Chapter LXIX: Section 90: (f) of the Penal Code, as enacted on 24 April 1934, provided (1)

“Whoever publicly, or as a German staying abroad, causes serious
danger to the reputation of the German nation by an untrue or
grossly inaccurate statement of a factual nature, shall be
punished by confinement in a penitentiary.”

The act was amended on 20 September 1944 as follows:

“In especially serious cases a German may be punished by
death.”[601]

By the act of 28 June 1935 it was provided:

“Whoever publicly profanes the German National Socialist Labor
Party, its subdivisions, symbols, standards, and banners, its
insignia or decorations, or maliciously and with premeditation
exposes them to contempt shall be punished by imprisonment.

“The offense shall be prosecuted only upon order of the Reich
Minister of Justice who shall issue such order in agreement with
the Fuehrer’s deputy.”[602]

By the law of 28 June 1935 it was provided:

“If the main proceedings show that the defendant committed an
act which deserves punishment according to the common sense of
the people but which is not declared punishable by the law, then
the court must investigate whether the underlying principle of a
penal law applies to this act and whether justice can be helped
to triumph by the proper application of this penal law. (Article
2 of the Penal Code.)”[603]

A decree of 1 December 1936 provides in part as follows:

“Section 1. (1) A German citizen who consciously and
unscrupulously, for his own gain or for other low motives,
contrary to legal provisions smuggles property abroad or leaves
property abroad and thus inflicts serious damage to German
economy is to be punished by death. His property will be
confiscated. The perpetrator is also punishable, if he commits
the misdeed abroad.”[604]

On 17 August 1938, more than a year before the invasion of Poland, a decree was promulgated against undermining German military efficiency. It provided in part:

“Section 5. (1) The following shall be guilty of undermining
German military efficiency, and shall be punished by death:

“1. Whoever openly solicits or incites others to evade the
fulfillment of compulsory military service in the German or an
allied armed force, or otherwise openly seeks to paralyze or
undermine the will of the German people or an allied nation to
self-assertion by bearing arms; * * *.”[605]

Under this law the death sentence was mandatory.

By the decree of 1 September 1939 the ears of the German people were stopped lest they hear the truth:

“Section 1.--Deliberate listening to foreign stations is
prohibited. Violations are punishable by hard labor. In less
severe cases there can be a sentence of imprisonment. The radio
receivers used will be confiscated.

“Section 2.--Whoever deliberately spreads news from foreign
radio stations which is designed to undermine German military
efficiency will be punished by hard labor and in particularly
severe cases by death.”[606]

It is important to note that discretion as to penalty was vested in the court.

On 5 September 1939, by the Decree Against Public Enemies, it was provided that looting in liberated territory may be punished by hanging. The following additional provisions are of importance because of the arbitrary manner in which the instrument was construed and applied by the courts. The provisions are as follows:

“Section 2.--Whoever commits a crime or offense against life,
limb or property, taking advantage of air raid protection
measures, is punishable by hard labor of up to 15 years or for
life, and in particularly severe cases punishable by death.

“Section 3.--Whoever commits arson or any other crime of public
danger, thereby undermining German military efficiency, will be
punished by death.

“Section 4.--Whoever commits a criminal act exploiting the
extraordinary conditions caused by war is punishable beyond the
regular punishment limits with hard labor of up to 15 years
or for life, or is punishable by death if the sound common
sense of the people requires it on account of the crime being
particularly despicable.”[607]

On 25 November 1939 the death penalty was authorized as punishment for intentionally or negligently causing damage to war materials and the like, if it endangers the fighting power of the German armed forces. The death penalty was also authorized in case of anyone who “disturbs or imperils” the ordinary function of an enterprise essential to the defense of the Reich or to the supply of the population.[608]

On 5 December 1939 the death penalty was authorized for various crimes of violence and it was provided that “this decree is also applicable to crimes committed before it became valid”.

On 4 September 1941 the Criminal Code was supplemented and changed to provide the death penalty for dangerous habitual criminals and sex criminals “if necessitated for the protection of the national community or by the desire for just expiation”. The decree was signed by Adolf Hitler and by the defendant Dr. Schlegelberger in charge of the Reich Ministry of Justice.

By the decree of 5 May 1944, the judges were substantially freed from all restrictions as to the penalty to be invoked in criminal cases. That decree reads as follows:

“With regard to all offenders who are guilty of causing serious
prejudice or seriously endangering the conduct of war, or the
security of the Reich, through an intentional criminal act, a
penalty may be imposed in excess of the regular penal limits
up to the statutory maximum for a given type of punishment, or
hard labor for a term or for life, or death, if the regular
statutory maximum limits are insufficient for expiation of the
act according to the sentiment of the people. The same shall
also apply to all offenses committed by negligence by which
one made himself guilty of a particularly grave prejudice or a
particularly serious danger to the conduct of war, or to the
security of the Reich.”[609]

On 20 August 1942 Hitler issued the famous decree which marks the culmination of his systematic campaign to change the German judicial system into an instrumentality of the NSDAP. The decree was as follows:

“A strong administration of justice is necessary for the
fulfillment of the tasks of the great German Reich. Therefore,
I commission and empower the Reich Minister of Justice to
establish a National Socialist Administration of Justice and to
take all necessary measures in accordance with my directives
and instructions made in agreement with the Reich Minister and
Chief of the Reich Chancellery and the Leader of the Party
Chancellery. He can hereby deviate from any existing law.”[610]

The statutes which we have reviewed were merely steps in the process of increased severity of the criminal law and in the development of a loose concept concerning the definition of crime. The latter concept was especially evident in the statutes concerning the “sound sentiment of the people”, crime by analogy, and undermining the military efficiency of the nation. In place of the control of law there was substituted the control of National Socialist ideology as a guide to judicial action.

