Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume III

Chapter XXI: Part II

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Article 12

Limited Admittance of Defense Counsel

(1) In one criminal case, several lawyers or professional representatives may not act side by side as chosen counsel for one defendant.

(2) The rules about obligatory representation by defense counsel do not apply. The presiding judge appoints a defense counsel for the whole or part of the proceedings if the difficulty of the factual or legal problems makes assistance by a defense counsel necessary, or if the defendant, in due consideration of his personality, is unable to defend himself personally.

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Berlin, 13 December 1944

The Reich Minister of Justice
DR. THIERACK

C. Organization and Structure of the German Judicial System and the Reich Ministry of Justice

I. THE POSITION AND RESPONSIBILITY OF LEADING OFFICIALS
IN THE REICH MINISTRY OF JUSTICE

EXTRACT FROM THE TESTIMONY OF DEFENDANT METTGENBERG[113]

_DIRECT EXAMINATION_

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DR. SCHILF (counsel for defendant Mettgenberg): Dr. Mettgenberg, at the Reich Ministry of Justice you last held the position of a subdepartment chief. In the course of this trial a great many things have been said about that subdepartment chief,[114] but you are the only defendant who last held that position. Therefore, would you please give the court an outline of that last position you held?

DEFENDANT METTGENBERG: Perhaps I may somewhat exceed the scope of the question and say a few words about the structure of the Reich Ministry of Justice as a whole, of which so far nothing has been said here. The entire personnel of the Reich Ministry of Justice amounted to approximately 800. Those 800 people composed three groups, the workers, the employees, and the officials. As an example for the workmen may I perhaps mention the cleaning women and the boilermen. As an example for the employees, the majority of the secretaries and typists. Officials were those who held the posts of civil servants. Conditions to fulfill the status of a civil servant were mainly of a formal nature. Within the body of civil servants there were three groups which must be distinguished--the lower grade, the intermediate grade, and the higher grade. Lower officials were, for example, those who carried the files, the chief messengers, etc. Officials of the intermediate grade were the men whose task it was to keep the registers and to draft documents which were made by the dozen. The higher grade of officials were those beginning with assessor [junior judge or prosecutor] up to the Minister himself. The scope of work for the higher grade civil servants was distributed in such a way that the younger of these civil servants were employed as so-called co-workers [Mitarbeiter] or assistants. Above the co-workers there were the Referents.[115] They were older officials who held the rank of Oberregierungsrat or ministerial counsellor [Ministerialrat].[115] Above them the next category was the subdepartment chiefs [Unterabteilungsleiter]. These subdepartment chiefs were either senior ministerial counsellors [Ministerialraete] or Ministerialdirigenten.[115] Above them there were the department chiefs [Abteilungsleiter], as a rule a ministerial director.[115] Sometimes it was a Ministerialdirigent. Above them, but only temporarily, there was an assistant under secretary [Unterstaatssekretaer]. Above him there was one or several under secretaries [Staatssekretaeren].[115] At the very top there was the Reich Minister.[115] When one keeps that survey in mind, the answer to the question which counsel put to me becomes fairly clear. The subdepartment chief was between the Referent and the department chief. His task was to take reports from the Referent on matters which were of a somewhat supernormal importance; matters which were altogether normal and clear and unambiguous, where there were no misgivings, no doubts, there the Referent made the decision. But as soon as a matter, from any point of view, assumed somewhat greater significance, he had to report on it to the chief who, in turn, had to consider as to whether he himself was competent to decide on the question. If it was of real significance, a report had to be made to a higher authority, to the department chief, to the State Secretary, and possibly to the Minister. In the absence of the department chief, the subdepartment chief had to deputize for him in his business as department chief. And the organization with us was such that every subdepartment chief for his sphere of work had to undertake that work as a deputy. In the big department IV, which has been discussed here such a great deal, there were in the end six subdepartment chiefs, each of whom had his own sphere of work. When the department chief was absent, each one of the six subdepartment chiefs had to deputize for the department chief within and for his own sphere of work. In the main, my defense counsel has already explained the matter in his opening statement, and I may therefore refer to it. As concerns myself as a subdepartment chief, I too had to deputize for the department chief when matters were concerned which belonged within my sphere of work as a subdepartment chief.

2. EXTRACTS FROM THE “BASIC INFORMATION”

A BRIEF SUMMARY OF THE COURT SYSTEM[116]

Following the practice of most continental nations, German law (based primarily on Roman law principles) is largely enacted into codes. The criminal code dates from 1871, and the code of criminal procedure from 1877.

Before Hitler’s seizure of power, the individual German states (Laender) retained their sovereignty in the administration of justice and the establishment of courts. There was, however, a Supreme Court of the entire German Reich (Reichsgericht), which sat at Leipzig.

Under the Supreme Court, there were 34 district courts of appeal (Oberlandesgerichte), established in the several states and provinces. Under the district courts of appeal were some 180 district courts (Landgerichte) and about 2,200 local courts (Amtsgerichte).

