The Filbinger affair or the Filbinger case in 1978 was a controversy about the behavior of Hans Filbinger (1913–2007) during the Nazi era and his handling of it as Prime Minister of Baden-Württemberg. It began in February 1978 with Filbinger's injunction against the playwright Rolf Hochhuth, who had publicly called him a "terrible lawyer".
As the case progressed, four death sentences were discovered that Filbinger had requested or passed as a military judge in the Navy in 1943 and 1945. He had previously denied three of them and then claimed to have forgotten them, but maintained that they were legal. In the face of growing public criticism, he lost the support of the CDU, of which he had been a member since 1951. He then resigned as Prime Minister on August 7, 1978."High German Aide, and Ex-Nazi, Resigns", The New York Times, August 8, 1978, p.A-7
His attempts at rehabilitation, which continued until his death on April 1, 2007, and a controversial eulogy by Günther Oettinger for him kept the memory of the affair alive. It influenced the coming to terms with the past in the Federal Republic of Germany and the rehabilitation of the victims of the Nazi military justice system. Filbinger's behavior during the Nazi era is today seen as an example of the failure of many perpetrators and accomplices among the lawyers of the time.Reinhard Mohr: Nachruf auf Hans Filbinger: Ministerpräsident, Marinerichter, Mitläufer. Der Spiegel, 2nd April 2007.
Past history
Military judges during and after World War II Filbinger became a member of the NSDAP during his legal training in 1937 and volunteered as a soldier in the German Navy in 1940. In March 1943 he was appointed to the naval justice system. He worked in five military courts in northern Germany and Norway and took part in at least 234 criminal proceedings. In 169 cases he was directly responsible for the verdict and sentencing as presiding judge, and in 63 cases indirectly as prosecutor or investigator. After the end of the war, he was a British prisoner of war in Oslo and was then employed as a naval judge to supervise camps until February 1946.Torben Fischer, Matthias N. Lorenz (Hrsg.): Lexikon der ‚Vergangenheitsbewältigung' in Deutschland. Debatten- und Diskursgeschichte des Nationalsozialismus nach 1945. 2. Auflage, Transcript, Bielefeld 2009, , S. 203.
This chapter of his biography first became a media topic in 1972, but was not publicly debated nationwide until 1978. Files from 41 cases in which Filbinger was involved, which had previously been ignored, were found in the Kornelimünster branch of the Federal Archives by June 13, 1978, but he did not release them for inspection.Heinrich Senfft: Richter und andere Bürger, Nördlingen 1988, p. 23.
Filbinger's trial against Der Spiegel in 1972
On April 10, 1972, the magazine Der Spiegel reported on Kurt Olaf Petzold, who, as a prisoner in a British prisoner of war camp, had torn swastikas from his clothing and refused to comply with an order to move, saying: "You've done it now. You Nazi dogs, you are to blame for this war. I'll tell the English what Nazi dogs you are, then my time will come." On June 1, 1945, naval judge Filbinger sentenced him to six months in prison, citing a "high degree of moral deterioration." Petzold had "acted in a destructive and inciting manner for manliness." The term "manliness" came from Prussian military tradition and determined soldier training and military law under National Socialism.Heinrich Senfft: Richter und andere Bürger, Nördlingen 1988, p. 16 f. In the final phase of the war, Wehrmacht judges, particularly those of the Navy, had justified thousands of death sentences for mostly minor service or disciplinary offenses with a "danger to manliness."Norbert Haase: Gefahr für die Manneszucht. Zur Geschichte der Verfolgung von Nichtanpassung, Verweigerung und Widerstand der Deutschen Wehrmacht im Spiegel der Spruchtätigkeit von Marinegerichten in Wilhelmshaven (1939–1945). Hahnsche Buchhandlung, Bremen 1995,
In an interview with Der Spiegel in 1972, Petzold explained that Filbinger had praised "our beloved Führer" before his trial, who "brought the fatherland back to life". Filbinger sued for the injunction against making these statements. He no longer remembers the case, but as a "religious personality" he "actively opposed this regime on many occasions". In 1933 he was excluded from the German National Academic Foundation for anti-Nazi views and later became a member of a well-known anti-regime circle in Freiburg. In addition, as an impartial naval judge, he secured a retrial for the priest Karl Heinz Möbius, who had been sentenced to death for "undermining military morale", in the spring of 1945, in which Möbius was acquitted. For Lieutenant Guido Forstmeier, he averted an impending death sentence by delaying the trial.Heinrich Senfft: Richter und andere Bürger, Nördlingen 1988, p. 31, Fn. 10.
Filbinger did not submit any files on these cases; they were not found later either. But both of them testified in writing several times that Filbinger had saved their lives.Thomas Ramge: Der furchtbare Jurist, in: Thomas Ramge: Die großen Polit-Skandale, Frankfurt am Main 2003, p. 143.Horst Bieber, Joachim Holtz, Joachim Schilde, Hans Schueler, Theo Sommer: Dokumentation: Erschießen, Sargen, Abtransportieren.Die Zeit, May 12, 1978; updated reprint, March 30, 2007 / April 16, 2007. Adolf Harms, Filbinger's colleague as a naval judge and who had worked at the same military court since 1944, testified that he had "a decidedly negative attitude" toward the Nazi regime.Heinrich Senfft: Richter und andere Bürger, Nördlingen 1988, p. 16. The court upheld Filbinger's claim on August 3, 1972, because it considered the statements quoted by Petzold to be improbable and suspected a mix-up.Heinrich Senfft: Richter und andere Bürger, Nördlingen 1988, p. 21.
