This has generally not occurred. Although objectionable Nazi laws have of course been repealed, I am not aware that this has been expressed to occur retrospectively, and the courts have not implied any such intention either.
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But the fact that any such repeal, express or implied, would have to occur retrospectively means that, as far as the topic dealt with here is concerned, the difference between these two camps is considerably reduced: either natural law is taken to have invalidated the statutes when enacted, although that was of course not something that in practice could be enforced or even necessarily known at the time, but can be enforced and appreciated only in hindsight; or alternatively, the statutes must be invalidated retrospectively by a positive law.
In either case there is a clear element of retrospectivity in what the courts do.
The reason is simple: although East Germany was a state not based on the rule of law as that term is generally understood,  it was not responsible for anywhere near the same enormities as the Nazi regime. It is not necessary to describe here how the criminal law of the Federal Republic has been technically adapted so that it can apply in eastern Germany to crimes committed before reunification. As discussed above, the German legal system is now faced with prosecutions under domestic law of those who did the shooting at the Berlin Wall and the inner-German border.
Many were young conscripts with little choice but to serve their turn of border duty, . All these defendants claim that the practice of the East German state or various of its laws justified the acts that they did, and that this amounts to a defence in law. For if they do not, there is no need to determine the precise scope of East German practice or law; it has to be disregarded as a grave offence to human rights.
As far as the legal system is concerned, the answer to these questions was provided by the decision of the Federal Constitutional Court dated 24 October ,  according to which the prohibition of retrospective laws does not prevent prosecutions, despite the alleged defences based on the practice of the state at the time and various East German laws about illegal border crossing and the use of weapons to prevent it. Criminal defences as a class, whether written or unwritten, are certainly not exempt from the protection afforded by the prohibition of retrospectivity, which prohibits their retrospective abolition or weakening.
Laws enacted by a legislature that is bound by such a catalogue could not deviate too much from the basic demands of substantive justice.
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Thus, the tension between substantive and systemic or formal justice could never be so great that the former would be preferred to the latter. But the situation is otherwise when the laws or practices concerned are those of a legal system unable to effectively protect basic rights, such as that of East Germany. But the rule against retrospectivity cannot be applied to soldiers at the Berlin Wall if that would permit grave injustices perpetrated by the state to be perpetuated. Just as after the War, this does not mean that the soldiers are punished under principles that were developed only after they did the acts concerned: these natural law considerations, said the Court, belong to the core area of law which is not susceptible of alteration by the state and which existed when the soldiers shot the would-be escapees.
As will be discussed below, this is far from uncontroversial. But Antigone saw this too, and justified the non-applicability of the prohibition on retrospective laws in the following way. Referring to the principles of natural law, she said:. The only significant technical difference between the soldiers at the Wall and some of the crimes committed by the Nazis is that, in East Germany, what the soldiers did was already an offence under East German law; it was necessary only to disregard - retrospectively - the alleged defence based on the practice of the state or the border law in accordance with the principles previously discussed.
The decision of the Federal Constitutional Court outlined above followed a long tradition of the ordinary that is, non-constitutional courts of West Germany. This delimitation of the bounds of the principle as applied to these cases shows that some exceptions to the general rule are possible. If, for example, an armed person attempts to cross the border, the illegality of shooting back will not be plain.
However, the courts are aware of the fact that the East German offences do fall somewhat closer to the borderline and that a more precise measuring-stick is accordingly needed. This is provided by the various international treaties that have grown up since the War on human rights and which the Berlin Wall and the associated shootings clearly contravened  - the most obvious example is art 13 II of the Universal Declaration of Human Rights. Both those who gave the orders and those who carried them out are punishable.
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However, he has a good chance of having half his sentence converted to a suspended sentence in exercise of the prerogative of mercy, as has happened to the former commander of the border troops, who also received six and a half years. For various reasons, no other cases of retrospective or apparently retrospective punishment for offences committed under the East German dictatorship have caused nearly as much controversy in the courts. It would appear at first glance that any punishment of a German from East Germany would have to be retrospective if conducted under West German law, but for technical reasons that is not always the case.
For example, West German law always contained long prison sentences for East German spies if their conduct had or was intended to have results on West German territory. And while working within East Germany as a spy for the East German secret police was not as such an offence under West German law, it often led to the commission of offences. This paragraph had been inserted into the Code in the s precisely for the purpose of providing in advance for punishment in these cases, in the expectation of imminent reunification.
Finally, the much indulged in practices of electoral fraud  and perversion of the course of justice . Accordingly, there is no question of retrospectivity when German law is now applied, provided the maximum penalties under the old East German laws are not exceeded. The decisions in the Berlin Wall cases have set off a storm of scholarly criticism, some negative and some positive.
A summary of the scholarly reaction is attempted here in order to indicate how very controversial this exception is.
Perhaps the first objection to be considered is that raised by Hobbes, who favoured the creation of a total or partial excuse for those acting under the orders of the legislature, the executive or other superiors. The problem with this argument is that reliance is generally only protected in German law if the interest thus protected is worthy of legal protection.
A state practice contrary to basic canons of human rights jurisprudence does not seem to be such an interest. At any rate, the Criminal Code of East Germany contained express provisions . Whether the shootings at the Berlin Wall were such basic or fundamental breaches is said not to be a question for intuitive decision, . Those who deny the existence of infringements of basic human rights can at least point to the undisputed fact that the acts committed in the name of East Germany were nowhere near as shocking as those committed in the name of the Third Reich.
The obvious objection to this is that that Law was never more than a cynical facade, created for the benefit of international public opinion, and would thus be an absurd measuring-stick for any just legal system, .
