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Germany: Criminal Rehabilitation for Men Convicted After 1945 for Homosexual Acts

(Aug. 9, 2017) On July 22, 2017, an act entered into force in Germany that criminally rehabilitates men who were convicted in the Federal Republic of Germany and in the former German Democratic Republic (East Germany) after May 8, 1945, for performing consensual homosexual acts. The criminal convictions are automatically annulled.  Upon request, the person’s criminal record will be expunged and the prosecutor’s office will issue a certificate that the person’s record has been rehabilitated.  (Gesetz zur strafrechtlichen Rehabilitierung der nach dem 8. Mai 1945 wegen einvernehmlicher homosexueller Handlungen  verurteilten Personen und zur Änderung des Einkommensteuergesetzes [Act to Criminally Rehabilitate Persons Who Have Been Convicted of Performing Consensual Homosexual Acts After May 8, 1945, and to Amend the Income Tax Act], July 17, 2017, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 2443, BGBl. website.)

If the convicted person is no longer alive, his registered life partner or spouse, his fiancé, his parents, his children, or his siblings may submit a request for a certificate from the prosecutor’s office stating that the convicted person has been criminally rehabilitated. (Id. § 3 ¶ 3.)

Compensation

The new act awards compensation to the previously convicted person. A request for compensation must be submitted to the Federal Office of Justice within five years of the act’s entry into force; only the convicted person may submit the compensation request.  (Id. § 6.)  A convicted person will receive €3,000 (about US$3,546) per annulled conviction and €1,500 (about US$1,773) per started year spent in prison.  (Id. § 5.)  The claim is not garnishable, transferrable, or inheritable. (Id. § 5.)

Background

The provision in the German Criminal Code that criminalized consensual homosexual acts (§ 175) had been abolished in 1994. (29. Strafrechtsänderungsgesetz – §§ 175, 182 [29th Criminal Law Amendment Act – §§ 175, 182], May 31, 1994, BGBl. I at 1168, art. 1, BGBl. website.) The provision had been amended several times before 1994 and varied with regard to the severity of the punishment.

On May 17, 2002, the German Bundestag (parliament) had passed an amendment to the Act to Annul Unlawful Criminal Verdicts of the National-Socialists that annulled convictions for performing homosexual acts that were pronounced between 1933 and 1945 during the Nazi era. (Gesetz zur Aufhebung nationalsozialistischer Unrechtsurteile in der Strafrechtspflege (NS-AufhG) [Act to Annul the Unlawful Criminal Verdicts of the National-Socialists], Aug. 25, 1998, BGBl. I at 2501, as amended, § 1, § 2, no. 3 in conjunction with Annex, no. 26, GERMAN LAWS ONLINE.)