Both the Judicature Act of 1877 and the Weimar constitution (article 102) provided that the courts and judges should be independent. The general administration of the courts, however, was controlled by the Justice Ministries--the Reich Supreme Court by the Reich Ministry of Justice and the intermediate and lower courts by the Justice Ministries of the individual states. The Reich and state prosecutors were appointed and controlled by the respective Reich and state ministries.

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_The regular courts._ Original jurisdiction, both in civil and criminal matters, was divided between the local courts and the district courts. The local courts served for civil cases where the claim did not exceed 1500 reichsmarks, and criminal cases where the crime was punishable with penal servitude up to 5 years. Cases where these limits were exceeded were brought originally in the district courts.

The appellate procedure was much simplified as a war measure in 1939. Criminal cases heard in the local courts could thereafter be appealed to the district courts, and criminal cases heard originally in the district courts could be appealed directly to the Reich Supreme Court. Civil cases from the local courts could be taken on appeal directly to the district courts of appeal; civil cases from the district courts could be appealed to the district courts of appeal and thereafter to the Reich Supreme Court.

Under the impact of the war and the resulting shortage of judges and judicial personnel, a decree in September 1944 further curtailed the right of appeal and entirely eliminated the judicial functions of the district courts of appeal.

The Reich Supreme Court was the court of first and last instance for cases of treason against the Reich but, as set forth below, in 1934 this function was absorbed by the People’s Court.

_Extraordinary courts._ Immediately after the seizure of power, by a decree of 21 March 1933,[117] Special Courts (Sondergerichte) were established in order to combat the activities of opponents of the new regime. One Special Court was established within the area of each district court of appeal. Each court was composed of a president and two associates, drawn from the professional judges of the district. The Special Courts were given jurisdiction over various crimes, including inciting to disobedience of governmental orders, crimes in the nature of sabotage, and acts “contrary to the public welfare.” There was no appeal from decisions of the Special Courts.

The following year, the People’s Court (Volksgerichtshof) was established by the law of 24 April 1934.[118] The People’s Court tried cases of treason, which were withdrawn from the jurisdiction of the Reich Supreme Court. During the following years, the jurisdiction of the People’s Court was vastly increased by the expanded concept of treason.

The People’s Court sat in six divisions, or “senates”; later on, a “special senate” was created to retry cases where, in the judgment of the Chief Public Prosecutor of the Reich, an insufficient punishment had been imposed. Ordinarily a senate of the People’s Court was composed of five judges, of whom two were professional judges and the other three were laymen specially appointed from the SS, the armed forces, and the Nazi Party hierarchy. There was no appeal from decisions of the People’s Court.

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Other special tribunals established under the third Reich included the “hereditary health courts”[119] (Erbgesundheitsgerichte) and in 1945, emergency civilian “courts martial”[120] (Standgerichte) in those parts of Germany which were near the front lines.

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REGULAR AND EXTRAORDINARY COURTS OF THE THIRD REICH

CHART SHOWING POSITIONS OF THE DEFENDANTS AND OTHERS IN THE REICH
MINISTRY OF JUSTICE AND THE GERMAN JUDICIAL SYSTEM UNDER HITLER[121]

3. SPECIAL COURTS[122]

PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112

DECREE OF THE REICH GOVERNMENT, 21 MARCH 1933,
ON THE FORMATION OF SPECIAL COURTS

1933 REICHSGESETZBLATT, PART I, PAGE 136

Pursuant to chapter II of part six of the third decree of the Reich President to safeguard economy and finances and to combat political excesses, of 6 October 1931, (Reichsgesetzblatt I, pp. 537, 565) the following is decreed:

Article 1

(1) A Special Court will be created for the district of each court of appeal.

(2) The Special Courts are courts of the States.

(3) The Legal Administration of the respective States determines the seats of the Special Courts.

Article 2

The Special Courts have jurisdiction over crimes and offenses enumerated in the decree of the Reich President for the protection of people and State of 28 February 1933 (Reichsgesetzblatt I, p. 83) and in the decree concerning the defense against insidious attacks against the government of the national revolution of 21 March 1933 (Reichsgesetzblatt I, p. 135), provided that such crimes and offenses are not within the jurisdiction of the Reich Supreme Court or the courts of appeal.

Article 3

(1) The Special Courts shall also be competent if a crime or offense within their jurisdiction constitutes at the same time another punishable act.

(2) If another punishable act is factually connected with a crime or offense within the jurisdiction of the Special Courts, the proceedings against the perpetrators and participants of the other punishable act may be brought before the Special Court by way of combination.

(3) The extension of jurisdiction according to paragraphs 1 and 2 does not apply to matters within the jurisdiction of the Reich Supreme Court or the courts of appeal.

Article 4

(1) The Special Courts are composed of a president and two associate judges. A deputy has to be appointed for each member in case of his absence.

(2) The members and their deputies must be permanently appointed judges of the district for which the Special Court is established.

