It is part of the essence of political responsibility that it can also take effect without personal misconduct. Even if there is little or nothing wrong with the allegations against a democratic mandate holder, resignation can be appropriate, yes: inevitable. That is exactly what happened to Hans Filbinger, who had governed Baden-Württemberg very successfully as Prime Minister for the CDU since 1966 – he had to resign on August 7, 1978.
The “Filbinger Affair” was triggered by a publicist with an ethics attitude: Rolf Hochhuth. As with his campaign against the late Pope Pius XII (which by the way still dominates public perception today). since 1963, in the case of the CDU politician, too, a literary veiled defamation had been the trigger.
In the preprint of his novel Eine Liebe in Deutschland in the weekly newspaper Die Zeit on February 17, 1978, Hochhuth described Filbinger as “Hitler’s naval judge who, even in British captivity after Hitler’s death, persecuted a German sailor with Nazi laws”. He was “such a terrible ‘lawyer’ that one has to assume – because the naval judges were smarter than those in the army and air force, they destroyed the files at the end of the war – he is only at large thanks to the silence of those who knew him”. .
Both were so inaccurate. It is true that on June 1, 1945, as a naval judge in British captivity, Filbinger had actually sentenced a German sailor to six months in prison for disobeying orders and insubordination – but on the basis of the military criminal law from 1872, which was still formally in force. This law was interpreted excessively by judges up until Hitler’s end and often waived the death penalty for charges such as insubordination. Filbinger’s sentence (six months in prison) did not correspond to the practice of Wehrmacht justice.
The second allegation was also unfounded. Because the files on proceedings in which Filbinger was involved from March 1943, when he was seconded to the naval justice system, until May 1945 are documented for 234 criminal proceedings; there were at least six other procedures that were not (or no longer) documented. In 138 cases he was demonstrably directly responsible for the judgment and penal order as presiding judge, in 63 cases as prosecutor and in another 33 cases as “investigator” indirectly.
According to the files, a total of 297 people were charged in these proceedings, 36 of whom were acquitted (or the proceedings were dropped). 70 of the accused received arrest for a maximum of six weeks, 95 a prison sentence of up to six months, 52 up to a year, 22 up to two years and 12 a higher sentence. A death sentence was handed down four times in proceedings in which Filbinger was involved, but twice in the absence of the accused, so that two death sentences remained.
In one case, Filbinger had applied to the court for the death sentence, but then took the unusual step of proposing a pardon to the “judge,” the relevant commander. It also happened: The death penalty became eight years in prison.
The other case was about the 22-year-old sailor Walter Gröger and his desertion in Norway. He was initially sentenced to eight years in prison, but the Commander-in-Chief of the Navy, Karl Dönitz, overturned the sentence and demanded the maximum sentence. At this point in the process, Filbinger came along. He applied for the death sentence and after it was imposed he wrote several letters pushing for enforcement. He probably even finally gave the order to fire the firing squad.
Little remained of Hochhuth’s allegations against Filbinger (“Hitler’s naval judge” and “terrible lawyer” who destroyed his files). And yet, in the summer of 1978, pressure built up in the German public that finally forced Filbinger to resign on August 7th – a step that he never accepted and repeatedly attacked in the 29 years up to his old age death in 2007. Even the eulogy of the then Prime Minister Günther Oettinger (CDU) caused a scandal.
So how is the Filbinger case to be assessed? Born in Mannheim in 1913, he had publicly expressed skepticism about the upheavals in Germany by the NSDAP as late as April 1933. Shortly thereafter, as a law student, he joined the National Socialist German Student Association and in 1937 also the party itself. Looking back, he himself justified this with the need to obtain scholarships.
In 1940, the man from Baden volunteered for the Navy and was trained as a naval officer until 1943. As a qualified lawyer, however, he was employed as a court-martial counselor, first in Cuxhaven, then on Sylt and finally in Norway. There he became a prisoner of war in May 1945 and remained a judge for the interned soldiers until the beginning of 1946.
After returning to his homeland in Baden, Filbinger first worked as a lawyer in Freiburg and at the same time began a political career that led him to the state cabinet in Stuttgart and to the state parliament of Baden-Württemberg. At the end of 1966 he took over the office of Prime Minister, succeeding Kurt Georg Kiesinger.
In the CDU, Filbinger stood for the Christian-conservative wing. As head of government he was pugnacious, but assertive and successful in many respects. His star began to sink when the anti-nuclear movement formed against his plan to build more nuclear power plants in the Rhine Valley. Nevertheless, in 1976 Filbinger achieved the greatest success for the Baden-Württemberg CDU up to that point with the slogan “Freedom instead of Socialism”.
Then came Hochhuth. Although there was little substance to his criticism (as was also the case with Pius XII), Filbinger fell. And quite rightly so, because he had bet on the completely wrong tactics. Publicly, he only admitted what was concretely proven to him. Even his main political competitor, the left-wing social democrat Erhard Eppler, who attested to his “pathologically clear conscience”, admitted: “Had Dr. Filbinger simply explains: ‘Yes, I was involved in something that can only be understood from the atmosphere of that time, and what I’ve been carrying around with me since then’, I would have held back completely.”
Due to his futile defense in salami style from the outset, however, Filbinger maneuvered himself into a dead end. His sentence, “What was right back then can’t be wrong today” (it actually said: “What was right back then, can’t be wrong today”), which has not quite literally entered the collective memory, was taken out of context and only then becomes reproachable; in actual context, the words were as banal as they were plainly true. But Filbinger eventually gave way to public pressure.
In the almost three decades that followed, he moved further and further to the right, which Hochhuth apparently confirmed in retrospect. Filbinger founded the Weikersheim study center as a bourgeois-conservative think tank. But the absolutely necessary sharp demarcation against right-wing radicals and right-wing extremists was omitted. A big mistake, with which Filbinger damaged his own goal of an alternative to the left-liberal Juste Milieu.
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