IV. GENERAL DEVELOPMENT OF GERMAN LAW DURING THE NAZI PERIOD (continued 2)

(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

*******

PART II

SPECIAL COURTS

Section 1

Organization and Jurisdiction of the Special Courts

Article 10

Organization

(1) A Special Court will be established with one or several district courts within the district of each court of appeal.

(2) Location and district of the Special Courts are determined by the Reich Minister of Justice.

Article 11

Composition

1. Decisions of the Special Court are to be rendered by three professional judges.

*******

Article 13

Exclusive Jurisdiction

The Special Court has jurisdiction for:

1. Crimes and offenses committed under the law concerning insidious attacks against State and Party, and the protection of Party uniforms, of 20 December 1934.[123] (Reichsgesetzblatt I, p. 1269, and under articles 134a and 134b of the criminal (penal) code.)

2. Crimes under article 239a of the criminal (penal) code and under the law against highway robbery by means of highway traps, of 22 June 1938 (Reichsgesetzblatt I, p. 651).

3. Crimes under the decree concerning extraordinary measures with regard to radio, 1 September 1939[124] (Reichsgesetzblatt I, p. 1683).

4. Crimes and offenses under article 1 of the war economy decree, 4 September 1939[125] (Reichsgesetzblatt I, p. 1609).

5. Crimes under article 1 of the decree against public enemies, 5 September 1939[126] (Reichsgesetzblatt I, p. 1679).

6. Crimes under articles 1 and 2 of the decree against violent criminals, 5 December 1939, (Reichsgesetzblatt I, p. 2378).

Article 14

Establishment of jurisdiction of the court by the prosecution.

(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 wickedness of the act, by the public excitement aroused or in consideration of a serious threat to public order or security.

Article 15

Extension of Jurisdiction

(1) The Special Court is also competent if a crime or offense belonging to its jurisdiction at the same time constitutes another punishable act.

(2) If there is a factual connection between a crime or offense belonging to the jurisdiction of the Special Court and another punishable act, the latter can be brought before the Special Court by way of combination.

Article 16

Limitations of Jurisdiction

The Special Court is not competent for offenses indicated in articles 13 through 15, in as far as the competency of the People’s Court or of the court of appeal is established.

Section 2

Proceedings before Special Courts

Article 17

Application of General Rules of Procedure

(1) For the proceedings before the Special Courts, the code of criminal procedure, the judicature act, and their amendments apply, unless otherwise specified.

(2) The rules of the second chapter of the juvenile court law are not applicable.

Article 18

Local Competency of the Court

The Special Court shall also be competent for those defendants who are seized or kept in confinement in its district. The jurisdiction, once established, will not be affected by the release of the defendant.

*******

Article 23

Speeding up of the Proceedings

(1) In all proceedings before a Special Court the sentence must be passed immediately without observation of any time limits, if the delinquent was caught in the very act or if his guilt is otherwise obvious.

(2) In all other cases the term of summons (arts. 217 and 218 of the code of criminal procedure) shall be 24 hours.

*******

Article 25

Relationship between the Special Courts and the regular courts

(1) The Special Court must hand down a decision in a case, even if the trial shows that the act with which the defendant 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 will refer the case to the latter court; article 270, paragraph 2, of the code of criminal procedure applies accordingly.

(2) If the trial of a case before the People’s Court or the court of appeal, after the filing of the indictment, shows that the Special Court has exclusive jurisdiction over the act with which the defendant is charged, the People’s Court or the court of appeal can either decide the case themselves or direct the trial to take place before the Special Court. In the latter case the act with which the defendant is charged has to be described, with emphasis on its legal characteristics and on the penal law.

Article 26

Incontestability

(1) There is no legal appeal against a decision of the Special Court.

(2) Applications for a reopening of the proceedings will be decided on by the penal chamber of the district court at the seat of the Special Court. The reopening of the case in favor of the defendant will take place also if circumstances should make it necessary to re-examine the case in ordinary proceedings. Article 363 of the code of criminal procedure shall remain unaffected. If the application for reopening is justified, the trial shall be directed to take place before the competent ordinary court.

*******

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

*******

*******

CHAPTER III. PEOPLE’S COURT[132]

Article 1

(1) For the trial of cases of high treason and 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.