Filbinger's memorial speech 1974 In memory of the assassination attempt on July 20, 1944, Filbinger, as President of the Federal Council, gave a speech on resistance to National Socialism in the Berlin Reichstag building on July 19, 1974. He first described the background to the assassination attempt and the participants' pangs of conscience. He then explained that during the Nazi era he had been part of the Freiburg circle of friends around the Catholic writer Reinhold Schneider, who had contacts with resistance groups, and had "acted out of the spirit that inspired this circle, accepting the risks that this entailed." Nevertheless, he felt that his actions at the time were a "serious omission" in view of what was necessary. He saw this aptly expressed in the Stuttgart confession of guilt of October 1945, the key sentence of which he quoted. He then described the church struggle of the Catholic bishops and the Confessing Church, which had developed since 1933 into a "total front of resistance" and was aimed at "the National Socialist system itself." Some relatives of executed resistance fighters had already protested against Filbinger's right to speak beforehand.Hans Filbinger: Die Reinigung des deutschen Namens. Commemorative speech on July 20, 1944, Berlin, July 19, 1974 (PDF; 79 kB).
During the speech, hecklers such as "Nazi", "hypocrite", "Nazi judge" were heard until the shouters were expelled from the hall. The weekly newspaper Die Zeit commented on the incidents with reference to the Petzold case, which became known in 1972: "... anyone who sentences a soldier in a prison camp to six months in prison after the end of the war for 'rebellion against discipline and order' and for 'moral deterioration' has little in common with those who rebelled against the order of that time."Fehl am Platz. In: Die Zeit, 26. July 1974 (subject to a charge).
The contemporary historian Peter Reichel compared the speeches and showed the differences between Filbinger's memorial speech and Gustav Heinemann's speech from 1969. Filbinger's appearance and speech presented "a completely different picture". In contrast to him, Heinemann acknowledged the communist resistance, pointed out the undemocratic, German nationalist tradition of the July 20 assassins, described the division of Germany as a consequence of their coming too late and failing, and finally named his own shortcomings during the Nazi era in concrete biographical terms.Peter Reichel: Schwarz, Rot, Gold. Kleine Geschichte Deutscher Nationalsymbole nach 1945. Beck, München 2005, , , p. 71 f.
Process
Filbinger's trial against Rolf Hochhuth and the time 1978 In an advance copy of his novel Eine Liebe in Deutschland (A Love in Germany) from February 17, 1978, Rolf Hochhuth described Filbinger as "Hitler's naval judge, who even prosecuted a German sailor under Nazi laws while he was still in British captivity after Hitler's death." He was "such a terrible lawyer that one has to assume - because the naval judges were smarter than those of the army and air force, they destroyed the files at the end of the war - that he is only free thanks to the silence of those who knew him."Heinrich Senfft: Richter und andere Bürger, Nördlingen 1988, p. 18.
Following Filbinger's renewed injunction, the Stuttgart Regional Court issued an interim injunction on May 23, 1978, prohibiting the claim that he had only escaped a prison sentence for obstruction of justice. Hochhuth had previously retracted this part of his statements: they were absurd, since no judge of the Nazi era in the Federal Republic had ever been punished for unjust verdicts. The court permitted the remaining statements as free and partly fact-based expression of opinion. This initially seemed to be the end of the affair.Heinrich Senfft: Richter und andere Bürger, Nördlingen 1988, p. 22 f.
However, Filbinger also wanted to legally compel Die Zeit not to print any of Hochhuth's statements about him. In the course of this process, the Federal Archives in Kornelimünster granted the lawyers on both sides access to the files of the naval courts in which Filbinger had worked. In April 1978, Hochhuth found the Walter Gröger case, which Die Zeit editor-in-chief Theo Sommer presented to Filbinger on May 4. Sommer's lawyer Heinrich Senfft presented it in his plea on May 9, referring to the 1972 verdict and asking who had forced Filbinger, given his alleged anti-Nazi views and his commitment to those sentenced to death, to apply for the death sentence this time and to order its execution.Heinrich Senfft: Richter und andere Bürger, Nördlingen 1988, p. 37.
Erich Schwinge responded with a legal opinion that the Gröger case could not be blamed on Filbinger, either legally or morally. Schwinge was a leading military criminal lawyer during the Nazi era. In his legal commentary on the Military Penal Code, which was tightened in 1940, he had called for the death penalty for "undermining military morale" as a general preventive measure, and as a Wehrmacht judge he himself had imposed death sentences.Bernhard Nolz, Wolfgang Popp: Erinnerungsarbeit. Grundlage einer Kultur des Friedens. LIT Verlag, Münster 2000, , p. 105–107. From 1949 onwards he defended former Wehrmacht and SS members in around 150 trials and influenced West German jurisprudence until 1995 with his thesis that the Nazi military justice system had represented constitutional principles against National Socialism.Detlef Garbe: „In jedem Einzelfall ... bis zur Todesstrafe". Der Militärstrafrechtler Erich Schwinge. Ein deutsches Juristenleben. Hamburger Stiftung für Sozialgeschichte, Hamburg 1989, , p. 58–60; Stefan Chr. Saar: „Ich trage aber nicht Verantwortung dafür" – Erich Schwinge (1903–1994). In: Stefan Chr. Saar, Andreas Roth, Christian Hattenhauer (Hrsg.): Recht als Erbe und Aufgabe. Heinz Holzhauer zum 21. April 2005. Publisher Erich Schmidt, Berlin 2005, , pp. 332-349.