hirschfeld and could be used for education projects, remembrance events and training programmes.
Until 1994, homosexual acts among men have been punishable under specific pre-conditions. The recently founded Federal Republic of Germany had adopted Section 175 from the German Criminal Code, which had been toughened by the National Socialists in 1935. Until 1969, when Section 175 was softened, the number of men who had been sentenced to imprisonment of several years was estimated to be around 50,000. After that it was approximately 3,500. It was not unusual that they lost their job and their home and suffered from social exclusion. The lives of hundreds of thousands of other gay men were characterized by their fear of detection, blackmail and loss of their livelihoods. In the former German Democratic Republic, Section 175 was abolished already in 1968. Until then, far less men had been convicted than in the West part of Germany, and they could also be rehabilitated by the suggested repeal Act.
In 2000, the German Bundestag expressed its regret to the victims of Section 175 in the Federal Republic of Germany, but - unlike in the case of the men who had been sentenced up to 1945 - has not rehabilitated them until today. In summer 2015 the Bundesrat spoke out in favour of a resolution for overturning these convictions.
„I call upon politicians of all parties to read this very balanced legal opinion with an open mind“, Lüders said.
„You will find out that existing reservations are taken seriously but are dispelled in a most convincing manner.“
Therefore, she hoped for a swift rehabilitation of the victims still living, Lüders said and continued:
“Section 175 has been a shameful special case of German legal history. Mere regret is by far not enough in this context. It is high time to repeal these judgements"
The legal opinion can be retrieved on the website of the Federal Anti-Discrimination Agency at www.antidiskriminierungsstelle.de, in German language only.
The Federal Anti-Discrimination Agency (FADA) was established when the General Equal Treatment Act (German abbreviation: AGG) entered into force in August 2006. This Act aims to prevent or eliminate any discrimination on grounds of racism or ethnic origin, gender, religion or belief, disability, age or sexual orientation.