The Draconic laws to which we have referred were upon their face, of general applicability. The discriminations on political, racial, and religious grounds are to be found not in the text, but in the application of the text.

But the Nazis were not content with statutes of a nondiscriminatory nature even in view of the discriminatory manner in which they were enforced. Coincidentally with the development of these laws and decrees there arose another body of substantive law which expressly discriminated against minority groups both within and without the Reich, and which formed the basis for racial, religious, and political persecution on a vast scale. On 7 April 1933, a decree by the Reich government provided in part that--

“Article 2. Persons who, according to the Law for the
Restoration of the Professional Civil Service of 7 April
1933,[611] are of non-Aryan descent, may be refused permission
to practice law, even if there exists none of the reasons
enumerated in the Regulations for Lawyers. The same rule applies
in cases, as where a lawyer described in section 1, clause 2,
wishes to be admitted to another court. * * *”

“Article 3. Persons who are active in the Communistic sense are
excluded from the admission to the bar. Admissions already given
have to be revoked.”[612]

The act was implemented by the power of injunction. The fact that the license to practice law had been canceled was also stated as a ground for the cancellation of employment contracts and office leases.

On 15 September 1935, the Reichstag enacted the “Law for the Protection of German Blood and Honor.” We quote--

“Article 1. (1) Marriages of Jews and citizens of German or
related blood are prohibited. Marriages which are concluded
nevertheless, are void even if they were concluded abroad in
order to circumvent this law.

“(2) Only the district attorney can sue for nullification of
marriage.

“Article 2. Sexual intercourse (except in marriage) between
Jews and German nationals of German or German-related blood is
forbidden.”

By other laws, as amended from time to time, non-Aryans were almost completely expelled from public service. The number of non-Aryans in schools and higher institutions of learning was restricted.[613] Jews were excluded from the homestead law concerning peasantry.[614] Jewish religious communities were regulated.[615] Jews were excluded from certain industrial enterprises[616] and their rights as tenants were restricted.[617]

By the act of 2 November 1942 it was provided--

“Section 1. A Jew who has his domicile abroad cannot be a
citizen of the Protectorate of Bohemia and Moravia. Domicile
abroad is established if a Jew was abroad under circumstances
which indicated that his tenure there is not of a temporary
nature.

“Section 2. A Jew loses his citizenship status in the
Protectorate if--

“(a) As of the effective date of this decree, he has an
established domicile abroad;

“(b) At a date subsequent to the effective date of this decree,
he establishes a domicile abroad.”

And by act of 25 November 1941 it was provided--

“Section 3. (1) The property of the Jew who is losing his
nationality under this amendment shall be forfeited for the
benefit of the Reich at the moment he loses his nationality. The
Reich further confiscates the property of Jews who are stateless
at the moment this amendment becomes effective, and who were
last of German nationality, if they have or take up their
regular residence abroad.

(2) The property thus forfeited shall serve the furthering of
all purposes in connection with the solution of the Jewish
question.

* * * * * * *

“Section 8. (1) It is for the chief of the Security Police and
the SD (of Reich Leader SS) to decide whether the conditions for
confiscation of property are given.

(2) The administration and liquidation of the forfeited property
is up to the Chief of the Regional Finance Office, Berlin.”[618]

The decree of 4 December 1941 “concerning the organization and criminal jurisdiction against Poles and Jews in the Incorporated Eastern Territories”,[619] marks perhaps the extreme limit to which the Nazi government carried its statutory and decretal persecution of racial and religious minorities, but it also introduces another element of great importance. We refer to the extension of German laws to occupied territory, to purportedly annexed territory, and to territory of the so-called protectorates. The decree provides--

“(1) Poles and Jews in the Incorporated Eastern Territories
are to conduct themselves in conformity with the German laws
and with the regulations introduced for them by the German
authorities. They are to abstain from any conduct liable to
prejudice the sovereignty of the German Reich or the prestige of
the German people.

“(2) The death penalty shall be imposed on any Pole or Jew if he
commits an act of violence against a German on account of his
being of German blood.

“(3) A Pole or Jew shall be sentenced to death, or in less
serious cases to imprisonment, if he manifests anti-German
sentiments by malicious activities or incitement, particularly
by making anti-German utterances, or by removing or defacing
official notices of German authorities or offices, or if he,
by his conduct, lowers or prejudices the prestige or the well
being of the German Reich or the German people.

“(4) The death penalty, or in less serious cases imprisonment,
shall be imposed on any Jew or Pole:

* * * * * * *

“3. If he urges or incites to disobedience to any decree or
regulation issued by the German authorities;

“4. If he conspires to commit an act punishable under paragraphs
(2), (3) and (4), subsections 1 to 3, _or if he seriously
contemplates the carrying out of such an act_, or if he
offers himself to commit such an act, or accepts such an offer,
or if he obtains credible information of such act, or of the
intention of committing it, and fails to notify the authorities
or any person threatened thereby at a time when danger can still
be averted. [Emphasis added.]

“II. Punishment shall also be imposed on Poles or Jews if they
act contrary to German criminal law or commit any act for which
they deserve punishment in accordance with the fundamental
principles of German criminal law and in view of the interests
of the State in the Incorporated Eastern Territories.

