A constitutional state is based on knowledge, not dogma

“Another defeat in the attempt to rehabilitate the victims of the criminalization of homosexual acts in our country’s past, would permanently shake the faith of many people in the meaning of their critical commitment and in the ability for self-correction in politics, justice and society,” said Frieder Otto Wolf, President of the Humanist Association of Germany, last Sunday in Berlin. The background to this is a new motion for a resolution on the rehabilitation of victims of criminal code paragraphs that have since been repealed, which was previously introduced to the Bundesrat by the Berlin government coalition. Around 50,000 people in Germany were punished for consensual sexual relations on the basis of Sections 175 and 175a. These sentences are now to be declared null and void and repealed. Previous attempts to achieve this rehabilitation of victims of views on the punishability of same-sex relationships that were obviously contrary to human rights were unsuccessful. “Our German state in particular has a special obligation to demonstrate unequivocally and practically that it recognizes its own historical errors, even towards homosexual people,” says Frieder Otto Wolf. Wolf welcomed the conclusions reached by Hans-Joachim Mengel, a lawyer commissioned by the Berlin Senate, in a corresponding expert report. Among other things, it stated: “In view of our history, the repeal would be proof of a deeply humanistic basic attitude in our society today and, in light of the current international discussion on the protection of human rights, a clear signal for homosexuals as well.” Wolf described previously expressed views that these convictions could not be overturned because they had come about procedurally “in accordance with the rule of law” despite undeniably false assumptions, and that overturning them would therefore threaten legal certainty, as untenable and indefensible. After all, a constitutional state is based “first and foremost on basing law and jurisdiction on knowledge in order to safeguard human rights and human dignity, and not on unswervingly adhering to serious errors – of whatever kind – by invoking formally correct procedures”. The desire for the rehabilitation of all these people should therefore not be subordinated to legal dogmatic notions of legal certainty, nor should criminal convictions whose foundations have long been proven to be wrong and profoundly illegitimate be granted any other protection. Holding on to these objectively wrong decisions undermines people’s trust in the rule of law in the name of its fundamental principles. Wolf emphasized: “An enlightened society should be able to expect that the injustice committed by its state in error will be labeled as such and revised.” Further information: Petition for the rehabilitation and compensation of those convicted under §175