Chapter XXIV: Part VI: Final Regulations

* * * * * * *

Article 40

Validity in the Protectorate

This decree is also valid for the German courts in the Protectorate of Bohemia and Moravia.

* * * * * * *

Berlin, 21 February 1940

The Plenipotentiary for the Administration of the Reich
FRICK

PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112

LETTER FROM UNDER SECRETARY FREISLER TO PRESIDENTS AND PUBLIC PROSECUTORS AT COURTS OF APPEAL, 26 SEPTEMBER 1941, CONCERNING HANDLING OF CERTAIN WARTIME CRIMES BY SPECIAL COURTS TO SPEED UP PROCEEDINGS

The Reich Minister of Justice
3234-III a4 1187

Berlin W 8, 26 September 1941
Wilhelmstrasse 65
Telephone: 11 00 44,
long distance: 11 65 16

To the Presidents and Public Prosecutors at the Courts of Appeal
and for the information of--

_a._ The President of the Reich Supreme Court

_b._ The Chief Reich Prosecutor of the Reich Supreme Court concerning prosecution of wartime criminality--

Wartime crimes, particularly those involving the decree against public enemies, the war economy decree, the decree against violent criminals, and the decree against “Black Listening” [Listening to prohibited broadcasts][127], should, as a matter of principle, be indicted before Special Courts, in order to speed up proceedings as much as possible.

In the event that, because of the great number of proceedings, the necessary rapid handling of such cases should not prove possible, I wish to be informed promptly, in order that I may have new Special Courts established or new senates added to already existing Special Courts. The overload of work on a Special Court should never result in the handing over of cases to other courts.

A Special Court is, as a rule, to be considered overloaded if a monthly average of more than 40 new indictments has been filed with it.

Acting for the Minister
[Signed] DR. FREISLER

Certified:

[Signed] BENICKE
Chief Clerk, Ministry of Justice Executive Office

TRANSLATION OF DOCUMENT NG-478
PROSECUTION EXHIBIT 61

LETTER FROM THIERACK, REICH MINISTER OF JUSTICE, TO PRESIDENTS OF COURTS OF APPEAL, 5 JULY 1943, DISCUSSING DEVELOPMENT AND EFFECTIVENESS OF SPECIAL COURTS AND PROPOSING LIMITATIONS ON THEIR JURISDICTION

The Reich Minister of Justice
3234-IVa 4 877/43

Berlin W 8, 5 July 1943
Wilhelmstrasse 65
Telephone:
Local calls 11 00 44
Long distance 11 65 16

[Stamp] Court of Appeal Cologne 26 July 1943

To: The Presidents of Courts of Appeal and the Generalstaatsanwaelte

Subject: Relief of the Special Courts

The following has been discussed here:

Special Courts were established by the decree of 21 March 1933[128] as a keen weapon for the conviction of political criminals. Their jurisdiction was initially limited to crimes and delicts as defined by the decree of the Reich President concerning the protection of people and State[129] as well as in the Heimtueckegesetz.[130] By the decree on the extended jurisdiction of the Special Courts as of December 1934 and through a series of subsequent laws the functions of the Special Courts were steadily increased. The decree of 20 November 1938 then made it possible to bring before the Special Court such cases in which immediate action by this court seemed necessary in view of the gravity and the wickedness of the act or of the excitement aroused in public. After the outbreak of the war, by the decree of 21 February 1940 concerning court jurisdiction there was established exclusive jurisdiction of the Special Court for a series of offenses, in particular for crimes and transgressions covered by the war economy decree. _Thus, the amount of work accruing to the Special Courts increased extraordinarily during the last years, especially during the war. Practically all somewhat important criminal cases are now under the jurisdiction of the Special Court._

This increase in work caused the establishment of a great number of new Special Courts, the enlargement of existing Special Courts and the formation of new Special Court sections.

I

This development is commented upon as follows:

1. Sentences by the Special Court in the first years after its establishment had a strongly intimidating effect. Prompt and severe punishment by the Special Court was dreaded. Moreover it was considered particularly shameful to have been sentenced by the Special Court. Since the focus of the entire system of criminal justice shifted in the meantime from the ordinary courts (local courts, criminal sections of district courts) to the Special Courts, a certain watering down of the original conception of the Special Courts could not be entirely avoided. Today the Special Courts basically are to be considered merely as special divisions of the criminal courts, their verdicts no longer having that full intimidating effect they had before. The only essential difference from ordinary criminal jurisdiction is left in the fact that there is no legal appeal remedy against verdicts of Special Courts. The standing of Special Courts suffered from their having to deal with comparatively small offenses such as small scale illegal slaughtering, unauthorized fishing by a Pole, and the like.

2. The concentration of jurisdiction in political and other most important criminal cases led at first to an essentially homogenous and coherent jurisdiction. The establishment of new chambers in the Special Courts and the increase of these courts tends to endanger this homogenousness. Since the verdicts of Special Courts were not regularly but rather casually published in the press, and since equalizing measures were taken only recently, the jurisdiction of the Special Courts, even of the individual chambers of one Special Court, developed partly in a very different manner. The first chamber of one Special Court, for instance, is reported to have punished the theft of some items from a collection of textiles as the deed of a people’s enemy with 4 years of penitentiary, while the second chamber of the same Special Court in a very similar case imposed a sentence of only 8 months.