“III. * * * (2) The death sentence shall be imposed in all cases
where it is prescribed by the law. Moreover, in these cases
where the law does not provide for the death sentence, it may
and shall be imposed if the offense points to particularly grave
for other reasons; the death sentence may also be passed upon
juvenile offenders.

* * * * * * *

“XIV. (1) The provisions contained in sections I-IV of this
decree apply also to those Poles and Jews who on 1 September
1939 were domiciled or had their residence within the territory
of the former Polish State, and who committed criminal offenses
in any part of the German Reich other than the Incorporated
Eastern Territories. * * *”

It will be observed that the title of the foregoing act refers to “Poles and Jews in the Incorporated Eastern Territories”, but Article XIV makes the decree also applicable to acts by Poles and Jews within any part of the German Reich, if on 1 September 1939 they were domiciled within the former Polish State. This section was repeatedly employed by the courts in the prosecution of Poles.

There was promulgated a thirteenth regulation under the Reich citizenship law which illustrates the increasing severity by means of which the government was attempting to reach a “solution of the Jewish problem” under the impulsion of the progressively adverse military situation. This regulation, under date of 1 July 1943, provides:

“Article 1. (1) Criminal actions committed by Jews shall be
punished by the police.

“(2) The provision of the Polish penal laws of 4 December 1941
(RGBl. I, p. 759) shall no longer apply to Jews.

“Article 2. (1) The property of a Jew shall be confiscated by
the Reich after his death.

* * * * * * *

“Article 3. The Reich Minister of the Interior with the
concurrence of the participating higher authorities of the Reich
shall issue the legal and administrative provisions for the
administration and enforcement of this regulation. In doing so
he shall determine to what extent the provisions shall apply to
Jewish nationals of foreign countries.”

By Article 4 it was provided that in the Protectorate of Bohemia and Moravia the regulation shall apply where German administration and German courts have jurisdiction. (1943 RGBl. I, p. 372.)

Not only did the Nazis enact special discriminatory laws against Poles and Jews and political minorities; they also enacted discriminatory laws in favor of members of the Party. By the decree of 17 October 1939, it was provided that “for the area of the Greater German Reich, special jurisdiction in penal matters will be established for--

“1. Professional members of the Reich leadership of the SS.

“2. Professional members of the staffs of those Higher SS and
Police Chiefs who possess the authority of issuing orders in
those units which have been specially designated under numbers 3
to 6 below:

“3. Members of the SS units for special purposes;

“4. Members of the SS Death Head units (including their
reinforcements);

“5. Members of the SS Junker schools;

“6. Members of police units for special purposes.”

On 12 March 1938, the German Army invaded Austria. The methods employed “were those of an aggressor.”[620] On the next day Austria was incorporated in the German Reich. As a result of the Munich pact of 29 September 1938, and of threatened invasion, Czechoslovakia was compelled to cede the Sudetenland to Germany,[621] and on 16 March 1939, Bohemia and Moravia were incorporated in the Reich as a protectorate. On 1 September 1939, Poland was invaded and thereafter occupied and, later on, Germany, by military force, occupied all or portions of Denmark, Norway, Belgium, the Netherlands, Luxembourg, Yugoslavia, Greece, and Russia. These occupations and annexations furnished the motive for an extension into many areas outside the old Reich of the draconic and discriminatory German laws which had been put in force within the old Reich. By the act of 14 April 1939, it was provided:

“Article II, section 6 (2). Persons who are not German nationals
are subject to German jurisdiction for offenses--

“(a) to which German criminal law applies,

“(b) if they are prosecuted under a private action provided the
action has been brought by a German national.

* * * * * * *

“Section 7. German jurisdiction in the Protectorate of Bohemia
and Moravia excludes jurisdiction by the courts of the
Protectorate unless otherwise provided.”

The decree of 5 September 1939 against public enemies, _supra_, was made “applicable in the Protectorate of Bohemia and Moravia and also for those persons who are not German citizens.”

By a decree of 25 November 1939 concerning damage to war material, it is provided in part:

“Section 2. Whoever disturbs or imperils the ordinary function
of an enterprise essential to the defense of the Reich or to
the supply of the population in that he made a thing serving
the enterprise completely or partially unusable or put it out
of commission, shall be punished by hard labor or in especially
serious cases by death.

* * * * * * *

“Section 6. In the Protectorate of Bohemia and Moravia the
provisions of sections 1, 2, * * * and 5 of this decree are
valid also for persons who are not nationals of the German
state.”

The “decree on the extension of the application of criminal law of 6 May 1940” provided in part:

[Article I, section 4] “German criminal law will be applied
to the following crimes committed by a foreigner abroad,
independently of the laws of the place of commitment:

“1. Crimes committed while holding a German governmental office,
as a German soldier or as member of the Reich Labor Service
(Reichsarbeitsdienst) or committed against a holder of a German
office of the State or the Party, against a German soldier or a
member of the Reich Labor Service, while on duty or relating to
his duty;

“2. Actions constituting treason or high treason against
Germany; * * *.”

* * * * * * *

[Article II] “Paragraph 153. * * * A crime committed by a
foreigner abroad will be prosecuted by the public prosecutor
only if so demanded by the Reich Ministry of Justice. The
public prosecutor may abstain from the prosecution of a crime
if the same crime has already been punished abroad and if the
punishment has been carried out and the sentence to be expected
in Germany would, after deducting the time served abroad, not be
heavy.”

