1968 amendment to Section 50 of the Criminal Code takes effect

The 1968 amendment to Section 50 of the Criminal Code took effect on 1 October 1968, changing the sentencing rule for accessories and, through its interaction with limitation periods, helping close prosecutions of Nazi-era crimes. In the trial of Fabrizio Collini, the amendment became the explanation for why an investigation into Hans Meyer had been discontinued: the case had not been resolved by a finding that Meyer was innocent, but by a legal bar to prosecution.

The amendment and its wording

Until 30 September 1968, Section 50 of the Federal German Criminal Code stated that each person participating in a crime committed a punishable offence, irrespective of the guilt of others. Its second clause provided that special personal qualities or circumstances affecting punishment applied only to the offender or accessory concerned. The change took effect under Clause 1 No. 6 of the Introductory Act to Administrative Offences.

Under the revised text, when an accessory did not possess the special personal characteristics or circumstances that grounded the perpetrator’s criminal liability, the accessory’s penalty was to be mitigated according to the rules for punishment of an attempted crime. The provision retained the principle that special characteristics affecting a more severe or more lenient penalty, or excluding a penalty, applied only to the relevant offender or accessory. The shift was technical in form but consequential in practice: as Dr Schwan later explained, it meant that certain accessories to murder were treated for sentencing purposes as accessories to manslaughter.

How the change affected prosecution

The account given at trial linked the amended rule to the limitation periods for Nazi crimes. Dr Schwan explained that the new classification meant that certain acts had become time-barred and could no longer be prosecuted. The testimony described the change as the work of Dr Eduard Dreher, associated with the Introductory Act to Administrative Offences and the legal commentary later known as Dreher’s law.

The change’s effects were not initially recognized by the legal institutions involved. Dr Schwan said that legal administrations in the eleven federal states, members of the German Bundestag, and legal committees had failed to identify the consequence; the press exposed the issue, but by the time it was widely understood, the limitation periods had already run. She connected this outcome to preparations for major proceedings against the head office of Reich Security: the legal change had made prosecution of officials responsible for mass killings impossible in cases affected by the new rule.

The Meyer investigation in court

The amendment’s consequences became personal during the trial of Fabrizio Collini. Senior Public Prosecutor Reimers had initiated proceedings against Hans Meyer after accusations were made, and an investigation and case file followed. Dr Schwan’s testimony established that Meyer had not been questioned, charged, or convicted. Richard Mattinger used these facts, together with testimony concerning the legal criteria for a legitimate hostage shooting, to suggest that the proceedings had cleared Meyer. He then elicited confirmation that the Stuttgart Public Prosecutor’s Office had discontinued its investigation on 7 July 1969.

After Mattinger finished, Dr Schwan clarified that the investigation had indeed been discontinued but that this did not answer the question of Meyer’s guilt or innocence. She told the court that the statute of limitations had come into force. Caspar Leinen then set out what that meant for his client: Fabrizio Collini had reported the name of the man who had his father shot, provided the evidence, and trusted the authorities; about a year later, he received notice that the proceedings had been discontinued because of the limitation rule introduced by the 1968 law. The revelation distinguished a factual finding about Meyer from a procedural termination that prevented the case from being pursued.

Legal finality and historical responsibility

When asked why the law could not simply be repealed, Dr Schwan invoked a basic principle of a constitutional state governed by the rule of law: once an offence has become subject to a statute of limitations, that ruling cannot be reversed. The safeguard of legal finality thus also fixed the consequences of the 1968 change, even where those consequences foreclosed accountability for grave historical crimes.

The novel’s appendix sets out Section 50 before and after the amendment, placing the statutory wording beside the courtroom’s account of its effects. The issue also reached beyond the fictional trial: in January 2012, the Federal Minister of Justice appointed a committee to reassess the mark left on the ministry by its Nazi past, and the novel was one of the committee’s points of reference. The amendment’s significance therefore lies both in the legal mechanism it changed and in the lasting question it raises about whether a procedurally final case amounts to a reckoning with the conduct at its center.