(3) The prosecution is represented by the Chief Prosecutor of the Reich.

Article 2

The members of the People’s Court and their deputies are appointed for the duration of 5 years by the Reich Chancellor at the recommendation of the Reich Minister of Justice.

Article 3

(1) The People’s Court is competent for the investigation and decision in the first and last instance in the cases of high treason according to articles 80 through 84, treason according to articles 89 through 92, assault against the Reich President according to article 94, paragraph 1 of the criminal (penal) code, and the crimes listed in article 5, paragraph 2, No. 1 of the decree of the Reich President for the protection of people and State of 28 February 1933[133] (Reichsgesetzblatt I, p. 83). In these cases the People’s Court also make the decision listed in article 73, paragraph 1 of the judicature act.

(2) The People’s Court is also competent in such cases where crimes or offenses subject to its competency constitute at the same time another crime or offense.

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

Article 4

(1) The Chief Reich Prosecutor can transfer the prosecution of the crimes of preparation of high treason listed in articles 82 and 83 of the penal code and of the treasonable offenses listed in articles 90 b through 90 e of the penal code to the prosecutor at the court of appeal. The Chief Reich Prosecutor can withdraw the transfer before the opening of the investigation.

(2) In the cases mentioned in paragraph 1 the People’s Court can transfer the trial and decision to the court of appeal, if the Chief Reich Prosecutor requests this when filing the indictment.

(3) Article 120 of the judicature act applies accordingly.

Article 5

(1) As far as not otherwise stipulated, the procedure is subject to the provisions of the judicature act and the code of criminal procedure concerning the procedure before the Reich Supreme Court in the first instance.

(2) Against the decisions of the People’s Court no legal appeal is permitted.

*******

Berlin, 24 April 1934

The Reich Chancellor

Adolf Hitler

The Reich Minister of Justice, at the same time for the Reich Minister of the Interior

Dr. Guertner

The Reich Defense Minister

von Blomberg

PARTIAL TRANSLATION OF DOCUMENT NG-715

PROSECUTION EXHIBIT 112

EXTRACTS FROM LAW OF 16 SEPTEMBER 1939 AMENDING REGULATIONS OF GENERAL CRIMINAL PROCEDURE, MILITARY CRIMINAL PROCEDURE AND THE PENAL CODE

1939 REICHSGESETZBLATT, PART I, PAGE 1841

*******

Article 5

The Special Senate of the People’s Court

(1) The special senate of the People’s Courts consists of the president and of four members.

(2) The special senate is presided over by the president of the People’s Court[134] and, if he cannot be present, by the vice president. One of the members must be a president of a senate or a professional associate judge at the People’s Court.

(3) The members and their deputies are appointed for the duration of two business years by the Fuehrer and Reich Chancellor upon recommendation of the Reich Minister of Justice.

*******

Fuehrer Headquarters, 16 September 1939

The Fuehrer and Reich Chancellor

Adolf Hitler

The Reich Minister of Justice

Dr. Guertner

The Chief of the High Command of the Armed Forces

Keitel

PARTIAL TRANSLATION OF SCHLEGELBERGER DOCUMENT 88

SCHLEGELBERGER DEFENSE EXHIBIT 81

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

1940 REICHSGESETZBLATT, PART I, PAGE 405

Upon the basis of legal authority and with the consent of the Plenipotentiary of the Four Year Plan [Goering] and the High Command of the Wehrmacht, the following is ordered:

Chapter I

Jurisdiction of the Criminal Courts

*******

Article 5

Jurisdiction of the People’s Court

(1) The People’s Court has jurisdiction for—

1. High treason (articles 80 through 84 of the Reich criminal code).

2. Treason (articles 89 through 92 of the Reich criminal code).

3. Attacks against the Fuehrer and Reich Chancellor (article 94, paragraph 1 of the Reich criminal (penal) code).

4. Severe cases of damaging military equipment and endangering the armed forces of friendly states (arts. 1–5 of the decree supplementing penal provisions for the protection of the defensive strength of the German people of 25 November 1939, Reichsgesetzblatt I, p. 2319).

5. Failure to report an intended crime (art. 139, par. 2 of the criminal (penal) code), insofar as this crime was intended to be high treason or treason under the jurisdiction of the People’s Court, or a severe case of damaging military equipment.