The act of 25 November 1941, _supra_, concerning the confiscation of Jewish property was made applicable in the Protectorate of Bohemia and Moravia and in the Incorporated Eastern Territories.[622] Of greatest significance in this category was the law against Poles and Jews already cited in another connection. The thirteenth regulation under the Reich Citizenship Law of 1 July 1943, _supra_, was also made applicable within the Protectorate of Bohemia and Moravia “where German administration and German courts have jurisdiction”. It was also made applicable to Jews “who are citizens of the Protectorate”. (Sec. 4.)

Thus far we have taken note of the substantive criminal law and its extension to occupied and annexed territories, but these laws were not self-executing. For the accomplishment of the ends of aggressive war, the elimination of political opposition and the extermination of Jews in all of Europe, it was deemed necessary to harness the Ministry of Justice and the entire court system for the enforcement of the penal laws in accordance with National Socialist ideology.

By decree of 21 March 1933 Special Courts were established within the district of every court of appeal. Their jurisdiction was rapidly extended. It included the trial of cases arising under the decree relating to the defense against insidious attacks against the government of the national revolution.

The decree of 21 March 1933 provided in part:

“Section 3. (1) The Special Courts shall also be competent
if a crime within their jurisdiction represents also another
punishable deed.

“(2) If another punishable act is factually connected with
a crime within the jurisdiction of the Special Courts, the
proceedings on that other punishable deed against delinquents
and participants may be referred to the Special Court by way of
connection.”

* * * * * * *

“Section 9. (1) No hearings relating to the warrant of arrest
will be held.

* * * * * * *

“Section 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.

“Section 11. A preliminary court investigation will not take
place. * * *

“Section 12. * * * (4) The term of the summons (section 217 of
the Code of Criminal Procedure) is 3 days. It can be shortened
to 24 hours.

“Section 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.

“Section 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 Supreme Court or the
courts of appeal; in this case the Special Court has to proceed
according to section 270, paragraph 1–2 of the Code of Criminal
Procedure.

“Section 16. (1) There is no legal appeal against decisions of
the Special Courts.

“(2) Applications for a reopening of the trial are to be
decided upon by the criminal chamber of the district court. The
reopening of the trial 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 section 363 of the Code of Criminal Procedure remains
unaffected. If the application for the reopening of the trial
is justified, the trial will be ordered to take place before
the competent ordinary court.”[623]

Special Courts were also vested with jurisdiction under the law for the protection against violent political acts of 4 April 1933 under which the death penalty was authorized.[624]

On 1 September 1939 the Special Courts were given jurisdiction under the law concerning listeners to foreign radio broadcasts, and the death sentence was authorized in certain cases.[625] On 5 September 1939 jurisdiction of the Special Court was extended to cases of looting, and the death sentence was authorized. Jurisdiction was also extended to cases of criminal acts exploiting the extraordinary conditions caused by the war. That act further provided:

[Article 5] “In all trials by Special Courts the verdict must
be pronounced at once without observation of time limitations
if the perpetrator is caught redhanded or if guilt is otherwise
obvious”.[626]

On 21 February 1940 the Special Courts were expressly given jurisdiction concerning--

[Article 13] “1. Crime and offenses committed under the law of
20 December 1934 concerning treacherous attacks against State
and Party, and concerning protection of Party uniforms;

“2. Crimes under section 239a of the Reich Criminal Code and
under the law of 22 June 1938 concerning highway robbery by
means of highway traps;

“3. Crimes under the decree [1 September 1939] concerning
extraordinary measures in regard to radio;

“4. Crimes and offenses under the war economy decree of 4
September 1939;

“5. Crimes under section 1 of the decree of 5 September 1939
against public enemies;

“6. Crimes under sections 1 and 2 of the decree of 5 December
1939 against violent criminals.”[627]

The decree further provided:

[Article 14] (1) “The Special Court also has jurisdiction over
other crimes and offenses, if the prosecution is of the opinion
that immediate sentencing by the Special Court is indicated by
the gravity or the outrageousness of the act, on account of the
thereby-aroused public sentiment or in consideration of serious
threat to public order or security.”

[Article 23] “(1) In all proceedings before a Special Court the
sentence must be passed immediately without observation of any
reprieves, if the delinquent was caught in the very act or if
his guilt is self-evident otherwise.

“(2) In all other cases the term of summons shall be 24 hours.
(Articles 217, 218 of the Reich Code of Criminal Procedure
(Reichsstrafprozessordnung)).”

[Article 25] “(1) The Special Court must hand down a decision
in a case, even if the trial shows that the act with which the
accused is charged is of such a nature that the Special Court
is not competent to deal with it. If, however, the trial shows
that the act comes under the jurisdiction of the People’s Court,
the Special Court refers the matter to the latter court, by
decision; Article 270, section 2, of the Reich Code of Criminal
Procedure is applicable accordingly.

[Article 26] “(1) There is no legal appeal against a decision of
the Special Court.”

[Article 34] “The chief public prosecutor may lodge a petition
for nullification with the Supreme Court (Reichsgericht) against
a final judgment of a judge of the criminal court of the Special
Court, within 1 year from the date of its becoming final, if the
judgment is not justified because of an erroneous application of
law on the established facts.

[Article 35] “(1) The petition for nullification must be
submitted in writing to the Supreme Court. This court will
decide thereon by judgment based on a trial. With the consent of
the chief public prosecutor it can also reach a decision without
trial.