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Now that East Germany has gone, there is no need to perpetuate the injustices of its legal system. One scholar maintains that the rule against retrospectivity is an absolute law of nature which is self-evidently true, . A less extreme view than this, which has its roots in positivism rather than natural law theories about retrospectivity, is that art II is not the start of the journey for justice under the Constitution , but its end point.
For others, art II is a strict rule of law which admits of no exceptions whatsoever. Still others take exception to the vagueness of the formula,  while one commentary objects to the loss of foreseeability in the legal system caused by the application of the formula. As stated above, the Court relied on the existence and enforcement of rights under the Basic Law rather than on the precise content of the rights, but there comes a point when a catalogue of rights is so meagre or so badly enforced that it no longer suffices.
Whatever the precise requirements of the rule are, the West German system for the protection of basic rights clearly did satisfy them, and the East German system clearly did not. Some treaties, it is said, came into force only after some of the shootings occurred. The Wall itself was a general prohibition of leaving the country, not a mere exceptional measure for a few renegades or criminals. This objection is supported by the argument that not even West German law contains an unrestricted right to leave the country.
Nor do the legal systems of other Western countries. For example, criminals serving prison sentences cannot generally leave,  and sometimes people trying to leave West Germany have been shot at. But this did not occur simply because they were trying to exercise their right to leave the country, nor as a regular practice backed by a wall and orders to shoot on sight. Disappointingly, few commentators have recognised that the Court was not saying at all that these human rights treaties were part of East German domestic law; rather, they were a means of defining the content of the supra-positive natural law which is not dependent on the state for recognition.
The most convincing of all objections to the current jurisprudence lies outside the scope of constitutional law and therefore of these reflections.
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This objection is that the criminal courts should have investigated whether the necessary element of personal guilt existed in relation to young, indoctrinated border soldiers, who might not necessarily have been able to recognise the wrongfulness of their acts to the extent demanded by German criminal law. If they fall under this heading, they would be treated in the same fashion as, for example, minors  or those labouring under an unavoidable error of law resulting in a lack of appreciation of the wrongfulness of an act.
On the constitutional level, then, the principle seems clear enough, despite the numerous objections of the legal academics.
Like those who committed Holocaust atrocities, those involved in the shootings at the Berlin Wall can be prosecuted despite an element of retrospectivity, because of the gravity of the blows dealt to human rights. Nevertheless, it did not say that the separation of powers was a reason for the existence of the prohibition of retrospectivity, or that the prohibition was in some way a consequence of the separation of powers. The separation of powers was just one of the basic legal assumptions made by the Basic Law which had to be considered in deciding whether another part of the Basic Law , art II, could be applied in the unique situation facing the Court.
One is reminded of the basic assumptions made by the drafters of the Australian Constitution , such as the assumption that the common law applies in Australia, which are themselves devoid of constitutionally enforceable content. The justification for the rule against retrospectivity in Germany thus has nothing to do with the separation of powers: it has everything to do with the existence of a catalogue of basic rights in the Constitution and the reliance interest.
The Federal Constitutional Court certainly did not suggest that the separation of powers, as it now exists in Germany, prevented the retrospective abolition of the alleged defences on which those accused of shooting at the Wall relied. If it had been of that view, it could not have permitted the prosecutions to proceed at all, for the separation of powers is an enforceable principle of the German constitutional system too. The Court mentioned the separation of powers because the East German Constitution contained - again, for international consumption - a catalogue of basic rights.
But these were empty words because of the lack of an independent judiciary. Thus, the absence of an effective separation of powers was part of the context in which the protection of basic rights was insufficient and the reliance interest normally protected by art II accordingly did not arise. The German courts do not refuse to allow retrospective prosecutions. Rather, they decide when such prosecutions are permissible.
It is impossible to extract, from that situation, a strict separation of powers precluding retrospective prosecutions because they infringe the independence of the courts. Not only the courts, but also some German scholars have considered whether the rule against retrospectivity can be derived from, or exists in order to support, the separation of powers. It is clear enough that the other principles derived from art II, including the prohibition on non-statutory offences, the specificity clause and the prohibition on drawing analogies, are most certainly servants of the principle of separation of powers.
Different components of art II may serve different purposes. The addressee of the prohibition of retrospectivity is the legislature, which already enjoys the exclusive right to authorise criminal laws in accordance with other norms. The prohibition does not seek to prevent the courts or the executive from exceeding their functions.
The ability of the executive, for example, to contribute to criminal legislation by regulation is circumscribed by other laws  and, so far as those laws allow the executive government to make regulations in the criminal law, the executive is of course also caught by the prohibition of retrospectivity. The prohibition determines the ways in which the legislature may exercise the functions conferred on it by other laws. The conferral of functions occurs logically prior to the determination of the way in which those functions can be exercised.
First comes the authorisation to make laws, and, subsequent to this, the prohibition on making them in a particular manner. The opinion of scholars such as Ransiek and Rudolphi, who contend that the prohibition of retrospectivity does not exist to support the separation of powers, therefore seems to be correct.
The prohibition is a result of principles of German law which have equivalents, if at all, only in Australian constitutional practice, and not in the textually-grounded constitutional norms from which alone, according to cases such as Lange v ABC  and McGinty v Western Australia ,  implications may be drawn.
The two most important German norms that support the prohibition against retrospectivity are the prohibition on arbitrary state action by the withdrawal of a norm on which the citizen could rely, . Incidentally, these are the same principles from which the unwritten prohibition of non-criminal retrospectivity, which we refuse to accept in Australia, is derived. Admittedly, caution must be exercised in comparative constitutional law at this level of detail in order to ensure that like is compared with like.
There is no special feature of the German system which affects such a comparison with Australian law.