Germany's justice ministry and its Nazi past

First he was a state prosecutor at a special court in Innsbruck. Then, in the early days of the Federal Republic, he became a high-ranking official in the Justice Ministry. Eduard Dreher is one of many Nazi lawyers whose careers were swiftly revived after 1945. Dreher had no need to fear prosecution by reputable courts, because he ensured – from his position within the ministry in charge – that thousands of Nazi judges, including himself, would go unpunished. And this despite the fact that historians were able to prove that before 1945 he imposed the death penalty in at least 17 cases in accordance with Nazi ideology.

A different system, with the same judiciary

The "Dreher case" is representative of the conclusion reached by an independent commission of historians after four years of studying the files in the Justice Ministry archives: that there was a high degree of continuity between the personnel of the Nazi judiciary and the Justice Ministry in the young Federal Republic. The research project was initiated in 2012 by the former federal German justice minister.

The findings of the "Rosenburg File" – a dossier compiled by the historians and named after the ministry's first official residence in Bonn – were presented in Berlin on Monday (10.10.2016). Manfred Görtemaker, Professor of Modern History at the University of Potsdam, was shocked by the number of those who made their careers in post-war Germany who had a Nazi past. "In some departments, more or less everyone had such a past," he said.

The numbers are certainly shocking. Of 170 jurists occupying leadership posts in the post-war German ministry, 90 had been card-carrying members of Hitler's NSDAP. 34 had even been members of the Nazis' paramilitary stormtrooper division, the SA.

Görtemaker and a team of historians and lawyers were able to inspect all of the ministry's personnel files dating from 1949 to 1973 which had, until now, remained secret. The current federal justice minister, Heiko Maas (SPD) thanked the historians for their efforts in illuminating the subject, and said it was also a warning for us today, since "experience in the Nazi judiciary was clearly valued more highly in the young Federal Republic than democratic convictions."

During the presentation of the report, former Justice Minister Sabine Leutheusser-Schnarrenberger also made the link to the current situation, with right-wing populists and far-right extremist violence posing fresh challenges to democratic institutions. "If we just look at how the word 'völkisch' [a synonym for 'national,' with specific National Socialist associations – Ed.] is being used again today, we should pay very close attention to what happens when ethnic origins and race become criteria on which political actions are based," she said.

Jurists protecting themselves against prosecution

The report makes it unequivocally clear that the infiltration of the post-war judiciary had political consequences. After 1949, former Nazi jurists pulled out all the stops to thwart the prosecution of Nazi criminals, according to Professor Görtemaker. "After 1949 there wasn't a single judge or state prosecutor who was held accountable for what he did during the Third Reich," he said. The judiciary effectively granted itself a collective amnesty. The so-called "central legal protection unit," a ministry subdivision, was substantially involved in this. Görtemaker explained that it was charged with warning Nazi criminals living abroad that they were liable to be prosecuted – "meaning that the Federal Justice Ministry was actively involved preventing criminal prosecutions."

Furthermore, from 1959 onwards the federal German government formulated a secret martial law. These documents, consisting of 45 emergency decrees, were written by leading jurists with Nazi pasts and exude the spirit of the Third Reich's wrongful laws. "This secret martial law had no foundation in the Basic Law, and many of its provisions even contravened fundamental constitutional rights. For example, police preventative detention was to be introduced – the return of the infamous protective custody," explained Justice Minister Heiko Maas. This illustrated why this was an "organized breach of the Constitution" – one that was actively assisted by lawyers with Nazi pasts.

These lawyers were particularly brazen in taking action to prevent their own prosecution, Professor Görtemaker added. Leading jurists, including Eduard Dreher, worked specifically to effect changes in the law that led to a very short statute of limitations for Nazi crimes. "The result was that thousands or even tens of thousands of people who aided and abetted crimes went unpunished," said Görtemaker.

Compensation for the wrongly condemned?

The historians also said that some laws were not sufficiently de-Nazified. Thus discrimination against homosexuals or Sinti and Roma under the Third Reich was transmitted to the Federal Republic. The justice minister cited as an example the persecution of homosexuals after 1945, based on Paragraph 175 of the penal code, which was carried over from the National Socialist dictatorship. The paragraph made sex between men a punishable offense.

Maas said that the victims of such unjust laws should now be rehabilitated. In the case of homosexuals, around 50,000 were convicted before the paragraph was finally abolished in 1994. 50,000 unjust sentences, which the justice minister wants to declare unjust in an amendment to the law. Furthermore, victims should be entitled to claim compensation. For expert witness Christoph Safferling, Professor of Criminal Law at the University of Nürnberg-Erlangen, this is visible proof of why historical reappraisal of the past is not an irrelevance: "This is about nothing less than the fight for the rule of law – in every sense."