“2. The Supreme Court may order a postponement or an
interruption of the execution. It may order arrest or internment
even prior to the decision on the petition for nullification.
The criminal senate (Strafsenat) composed of three members
including the president, will decide thereon without a trial,
with reservations as to the regulations of article 124, section
3 of the Reich Code of Criminal Procedure.”[628]

The speed with which the Special Courts acted is of significance. In view of the congested dockets of the Special Courts, Freisler, acting for the Minister of Justice, ordered, “a Special Court is, as a rule, to be considered overloaded if a monthly average of more than forty new indictments has been filed with it.”

On 4 December 1941, in the law against Poles and Jews, _supra_, it was provided:

“IV. The State prosecutor shall prosecute a Pole or a Jew if he
considers that punishment is in the public interest.

“V. (1) Poles and Jews shall be tried by a Special Court or by
the district judge.

* * * * * * *

“VI. (1) Every sentence will be enforced without delay. The
State prosecutor may, however, appeal from the sentence of a
district judge to the court of appeal. The appeal has to be
lodged within 2 weeks.

“(2) The right to lodge complaints which are to be heard by the
court of appeal is reserved exclusively to the State prosecutor.

“VII. Poles and Jews cannot challenge a German judge on account
of alleged partiality.

“VIII. * * * (2) During the preliminary inquiry, the State
prosecutor may order the arrest and any other coercive measures
permissible.

“IX. Poles and Jews are not sworn in as witnesses in criminal
proceedings. If the unsworn deposition made by them before the
court is found false, the provisions as prescribed for perjury
and false statements shall be applied accordingly.

“X. (1) Only the State prosecutor may apply for the reopening
of a case. In a case tried before a Special Court, the decision
concerning an application for the reopening of the proceedings
rests with this court.

“(2) The right to lodge a plea of nullity rests with the State
prosecutor general. The decision on the plea rests with the
court of appeal.

“XI. Poles and Jews are not entitled to act as prosecutors
either in a principal or a subsidiary capacity.

“XII. The court and the State prosecutor shall conduct
proceedings within their discretion and according to the
principles of the German law of procedure. They may, however,
deviate from the provisions of the German law on the
organization of courts and on criminal procedure, whenever this
may appear to them advisable for the rapid and more efficient
conduct of proceedings.

* * * * * * *

“XV. Within the meaning of this decree, the term ‘Poles’
includes ‘Schutzangehoerige’ or those who are stateless.”[629]

It will be noted that the procedural rules became progressively more summary and severe as the military situation became progressively more critical.

A major development in the Nazification of the judicial system appears in the establishment of the “People’s Court” which was subdivided into a number of senates or departments. We quote:

“When the Supreme Court acquitted three of the four defendants
charged with complicity in the Reichstag fire, its jurisdiction
in cases of treason was thereafter taken away and given to a
newly established ‘People’s Court’ consisting of two judges and
five officials of the Party.”[630]

The act of 24 April 1934 which established the highly flexible definitions of high treason also provided new judicial machinery for enforcement.

“Article III, section 1. (1) For the trial of cases of high
treason the People’s Court is established.

“(2) Decisions of the People’s Court are made by five members
during the trial, by three members outside the trial. This
includes the president. The president and one further
member must be qualified judges. Several senates may be
established.”[631]

In section 3 (1) of article III it is provided that “the People’s Court is competent for the investigation and decision in the first and last instance in cases of high treason * * *”, and in other specified cases.

“Article III, section 3. (2) The People’s Court is also
competent in such cases where crimes or offenses subject to its
competence constitute at the same time another punishable act.

“(3) If another punishable act is in factual connection with a
crime or offense subject to the jurisdiction of the People’s
Court, the trial against the perpetrators and participants of
the other punishable act may be brought before the People’s
Court by way of combination of the respective cases.”

* * * * * * *

“[Article III] section 5. (2) Against the decisions of the
People’s Court no appeal is permitted.”

On 1 December 1936, the jurisdiction of the People’s Court was extended to include violation of the law against economic sabotage. (_supra._)

On 14 April 1939, the system was extended to Bohemia and Moravia. We quote:

“[Section 1] (2) Furthermore, the Supreme Reich Court and the
People’s Court will carry out jurisdiction for the Protectorate
Bohemia and Moravia.”[632]

The extent of jurisdiction was defined as follows:

“Section 6. (1) German nationals are subject to German
jurisdiction in the Protectorate of Bohemia and Moravia.

“(2) Persons who are not German nationals are subject to German
jurisdiction for offenses--

“_1._ to which German criminal law applies,

“_2._ if they are prosecuted under a private action
provided the action has been brought by a German national.

* * * * * * *

“Section 7. German jurisdiction in the Protectorate of Bohemia
and Moravia excludes jurisdiction by the courts of the
Protectorate unless otherwise provided.

“Section 8. The German courts in the Protectorate of Bohemia
and Moravia administer justice in the name of the German
people.”[633]

By the law of 16 September 1939, provision was made for extraordinary appeal against final judgments. We quote in part:

“Article 2, section 3. (1) Against legally valid sentences in
criminal proceedings the senior Reich prosecutor at the Reich
Supreme Court can file an appeal within one year after they have
been pronounced, if, because of serious misgiving, concerning
the justness of the sentence, he considers a new trial and a new
decision in the cases necessary.

“(2) On the basis of the appeal, the Special Penal Senate of the
Reich Supreme Court will try the cases a second time.