6. Crimes under article 5, paragraph 1 of the decree concerning protection of people and state, of 28 February 1933 (1933 Reichsgesetzblatt I, p. 83).

7. Crimes under article 1, paragraph 1 of the law against economic sabotage, of 1 December 1936[135] (1936 Reichsgesetzblatt, Part I, page 999).

(2) In cases of acts punishable under articles 82, 83, 90b through 90e, 92 of the criminal (penal) code, the Chief Reich Prosecutor at the People’s Court can transfer the prosecution to the attorney general at the court of appeal.

(3) In the cases described in paragraph 2, the People’s Court, in agreement with the Chief Reich Prosecutor, can transfer the trial and decision to the court of appeal, as long as the trial has not been directed to take place before the People’s Court.

(4) The Chief Reich Prosecutor can withdraw the transfer and his consent to a transfer as long as the trial has not begun before the court of appeal.

*******

Final Regulations

Section 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-938

PROSECUTION EXHIBIT 438

LETTER FROM THE OFFICE OF THE SUPREME CHIEF OF THE SA, SIGNED BY DEFENDANT KLEMM, 4 DECEMBER 1936, PROPOSING FIVE SA LEADERS AS ASSOCIATE JUDGES OF THE PEOPLE’S COURT

Kl/Hz

Supreme Chief of the SA

Adjutant’s office of the Chief of Staff

SA Liaison officer in the Reich Ministry of Justice.

Correspondence Record: None

Berlin W 8 4 December 1936

Voss-strasse 1

Subject: Members of the SA as members of the People’s Court

Enclosures: [Handwritten] Proposal for supplementary appointments of the below-mentioned five nominees. W. 4 December.

To: The Reich Ministry of Justice, Section I, Special attention: Ministerial Counsellor Wanger, Berlin W, Wilhelmstrasse 65.

I understand that more honorary associate judges [ehrenamtliche Beisitzer] of the People’s Court are to be appointed. On behalf of the Chief of Staff [of SA] the following SA leaders are proposed:

Obergruppenfuehrer Arthur Boeckenhauer, Munich, Barerstrasse 11

Gruppenfuehrer von Hoerauf, Munich

Brigadefuehrer Hanns Bunge, Munich

Brigadefuehrer Daniel Hauer, Stuttgart, Herdweg 72

Oberfuehrer Erich Kaul, Berlin, Wilhelmstrasse 106

I should be grateful if the above-named would be included among the nominees proposed to the Fuehrer and Reich Chancellor.

Chief of the adjutant’s office

By order:

[Signed] Klemm

Obersturmbannfuehrer

PARTIAL TRANSLATION OF DOCUMENT NG-160

PROSECUTION EXHIBIT 124

LETTER FROM FREISLER, PRESIDENT OF THE PEOPLE’S COURT, TO THE REICH MINISTER OF JUSTICE, 17 JANUARY 1944, TRANSMITTING SUMMARY OF ACTIVITY OF THE PEOPLE’S COURT FROM 1 JANUARY TO 31 DECEMBER 1943

The President of the People’s Court

1440 E-1. 123g

[Stamp] 01/3

Berlin W 9, 17 January 1944

Bellevuestrasse 15

Telephone 22 18 23

18 January 1944

[Stamp] Secret

To: the Reich Minister of Justice

Berlin W 8

2 Enclosures

[Stamp] Reich Ministry of Justice

18 January 1943

Dept. IV

[Initial] Th [Thierack]

My dear Reich Minister!

Attached please find two enclosures giving you a summary on the activity of the People’s Court from 1 January to 31 December 1943. The activity of the special senate is not contained therein as the documents were lost in the terror attack of 24 November 1943.

Heil Hitler!

