Anti-Discrimination Agency appreciates the legal rehabilitation of prosecuted homosexuals - "Stain on legal history has been removed"

Year of issue 2017
Date 2017.06.22

On Thursday night the Bundestag intends to adopt the 'Act to Criminally Rehabilitate Persons Who Have Been Convicted of Performing Consensual Homosexual Acts, After May 8, 1945'. This Act automatically quashes the convictions against gay men sentenced for performing consensual homosexual acts in the Federal Republic of Germany and in the former German Democratic Republic (East Germany) after 1945, under section 175 of the Criminal Code and/or the sections subsequently replacing it.

"More than two decades after the abolishment of section 175 of the German Criminal Code, this stain on democratic Germany's legal history was removed. It is very important for those who had been convicted and are still alive that the legislator now clarifies that actually they have never ever been guilty of any offence", said Mrs Christine Lüders, the Head of the Federal Anti-Discrimination Agency in Berlin on Thursday. "With its decision of today, the Bundestag acknowledges that it has to compensate those in most cases meanwhile very old men for the injustice suffered - and that the stigma of having been convicted has finally been overcome. The compensation which is granted to the people affected has an important symbolic function, although the sum offered is rather small."

According to that Act, the victims of section 175 of the German Criminal Code are granted a lump-sum compensation of 3000 euros for every conviction as well as an additional amount of 1500 euros for every completed or unfinished year of imprisonment.

From the point of view of the Federal Anti-Discrimination Agency it is extremely regrettable that, at the very end of the parliamentary deliberations, the men convicted in cases where one of the partners had been between 14 and 16 years of age were partly excluded from the Rehabilitation Act. "It would have been right and in accordance with the case law of the European Court of Human Rights to subsequently determine the same age of consent for homosexual relationships which was and until today still is applicable to heterosexual couples", Mrs Lüders emphasized. The amendments to the wording of the Act effected by the Committee on Legal Affairs meant an uninterrupted unequal treatment.

In May 2016, the Federal Anti-Discrimination Agency had presented a legal opinion by Professor Dr Martin Burgi, a constitutional law expert, which for the first time demonstrated that the Basic Law does not only allow a rehabilitation of the affected men, but even obliges the legislator to take measures to this effect. As an immediate reaction to that legal opinion, Federal Minister of Justice Heike Maas announced to have the draft of a Rehabilitation Act elaborated.

The Federal Anti-Discrimination Agency (ADS for its initials in German) 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.