Opinions - 06.02.2014 - 00:00 

Rehabilitation of "offenders"

Paul Grüninger was convicted in 1940 and pardoned subsequently in the 1990s. HSG Law Professor Lukas Gschwend on the difference between political and legal rehabilitation.


4 February 2014. With the movie "Die Akte Grüninger", a difficult chapter of St.Gallen’s history during World War II once more appears in the public eye. In 1939, the government fired Paul Grüninger, then St.Gallen’s police commander, who was accused of illegally supporting Jewish refugees. In 1940, he was convicted of breach of official duty and falsification of documents by the District Court. In 1993, the St.Gallen government politically rehabilitated Grüninger, who died in 1972. Two years later, the St.Gallen District Court rehabilitated him legally.

Definition of rehabilitation
The term "Rehabilitation" has various meanings. In a legal context, it is usually defined as the subsequent acquittal of a convicted person after a retrial or appeal proceedings, occasionally also including a repeal of sanctions or a pardon. Based on new findings or evidence, a convicted person can be acquitted even decades after the conviction through appeal proceedings, if his or her innocence is subsequently proven. If the person has died, a posthumous legal judgment only serves his or her legal protection to a limited extent, but it affirms the law’s obligation to the principles of truth and justice over time. The rule of law in principle thus requires a state to correct errors of justice.

Change of law and morality
Nonetheless, the legal reappraisal of past acts of justice is not without problems. Like all human institutions, justice moves with the tides of time. Thus, not only do laws change but the concepts of law and morality, possible insights and judicial self-understanding are also subject to constant change. It is questionable and usually pointless to pass judgment on historic circumstances according to the prevailing law, at least if one refers only to positive law. However, a contemporary court is able to examine whether a previous court properly applied the prevailing law of the time, at least if there were already constitutional grounds with explicit legal principles and thorough records. In such cases, including the Grüninger case, a reappraisal not only makes sense but also proves justice’s unconditional legal obligation in a state under the rule of law. It is questionable, by contrast, whether a contemporary court is supposed to assess circumstances that were part of a totally different, long-ago historic environment. Examples include Early Modern witchcraft trials, the conviction of martyrs in ancient times or the legal regulation of war booty and conquests during the Ancien Regime. In those cases, a legal rehabilitation cannot be sensibly accomplished. It is not for justice to correct all errors and injustices in human history.

Rehabilitation in a historic context
In this context, the political rehabilitation of a past legal act based on a legal, historic assessment can be useful, even if it causes a primarily moral, vs. legal, rehabilitation of historic persons and circumstances. If political institutions today explicitly rehabilitate women who were once convicted and executed as witches, or minorities who were discriminated against and prosecuted by authorities, it is a historically important ethical value of coming to terms with the past and correcting the view of history. It also increases awareness of wrong legal decisions in the present and future. The courts and every thinking and responsible human being must be aware of possible errors.

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