Obediently yours

[Signed] Freisler

[Handwritten] taken out 1 copy [signed] Klemm

1440E-1. 116

SUMMARY ON THE ACTIVITY OF THE PEOPLE’S COURT FROM 1 JANUARY UNTIL 31 DECEMBER 1943

1st senate 2d senate 3d senate 4th senate 5th senate 6th senate Total

1. Number of sentences 505 177 114 186 140 190 1,312

2. Number of decrees 232 54 85 122 97 127 717

3. Number of persons sentenced 1,332 610 141 259 384 612 3,338

thereof those under 18 years of age. 6 5 1 12

4. Number of days of session 550 164 115 131 162 148 1,270

thereof those outside of Berlin. 183 83 27 116 71 480

5. Death sentences 769 368 49 72 200 204 1,662

6. Life terms 8 2 4 2 8 24

7. 15–10 years of hard labor 80 29 6 25 48 78 266

8. 10–5 years of hard labor 234 92 15 37 47 161 586

9. Less than 5 years of hard labor. 97 57 12 19 51 64 300

10. Penal camp:

a. 15–10 years 1 3 6 10

b. 10–5 years 5 2 5 4 5 21

c. less than 5 years 1 1 5 2 2 11

11. Imprisonment 87 43 25 42 20 42 259

12. Fined:

a. by judgment

b. additional 6 6

13. Acquittals 50 16 12 47 14 42 181

14. Procedure suspended: (persons)

a. by judgment 1 8 8 1 18

b. by decree 20 4 1 1 28 6 60

15. Settled in other ways (persons) 381 92 22 90 35 103 723

[Handwritten] IV a 35. 44g

TRANSLATION OF DOCUMENT NG-186

PROSECUTION EXHIBIT 340

MEMORANDUM FROM FREISLER, PRESIDENT OF THE PEOPLE’S COURT, 1 APRIL 1944, CONCERNING ASSIGNMENT OF VARIOUS TYPES OF CASES TO THE SEVERAL SENATES OF THE PEOPLE’S COURT

[Handwritten] To the Minister

3204-1. 65

The examination of the charges filed during the first quarter of 1944 shows the necessity of a change in the procedure. For the charges coming in after 1 April 1944, I distribute our work as follows:

A

The first senate will take up—

I. a. Attacks against the Fuehrer,

b. Attacks against leading men of the State, the movement [Nazi Party] or the armed forces,

c. Attacks against Germans in foreign countries, on grounds of their German nationality to thereby hit the Reich, or against representatives of the Reich, insofar as these attacks go beyond verbal attacks; in this category also belong all crimes against section 5 of the decree of 28 February 1933.[136]

II. a. Punishable acts of Germans of the intelligentsia or of the economic leadership,

b. Acts hostile to the State based on religious convictions from the Gauen: Baden, Bayreuth, Berlin, Danzig-West Prussia, Duesseldorf, Essen, Franconia, Carinthia, Cologne, Aix-la-Chapelle, Main-Franconia, Moselland, Munich-Upper Bavaria, Lower Danube, Upper Danube, Upper Silesia, Salzburg, Swabia, Styria, Sudetenland, Tyrol-Vorarlberg, Wartheland, Westmark, Vienna, Wuerttemberg-Hohenzollern, and from the Government General, excepting both treason [Landesverrat] and Marxist high treason.

III. Punishable acts of Germans from Alsace, from Luxembourg, Lower Styria, or Upper Carinola and punishable offenses in these areas; punishable acts of Germans in Bohemia and Moravia.

IV. Marxist high treason from Berlin and the areas incorporated since the beginning of the war.

[stamp] The Minister is informed 20 April

V. Non-Marxist high treason, with the exception however of separatist (often called legitimist) high treason, insofar as it concerns the Alps and Danube and Gauen or Bavaria.

VI. Defeatism, cases of undermining of morale and intentional evasion of military service (Art. 5, KSSVO) from the Gauen Berlin, Brandenburg, Silesia, Pomerania, East Prussia, Mecklenburg, Sudetenland, Upper Silesia, and the Reich Gauen Danzig-West Prussia, and the Wartheland.

VII. Punishable offenses of foreigners [Fremdvoelkischer]—except high treason—from Bohemia, if these offenses were committed after the establishment of the protectorate.

VIII. Impeachment of non-German civilians for punishable offenses against the Reich or the occupying power in the occupied northern areas according to the special instructions for the area.

IX. Chiefly punishable acts committed abroad—with exception of high treason.

B

The second senate will take up—

I. All other cases of Marxist high treason within the borders of the Altreich [pre-1938 Reich].

II. Impeachment of non-German civilians for punishable offenses against the Reich or the occupying power in France and Belgium in accordance with the special directions pertaining thereto.