“(3) If the first sentence was passed by the People’s Court,
the appeal is to be filed by the senior Reich prosecutor at
the People’s Court, and the second trial is to be held by the
Special Senate of the People’s Court. The same applies to the
sentences of courts of appeal in cases which the senior Reich
prosecutor at the People’s Court had transferred to the public
prosecutor attached to the court of appeals, or which the
People’s Court had transferred for trial and sentencing to the
courts of appeal.

* * * * * * *

“Section 5. (1) The Special Senate of the People’s Court
consists of the president and of four members.”[634]

On 21 February 1940 the jurisdiction of the People’s Court was redefined and again extended to cover high treason, treason, severe cases of damaging war material, failure to report an intended crime, crimes under section 5 (1) of the decree of 28 February 1933 concerning protection of people and State; crimes of economic sabotage, crime of undermining German military efficiency, and others.

On 6 May 1940 a broad decree was issued concerning the jurisdiction of German courts for the “territory of the Greater German Reich.” That decree provided:

“German criminal law will be applied to the crime of a German
national, no matter whether it is committed in Germany or
abroad. For a crime committed abroad, which according to the
laws of the place of commitment is not punishable, German
criminal law will not be applied, unless such action would
constitute a crime according to the sound sentiment for justice
of the German people on account of the particular conditions
prevailing at the place of commitment.”[635]

* * * * * * *

“Paragraph 4. German criminal law will be applied also in case
of crimes committed by a foreigner in Germany.

“German criminal law will be applied to crimes committed by a
foreigner abroad, if they are punishable according to the penal
code of the territory where they are committed, or if such
territory is not subject to any jurisdiction and if--

“1. the criminal has obtained German nationality after the
crime, or

“2. the crime is directed against the German people or a German
national, or

“3. the criminal is apprehended in Germany and is not
extradited, although the nature of his crime would permit an
extradition.

“German criminal law will be applied to the following crimes
committed by a foreigner abroad, independently of the laws of
the place of commitment:

“1. Crimes committed while holding a German governmental office,
as a German soldier or as a member of the Reich Labor Service
(Reichsarbeitsdienst) or committed against a holder of a German
office or the State or the Party, against a German soldier or a
member of the Reich Labor Service, while on duty or relating to
his duty;

“2. Actions constituting treason or high treason against
Germany,” and in other special cases.

Certain additional provisions intimately affecting the rights of accused persons deserve special mention.

“Section 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.

“Section 11. A preliminary court investigation will not take
place. * * *”[636]

By a decree of the Reich Minister of Justice, Dr. Thierack, on 13 December 1944, it was provided:

“Article 2, paragraph 12. Limited admittance of defense counsel.

“(1) In any 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 material or legal problems require assistance
by a defense counsel, or if the defendant, in due consideration
of his personality, is unable to defend himself personally. * *
*”[637]

On 16 February 1934 it was provided that:

“Article 2. The president of the Reich has the prerogatives for
_nulle prosequi_ and clemency (formerly held by the States).

“Amnesties can be promulgated only by Reich law.”[638]

This centralization of the clemency powers marks a radical departure from the system which prevailed prior to 1933 and was the means by which the will of Hitler became a dominating force in the Ministry of Justice and in the courts. Other provisions are 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.[639]

“In penal matters for which the People’s Court, the superior
district court, or the court of assizes are competent,
preexamination is conducted upon application of the prosecution,
if, after due consideration, the prosecution thinks it necessary.

“In other penal matters as well, preexamination takes place on
application of the prosecution. The prosecution should make
such an application only if unusual circumstances make it
necessary to have a judge conduct such preexamination.”[640]

An illuminating comment on the law is made by a German text writer.

“A criminal case on which verdict has been passed must not
again become the subject of another criminal proceeding. This
exclusive effect pertains to the subject of the case both as
regards the crime and the criminal. * * * According to the
findings of the German supreme court and to the prevailing
theory in accord with these findings, the effect of _ne bis
in idem_ includes the history of the case submitted to
the court for verdict. * * * This theory, however, leads to
unbearable consequences. In order to avoid these unbearable
consequences some courts, recently, have permitted the breach of
the principle against double jeopardy in exceptional cases where
jeopardy of a second trial is necessitated by the sound sense of
justice. * * *”[641]

On 21 March 1942 Adolf Hitler promulgated a decree regarding the simplification of the administration of justice. We quote the following excerpts:

“In penal cases, * * * the formal opening of the main proceeding
must be eliminated. * * * (Sec. I.)

“Indictments and judicial decisions must be more tersely written
by restricting them to the absolutely necessary. (Sec. II.)

“The cooperation of professional associate judges in judicial
decisions must be restricted. (Sec. III.)

“I commission the Reich Minister of Justice, in agreement
with the Reich Minister and Chief of the Reich Chancellery
and with the Chief of the Party Chancellery, to issue the
legal provisions necessary for the execution of this decree.
I empower the Reich Minister of Justice to make the necessary
administrative provisions and to decide any doubtful questions
by administrative means. (Sec. VI.)”

On 13 August 1942 a decree was issued by the defendant
Schlegelberger as Reich Minister of Justice in charge of the
Ministry--

“Article 4. * * * Decisions by the criminal court, the Special
Court, and the criminal senate of the circuit courts of appeal
may be made solely by the president or his regular deputy, if
he considers the cooperation of his associates dispensable in
view of the simplicity of the nature and the legal status of the
case, and if the public prosecutor agrees.

