Chapter XVI: Section I: Freer Position of the Judge

1. Creation of law by analogous application of the penal laws.

(a) As articles 170a and 267a, the following stipulations will be inserted in the Code of Criminal Procedure:

Article 170a

If an act deserves punishment according to the sound sentiment of the people, but is not declared punishable in the law, the prosecution will examine whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by analogous application of that penal law. (Article 2 of the Penal Code).

Article 267a

If the trial shows that the defendant has committed an act which deserves punishment according to the sound sentiment of the people, but is not declared punishable by the law, the court will examine whether the underlying principle of a penal law applies to the act and whether justice can be helped to triumph by analogous application of that penal law (Article 2 of the Penal Code).

Article 265, paragraph 1, applies accordingly.

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4. Removal of one-sided limitations of the courts deciding on legal appeals. The code of criminal procedure is amended as follows:

(a) Article 331 is amended as follows:

Article 331

Even if the judgment has been contested only by the defendant or his legal representative or by the prosecution in his favor, it can be changed against the interests of the defendant.

(b) Article 358, paragraph 2, is amended as follows:

Even if the judgment has been contested only by the defendant or his legal representative or by the prosecution in his favor, it can be changed against the interests of the defendant.

(c) Article 373, paragraph 2, is amended as follows:

Even if resumption of the proceedings has been applied for only by the defendant or his legal representative or by the prosecution in his favor, the sentence can be changed against the interest of the defendant.

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Section II

Exemption of the Reich Supreme Court from being bound by precedents.

The Reich Supreme Court as the highest German tribunal must consider it its duty to effect an interpretation of the law which takes into account the change of ideology and of legal concepts which the new state has brought about. In order to enable it to accomplish this task without having to show consideration for the jurisdiction of the past brought about by other ideologies and other legal concepts, it is ruled as follows:

When a decision is made on a legal question, the Reich Supreme Court can deviate from a decision laid down before this law came into force.

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