(3) The members will be appointed and the distribution of their tasks undertaken by the presidency of the district court in the district in which the Special Court is located.

Article 5

The prosecutors will be appointed by the legal administration of the States from those prosecution officials who are legally qualified for the office of a judge.

Article 6

The regulations of the code of criminal procedure and of the judicature act will apply correspondingly to the proceedings, provided nothing else has been determined.

Article 7

Proceedings may be instituted also before the Special Court in the district in which the defendant was caught or where he is in custody. The release of the defendant does not affect this jurisdiction once it has been established.

Article 8

Applications for disqualification of a judge will be decided upon by the Special Court to which the respective judge is assigned. For this decision the respective judge is replaced by his deputy. The deputy cannot be disqualified.

Article 9

(1) No hearings relating to the warrant of arrest will be held.

(2) The decisions concerning arrest pending trial are made by the president of the Special Court. The president of the Special Court is, apart from the local court, also competent for those decisions, which, according to articles 125, 128 of the code of criminal procedure, fall under the jurisdiction of the local court. Complaints against the decisions of the president and the local court will be decided upon by the Special Court.

(3) The president of the Special Court can delegate the interrogation of the defendant and the decision about the warrant of arrest to an associate judge. The same applies to the decisions which are to be made according to articles 116 and 148 of the code of criminal procedure.

Article 10

For the defendant who has not yet chosen counsel, counsel has to be appointed at the time when the date for the trial is fixed.

Article 11

A preliminary court investigation will not be held. If a preliminary court investigation is pending at the time this decree becomes effective, the records are to be transferred in due time to the prosecutor of the Special Court.

Article 12

(1) The indictment must contain a summary of the results of the investigations.

(2) The order of the court to open the trial can be dispensed with. Instead of the request of the prosecution for the order to open the trial, there will be the request of the prosecution to fix a date for the trial. After receiving the indictment the president will set a date for the trial, if in his opinion the legal prerequisites for it are fulfilled. Otherwise he will put the decision to the court. When setting the date for the trial, the president will also decide upon the warrant of arrest or the continuation of the arrest pending trial.

(3) The legal administration of the State can decree that the clerk of the Special Court will issue the summons for the trial and produce those objects which are to serve as evidence (art. 214, par. 1 of the code of criminal procedure). The legal administration of the State can delegate this power.

(4) The term of the summons (art. 217 of the code of criminal procedure) is 3 days. It can be shortened to 24 hours.

(5) The effects which the code of criminal procedure connects with the opening of the trial take place with the filing of the indictment. The effects, which the code of criminal procedure connects with the reading of the order of the court to open the trial, take place at the moment when the interrogation of the defendant as to the facts of the case begins.

Article 13

The Special Court can refuse any offer of evidence, if the court has come to the conviction that the evidence is not necessary for clearing up the case.

Article 14

The Special Court has to pass sentence even if the trial results in showing the act, of which the defendant is accused, as not being under the jurisdiction of the Special Court. This does not apply if the act constitutes a crime or offense under the jurisdiction of the Reich Supreme Court or the courts of appeal; in this case the Special Court has to proceed according to article 270, paragraphs 1 and 2 of the code of criminal procedure.

Article 15

The results of the interrogations (art. 273, par. 2 of the code of criminal procedure) need not be incorporated in the record of the trial.

Article 16

(1) There is no legal appeal against decisions of the Special Courts.

(2) Applications for a reopening of the case are to be decided upon by the penal chamber of the district court. The reopening of the case in favor of the defendant will also take place if there are circumstances which point to the necessity of reexamining the case in the ordinary procedure. The stipulation of article 363 of the code of criminal procedure remains unaffected. If the application for the reopening of the case is justified, the trial will be ordered to take place before the competent ordinary court.

Article 17

Proceedings initiated on a punishable act within the jurisdiction of the Special Courts and pending at the date this decree becomes effective, will be continued according to the general rules if the trial has already started. Otherwise they will be transferred to the procedure regulated in this decree.

Article 18

(1) When the activities of the Special Courts end, the pending cases will be transferred to the ordinary procedure; the indictment filed according to the stipulations of this decree will become ineffective.

(2) If the trial has once started before the Special Court, it will be carried on according to the stipulations of this decree.

(3) The administration of punishment will be transferred to the authority for the administration of punishment in whose district the Special Court had its seat; the court decisions occurring in the course of the administration of punishment will be made by the penal chamber of the district court without hearings being held.

Article 19

This decree becomes effective on the second day after its promulgation.

Berlin, 21 March 1933

The Reich Chancellor
ADOLF HITLER

For the Reich Minister of Justice
The Vice Chancellor
VON PAPEN

PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112

DECREE OF 21 FEBRUARY 1940 CONCERNING JURISDICTION OF
CRIMINAL COURTS, SPECIAL COURTS, AND ADDITIONAL
PROVISIONS OF CRIMINAL PROCEDURE

1940 REICHSGESETZBLATT, PART I, PAGE 405

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Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume IIIChapter XXI: Part II

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