III. Acts hostile to the State based on religious convictions from the Gauen Halle-Merseburg, Hamburg, Hessen-Nassau, Kurhessen, Magdeburg-Anhalt, Mark Brandenburg, Mecklenburg, Lower Silesia, East-Hannover, East Prussia, Pomerania, Saxony, Schleswig-Holstein, South Hannover-Brunswick, Thuringia, Weser-Ems, Westphalia-North, Westphalia-South—with exception of high treason.

IV. Endangering of the armed forces of befriended states (sec. 5 of the decree of 25 November 1939).

C

The third senate will take up—

I. High treason in favor of the Soviet Union and Poland.

II. Defeatism, undermining of morale, and intentional evasion of military service (Art. 5, KSSVO) from the entire Reich, as far as these affairs are not dealt with by the first senate (A II and A VI) or the second senate (B III), excepting however the Gauen Essen, Duesseldorf, Cologne-Aix-la-Chapelle, Moselland, Westphalia-North, Westphalia-South, and Saxony.

D

The fourth senate takes up—

I. High treason in favor of all countries of the world except the Soviet Union and Poland.

II. Damaging of means of defense.

III. Punishable offenses of Germans from Lorraine and punishable offenses in Lorraine.

IV. Punishable offenses of foreigners from Moravia, in case they were committed after the establishment of the protectorate, however not high treason in favor of the Soviet Union or Poland.

E

The fifth senate takes up—

I. Punishable crimes except high treason and defeatism, undermining of morale as well as evasion of military service, in the Reich Gauen Vienna, Upper and Lower Danube.

II. Separatist high treason involving the Reich Gauen Vienna, Upper and Lower Danube, Styria, Carinthia, Salzburg, and Tyrol-Vorarlberg.

F

The sixth senate takes up—

I. Punishable offenses except treason and defeatism, undermining of morale and evasion of military service in the Reich Gauen Styria and Carinthia, Salzburg, and Tyrol-Vorarlberg.

II. Separatist high treason involving Bavaria.

III. Accusations according to the law against sabotage of the economy of 1 December 1936.

IV. Accusations according to the decree of the Fuehrer for the protection of the armament economy from 21 March 1942.

V. Defeatism, undermining of morale, intentional evasion of military service (Art. 5, KSSVO) from the Gauen Essen, Duesseldorf, Cologne-Aix-la-Chapelle, Moselland, Westphalia-North, Westphalia-South, and Saxony, insofar as these cases are not taken care of by the first (A II and A VI) or the second senate (B III).

G

Impeachment for failing to report a crime to be dealt with by the senate, competent for the crime involved.

H

If a defendant is accused of high treason or treason against his country, the assignment is to be determined by the accusation of treason, if this is not irrelevant.

Favoring the enemy by treasonous activities, defeatism, undermining of morale, or evasion of military service does not bear any influence on the assignment.

Interrelated cases may be handled by one single senate in agreement with the other senates involved. Cases of nonagreement are to be submitted to me.

J

For charges, entered before 1 April 1944 the former plan of distribution of work applies, however, I wish to be notified by 1 June whether and which of these accusations are not yet settled.

Berlin, 1 April 1944

Dr. Freisler

TRANSLATION OF DOCUMENT NG-157

PROSECUTION EXHIBIT 103

LETTER FROM THE REICH MINISTER OF JUSTICE TO THE PRESIDENT OF THE PEOPLE’S COURT, 18 OCTOBER 1944, COMMENTING UPON ITS FUNCTIONS AND THE SELECTION OF PRESIDING JUDGES “IN PARTICULARLY IMPORTANT POLITICAL CASES”

[Handwritten] MIi Berlin, 18 October 1944 [Handwritten]T 276

Copy

The Reich Minister of Justice

To: The President of the People’s Court, Dr. Freisler

Berlin W 9

Bellevuestrasse 15

[Handwritten] 18 October Bz

Dear Mr. President:

The importance of the People’s Court for the maintenance of the home front has greatly increased and is bound to increase still further after carrying into effect of the Fuehrer’s decree of 20 September 1944. The functions of the People’s Court must, therefore, not be confined to meting out adequate punishment to the accused, they must moreover fulfill the specific task of political leadership.

This is inherent in the fact that the population not only recognizes the sentences of the People’s Court as right, but that, moreover, it also learns why any particular sentence has become expedient.