3. The strong increase of the number of Special Courts had brought about that, due to the scarcity of apt candidates, the selection of judges officiating in these courts could no longer be carried through as carefully as it was done in the first years. While, in principle, only professionally and in particular politically highly qualified judges were supposed to work in Special Courts, the increase of positions made it necessary to draft judges frequently from criminal courts and civil sections who hardly were up to the required standards. Quite a number of judges in the Special Court are not even members of the Party.

4. Due to the development of the Special Courts, the ordinary criminal courts, especially the criminal court sections, have undergone an extreme decline in importance. While Special Courts are overburdened with work, some criminal court sections have hardly as much to do as they had in peacetime. Furthermore, the latter now having only to deal with trifling transgressions, they are gradually becoming less familiar with severe cases. It is reported that the prosecution now shows a tendency to bring many cases before the Special Courts which actually do not belong to their jurisdiction. On the one hand this is due to the prosecutors having greater confidence in the Special Courts, on the other to the fact that thus a delay of the execution of the sentence through appeal is made impossible.

5. The permanent overburdening of the Special Courts had led in some districts to a gradual vanishing of their particular advantage, their rapid sentencing. The Special Courts are said to proceed with such delay that at times the prison term imposed by the court is already absorbed by the custody preceding trial.

II

It may be stressed that said development of the Special Court jurisdiction is undesirable. In the interest of a rapid and severe punishment of the really outstanding crimes and transgressions it should be attempted to maintain the character of the Special Courts as “Courts Martial of the Home Front” [Standgerichte der Inneren Front].

1. In regard to organization, the following is pointed out:

_a._ At some Special Courts several chambers were established. Experiences with several chambers are varying, but in general not favorable. If the chambers are proceeding under different presidency and with different personnel, several chambers are actually equal to several Special Courts. Consequently it is possible that the uniformity of jurisdiction disappears even within one Special Court. Not in all places and instances the ability to preserve a uniform jurisdiction within the Special Court through an exchange of ideas and experiences and through an exchange of associate judges among the different chambers is to be found.

_b._ Even greater is the danger of a not uniform jurisdiction if new Special Courts with competence in a limited district are established. It is yet considerably harder to bring about an exchange of ideas and experiences and exchange of associate judges among different Special Courts than among several divisions of one and the same Special Court. Therefore, no advantage can be seen in the establishment of a whole series of new Special Courts as it has been noticed during the last years.

_c._ Reinforcement of the existing Special Courts by assigning a number of additional associate judges is considered to be the most suitable method. The uniformity of the direction of the Special Court is being secured by the presiding judge, while the most experienced associate judge should be made his deputy.

This strengthening of the Special Courts will in any case secure the uniformity of jurisdiction and will make possible a more extensive performance than in separated Special Courts. This strengthening of course is limited by the working capacity of the president and by his ability to exert influence. The president has to bear both in the preparation and in the conduct of the trial, the bulk of physical and intellectual work, a circumstance which sets a natural limit to this form of strengthening of the Special Courts.

2. Furthermore it is stressed that the Special Courts’ return to their proper task cannot be seen in organizational measures, but that a sensible relief of the Special Courts from inappropriate criminal cases must be accomplished.

_a._ A means thereto is already at hand now in article 24 of the decree concerning court competence. According to it, Special Courts are entitled to transfer trivial cases to the local or the criminal courts. Apparently practice is not uniform in this respect. While some Special Courts, in view of their excessive pressure of work, have already made an extended use of the opportunity to transfer cases to the regular courts, other Special Courts appear to have entirely renounced such a transfer, carrying through themselves even unimportant criminal cases. In general they base this on the bad experiences they made when they transferred cases to the regular jurisdiction.

In spite of that, transfers according to article 24 ought to be practised to a far greater extent. Through the sentences as suggested by the prosecutions, through judges’ letters and through directing of the criminal procedure, care has been taken that local and criminal courts are being integrated into the framework of Special Court jurisdiction. Thus, for instance, minor cases of illegal slaughtering, contact with prisoners of war, etc., could be transferred. If the penal courts were continuously entrusted with these matters, then they would also develop a uniform experience, which as yet is not possible. As a further means of relief, according to the present state of legislation, a directive to the public prosecutors is suggested with the purpose that all minor cases should be prosecuted before the penal court and not before the Special Court. Only political and really important cases arousing public excitement should be reserved for the Special Courts.

_b._ Hitherto the possibility of letting the president (one single judge) take decisions in the Special Court has not been sufficiently made use of. In simple typical cases it is not necessary to call in assessors and to mobilize the whole apparatus of the Special Courts.

Kindly let me have your opinion of these arguments before 1 August 1943. Will you kindly especially express your opinion as regards the advantages and the expediency of the three possibilities--criminal chamber system, central Special Court with several deputy presidents, and separate regional Special Courts, as well as about the question of the restriction of competence.

[Seal of Ministry of Justice] DR. THIERACK

Certified:

[Illegible stamped signature]

Clerk

4. PEOPLE’S COURT[131]

PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112

EXTRACT FROM LAW OF 24 APRIL 1934 AMENDING REGULATIONS
OF PENAL LAW AND CRIMINAL PROCEDURE

1934 REICHSGESETZBLATT, PART I, PAGE 341

* * * * * * *