“Article 5. Main proceeding without public prosecutor--In the
proceeding before the district judge, the public prosecutor may
renounce his participation in the main proceeding.

“Article 7 (2). The validity of an objection is decided on by
the president of the deciding court. The admissibility of an
appeal is decided on by the president of the court of appeal
(Berufungsstrafkammer); he is also authorized to bring about a
decision of the court. These decisions are not subject to any
proof, and are incontestable.

“Article 7 (3). Further objections will not be admitted.”

We have already quoted at length from the decree of 4 December 1941 concerning the organization of criminal jurisdiction against Poles and Jews in the Incorporated Eastern Territories. That decree also contained provisions for the establishment of martial law from which we quote:

“Article XIII (1). Subject to the consent of the Reich Minister
of the Interior and the Reich Minister of Justice, the Reich
governor may, until further notice, enforce martial law in the
Incorporated Eastern Territories, either in the whole area under
his jurisdiction or in parts thereof, upon Poles and Jews guilty
of grave excesses against the Germans or of other offenses which
seriously endanger the German work of reconstruction.

“(2) The courts established under martial law impose the death
sentence. They may, however, dispense with punishment and refer
the case to the Secret State Police (Gestapo).”

A final step in the development of summary criminal procedure was taken on 15 February 1945 by a decree of the Reich Minister of Justice, Dr. Thierack. The decree provided:

“II. 1. The court martial consists of a judge of a criminal
court as president and of a member of the political leader
corps, or of a leader of another structural division of the
NSDAP and an officer of the Wehrmacht, the Waffen SS, or the
police, as associate judges. * * *

“III. 1. The courts martial have jurisdiction for all kinds of
crimes endangering the German fighting power or undermining the
people’s military efficiency. * * *

“IV. 1. The sentence of the court martial will be either death,
acquittal, or commitment to the regular court. The consent of
the Reich defense commissar is required. He gives orders for the
time, place, and kind of execution. * * *”[642]

Pursuant to a decree of the Fuehrer of 16 March 1939, the defendant Schlegelberger, as Reich Minister of Justice in charge, together with the Minister of the Interior and the Chief of the Armed Forces, Keitel, issued a decree which reads in part as follows:

“Section 1. In case of direct attack by a non-German citizen
against the SS or the German Police or against any of their
members, the Reich Leader of the SS and the Chief of the German
Police in the Reich Ministry of the Interior may establish
the jurisdiction of a combined SS court and police court, by
declaring that special interests of parts of the SS or of the
Police require that judgment be given by an SS and police court.

“This declaration shall be sent to the Reich Protector of
Bohemia and Moravia. The SS and police court, which shall have
jurisdiction in individual cases, shall be specified by the
Reich Leader of the SS and Chief of the German Police in the
Reich Ministry of the Interior.

“Section 2. If the offense directly injures the interests of the
armed forces, the Reich Leader of the SS and chief of the German
Police in the Reich Ministry of the Interior, and the chief of
the Supreme Command of the Armed Forces shall reach an agreement
as to whether the case shall be prosecuted by an SS and police
court or by a military court.[643]

“Article II. Exemption of the Reich court from being bound
to precedent sentence: The Reich 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 be able to accomplish this task without having to show
consideration for the jurisdiction of the past brought about by
other ideology and other legal concepts, it is ruled as follows:

“When a decision is made about a legal question, the Reich Court
can deviate from a decision laid down before this law went into
effect.”[644]

_THE LAW IN ACTION_

We pass now from the foregoing incomplete summary of Nazi legislation to a consideration of the law in action, and of the influence of the “Fuehrer principle” as it affected the officials of the Ministry of Justice, prosecutors, and judges. Two basic principles controlled conduct within the Ministry of Justice. The first concerned the absolute power of Hitler in person or by delegated authority to enact, enforce, and adjudicate law. The second concerned the incontestability of such law. Both principles were expounded by the learned Professor Jahrreiss, a witness for all of the defendants. Concerning the first principle, Dr. Jahrreiss said:

“If now in the European meaning one asks about legal
restrictions, and first of all one asks about restrictions
of the German law, one will have to say that restrictions
under German law did not exist for Hitler. He was _legibus
solutus_ in the same meaning in which Louis XIV claimed that
for himself in France. Anybody who said something different
expresses a wish that does not describe the actual legal facts.”

Concerning the second principle, Jahrreiss supported the opinion of Gerhard Anschuetz, “crown jurist of the Weimar Republic”, who holds that if German laws were enacted by regular procedure, judicial authorities were without power to challenge them on constitutional or ethical grounds. Under the Nazi system, and even prior thereto, German judges were also bound to apply German law even when in violation of the principles of international law. As stated by Professor Jahrreiss:

“To express it differently, whether the law has been passed
by the State in such a way that it was inconsistent with
international law on purpose or not, that could not play
any part at all; and that was the legal state of affairs,
regrettable as it may be.”

This, however, is not to deny the superior authority of international law. Again we quote a statement of extraordinary candor by Professor Jahrreiss:

“On the other hand, certainly there were legal restrictions
for Hitler under international law. * * * He was bound by
international law. Therefore, he could commit acts violating
international law. Therefore, he could issue orders violating
international law to the Germans.”

The conclusion to be drawn from the evidence presented by the defendants themselves is clear: In German legal theory Hitler’s law was a shield to those who acted under it, but before a tribunal authorized to enforce international law, Hitler’s decrees were a protection neither to the Fuehrer himself nor to his subordinates, if in violation of the law of the community of nations.

