the nationality of all inhabitants of the czech provinces and ...

Disregarding the partial amnesties
already issued (the amnesty of the
President of the Republic in the matter
of the military judicature of August 29,
1945, and the government resolution
concerning a general amnesty in the
matter of administrative crimes –
Interior Ministry Ordinance 296 of
October 2, 1945), Constitutional Decree
No. 11 of the President of the Republic
of 1944, from the Central Czechoslovak
Gazette, concerning the renewal of the
legal order, resolved some issues
concerning the general nature of
amnesty. From this point of view,
Article 10 of this decree was important.
In it, it states: “If someone was convicted
during the time of loss of freedom by a
criminal court or an official body for an
act which was criminal according to
Czechoslovak law, then the conviction is
revoked if the act was committed with
the intention of promoting the liberation
of the Czechoslovak Republic.” This
proposal was to be decided on by a court
or appropriate authority, while being
directed by the corresponding regulation
on the re-opening of proceedings.
In his commentary on that decree the
leading German anti-Nazi and member
of the Legal Council of the exile
government, E. Schwelb, characterised
acts of this kind as “criminal acts
committed out of patriotism.” He
elaborated on this: “In reality, Article 10
provides a ruling on amnesty by the
legislature, which, of course, means that,
where the guilty party fulfils the legal
requirements, he has a legal right to
revocation of the sentence. ...For the
sentence to be revoked according to
Article 10, it is enough that it was
committed with the intention of
assisting the liberation of the
Czechoslovak Republic. It was not
necessary that patriotism be the only
motive for committing this criminal act.”
The motive for the criminal act to
which amnesty was to be applied was to be
taken into consideration. The appropriate
institution, usually the court, was to decide
on its application in specific cases.
Motive as a reason for impunity was
therefore nothing new in the
The Transfer and its Legal Aspects
257
Chapter VII
Czechoslovak criminal code. It had been
a justification for amnesty since the
beginning of the Czechoslovak State.
The Genesis
of Law No. 115/1946 Coll.
On September 6, 1945, the government
decided that an amnesty should be
drafted that would apply to those acts
committed during the “revolutionary
period” against a defined group of
persons (Germans, Hungarians, and
those who were guilty according to the
Retribution Decree). The “revolutionary
period” was specified as the period from
May 5, 1945, to July 9, 1945, i.e. to the
day of the enactment of the Retribution
Decree. Excluded from benefit of
amnesty were acts that had been
committed out of greed or for the
purpose of debauchery, or enabling or
concealing another criminal act.
However, in the end the Government
decided on December 20, 1945, to tackle
the entire issue by means of a law, and
then gradually crystallised its ideas in a
government proposal.
The bill discussed in the government
on February 5, 1946, was entitled
“impunity for acts connected with the
fight to liberate the Czechs and Slovaks.”
Paragraph I contained the provision that
any act, which would have been deemed
a criminal act according to valid
regulations, “would not be punishable if
it was committed in the period from
September 30, 1938 to October 20,
1945, for the purposes of the struggle to
restore the freedom of the Czechs and
Slovaks, or was the expression of a desire
for just retribution for the acts of the
occupying forces or their accomplices”.
The next resolution in Paragraph II was
mainly of a procedural character.
In the preamble to the bill signed by
Zdeněk Fierlinger and Jan Stránský, it
states: “During the occupation and in the
revolutionary period after restoration of
the freedom of Czechs and Slovaks, it
frequently happened that those who stood
intransigently behind the idea of the
freedom of the Czech and Slovak nations
and the Czechoslovak Republic, acted
against the enemies of the state and