In German legal theory, Hitler was not only the supreme legislator, he was also the supreme judge. On 26 April 1942 Hitler addressed the Reichstag in part as follows:

“I do expect one thing: That the nation gives me the right to
intervene immediately and to take action myself wherever a
person has failed to render unqualified obedience. * * *”

“I therefore ask the German Reichstag to confirm expressly that
I have the legal right to keep everybody to his duty and to
cashier or remove from office or position without regard for
his person, or his established rights, whoever, in my view and
according to my considered opinion, has failed to do his duty.”

“* * * From now on, I shall intervene in these cases and remove
from office those judges who evidently do not understand the
demand of the hour.”

On the same day the Greater German Reichstag resolved in part as
follows:

“* * * the Fuehrer must have all the rights postulated by him
which serve to further or achieve victory. Therefore--without
being bound by existing legal regulations--in his capacity as
leader of the nation, Supreme Commander of the Armed Forces,
governmental chief and supreme executive chief, as supreme
justice[645], and leader of the Party--the Fuehrer must be in a
position to force with all means at his disposal every German,
if necessary, whether he be common soldier or officer, low or
high official or judge, leading or subordinate official of
the Party, worker or employee, to fulfill his duties. In case
of violation of these duties, the Fuehrer is entitled after
conscientious examination, regardless of so-called well-deserved
rights, to mete out due punishment, and to remove the offender
from his post, rank and position, without introducing prescribed
procedures.”

The assumption by Hitler of supreme governmental power in all departments did not represent a new development based on the emergency of war. The declaration of the Reichstag was only an echo of Hitler’s declaration of 13 July 1934. After the mass murders of that date (the Roehm purge) which were committed by Hitler’s express orders, he said:

“Whenever someone reproaches me with not having used the
ordinary court for their sentencing, I can only say: ‘In this
hour I am responsible for the fate of the German nation and
hence the supreme law lord[645] of the German people.’”

The conception of Hitler as the supreme judge was supported by the defendant Rothenberger. We quote (_NG-075, Pros. Ex. 27_):

“However, something entirely different has occurred; with the
Fuehrer a man has risen within the German people who awakens the
oldest, long forgotten times. Here is a man who in his position
represents the ideal of the judge in its perfect sense, and
the German people elected him for their judge--first of all,
of course, as ‘judge’ over their fate in general, but also as
‘supreme magistrate[645] and judge.’”

In the same document the defendant Rothenberger expounded the National Socialist theory of judicial independence. He said:

“Upon the fact that the judge can use his own discretion is
founded the magic of the word ‘judge.’”

He asserted that “every private and Party official must abstain from all interference or influence upon the judgment,” but this statement appears to be mere window-dressing, for after his assertion that a judge “must judge like the Fuehrer”, he said:

“In order to guarantee this, a direct liaison officer without
any intermediate agency must be established between the Fuehrer
and the German judge, that is, also in the form of a judge, the
supreme judge in Germany, the ‘Judge of the Fuehrer’. He is to
convey to the German judge the will of the Fuehrer by authentic
explanation of the laws and regulations. At the same time he
must upon the request of the judge give binding information in
current trials concerning fundamental political, economic, or
legal problems which cannot be surveyed by the individual judge.”

Thus, it becomes clear that the Nazi theory of the judicial independence was based upon the supreme independence of the Fuehrer, which was to be channelized through the proposed liaison officer from Fuehrer to judge.

On 13 November 1934, Goering, in an address before the Academy of German Law, expressed similar sentiments concerning the position of Hitler.

“Gentlemen, for the German nation this matter was settled by the
words of the judge in this hour, the Fuehrer, who stated that in
this hour of uttermost danger he alone, the Fuehrer elected by
the people, was the supreme and only judge of the German nation.”

The defendant Schlegelberger, on 10 March 1936 said:

“It should be emphasized, however, that in the sphere of the
law, also, it is the Fuehrer and he alone who sets the pace of
development.”

To the same effect we quote Reich Minister of Justice Dr. Thierack, who, on 5 January 1943 said:

“So also with us the conviction has grown in these 10 years in
which the Fuehrer has led the German people that the Fuehrer is
the chief justice and the supreme judge of the German people.”

On 17 February 1943 the defendant Under Secretary Dr. Rothenberger summed up his legal philosophy with the words (_NG-415, Pros. Ex. 26_):

“The judge is on principle bound by the law. The laws are the
orders of the Fuehrer.”

As will be seen, the foregoing pronouncement by the leaders in the field of Nazi jurisprudence were not mere idle theories. Hitler did, in fact, exercise the right assumed by him to act as supreme judge, and in that capacity in many instances he controlled the decision of the individual criminal cases.

The evidence demonstrates that Hitler and his top-ranking associates were by no means content with the issuance of general directives for the guidance of the judicial process. They tenaciously insisted upon the right to interfere in individual criminal sentences. In discussing the right to refuse confirmation of sentences imposed by criminal courts, Martin Bormann, as Chief of the Party Chancellery, wrote to Dr. Lammers, Chief of the Reich Chancellery, as follows (_NG-102, Pros. Ex. 75_):

“When the Fuehrer has expressly requested the right of
direct interference over all formal legal provisions, this
is emphasizing the very importance of the modification of a
judicial sentence.”

The Ministry of Justice was acutely conscious of the interference by Hitler in the administration of criminal law. On 10 March 1941 Schlegelberger wrote to Reich Minister Lammers in part as follows (_NG-152, Pros. Ex. 63_):