The President of the senate is often hampered in conducting the proceedings, because in some particularly important political cases—including cases occurring frequently—the political evaluation of the offense is not always sufficiently shown up with a view to the prevailing situation of the people and of the Reich. If it is sufficient in nonpolitical criminal cases to show up the perpetrator, the deed and the effects of both on the national community and thus to find a just sentence, this is not sufficient for cases tried in the People’s Court. With due stress for the political aspect of the case it is necessary to discuss the conditions of the Reich and of the people. When conducting proceedings the president must be able to justify why this particular offense is especially dangerous for the population and the Reich and why it is especially grave. Everybody who is taking part in the proceedings must have the inner conviction when leaving the courtroom not only that the punishment was just but also why it was just. This also and quite particularly applies to the so-called cases of defeatism which from now on will be tried in an increased measure. Likewise, utterances must not be allowed to spring up which, for instance, say that proceedings before a certain senate mean certain death, or that the term “general public” is stretched too far in its legal definition. Whenever such utterances occur they can only be parried by a manner of conducting the proceedings which is superior, calm and—if need be—stone cold. In that case the people must always understand why in these crucial months of the war the instigator deserves death—but not so the gossip monger unless it happened not to be merely silly gossip but a gossip which became dangerous because it was unscrupulous.

The above applies in corresponding measure to all other cases tried before the People’s Court.

I, therefore, would like to ask you, Mr. President, to make a special endeavor especially that only such judges will preside in particularly important political cases, who master the material involved also along political lines and who warrant that they are able not only to pass just sentences but also by their manner of conducting the proceedings to convince those present of the correctness of the sentence. If any difficulties as to personnel should occur here, please let me have your oral report.

Heil Hitler!

Yours

Dr. Thierack

5. HEREDITARY HEALTH COURTS[137]

PARTIAL TRANSLATION OF DOCUMENT NG-715

PROSECUTION EXHIBIT 112

LAW OF 14 JULY 1933 FOR THE PREVENTION OF PROGENY WITH HEREDITARY DISEASES (GESETZ ZUR VERHUETUNG ERBKRANKEN NACHWUCHSES)

1933 REICHSGESETZBLATT, PART I, PAGE 529

The Reich government has enacted the following law, which is promulgated herewith:

Article 1

1. Whoever is afflicted with a hereditary disease can be sterilized by operation, if according to experience of medical science a hereditary impairment of his progeny, either physical or mental, is to be expected in all likelihood.

2. Whoever suffers from one of the following diseases is afflicted with a hereditary disease according to this law—

(1) Hereditary imbecility.

(2) Schizophrenia.

(3) Circular (manic-depressive) psychosis.

(4) Hereditary epilepsy.

(5) Hereditary St. Vitus’ dance (Huntingtonian Chorea).

(6) Hereditary blindness.

(7) Hereditary deafness.

(8) Bad hereditary physical malformation.

3. Any person suffering from chronic alcoholism can also be sterilized.

Article 2

1. The right to file such an application rests with the person to be sterilized. If he is incompetent or has been put under tutelage because of feeble mindedness or being under 18 years of age, this right rests with the legal representative and is subject to approval by the court of guardianship. In all other cases of limited competence, the consent of the legal representative is needed for the application. In case an adult person has been under guardianship, the guardian’s consent is mandatory.

2. A certificate of a physician, approved in Germany, has to be attached to this application, stating that the person to be sterilized has been familiarized with the meaning and the consequences of a sterilization.

3. The application can be rescinded.

Article 3

Sterilization can also be proposed by—

1. A public health officer.

2. The superintendent of a hospital, sanatorium, asylum, or of a penitentiary for its inmates.

Article 4

The application is to be made in writing and is to be submitted to the attention of a hereditary health court. The facts, upon which this application is based must be corroborated by a medical expert opinion or in some other way. The office [of the hereditary health court] must inform the public health office of this application.

Article 5

The hereditary health court of the district where the person to be sterilized resides has jurisdiction over the decision.

Article 6

1. The hereditary health court is to be affiliated with a local court. It is composed of a local court judge as president, a public health officer and another physician approved in the German Reich, with expert knowledge of matters pertaining to eugenics. A deputy is to be appointed for each member.

*******

Article 10

1. The higher hereditary health court is to be affiliated to a district court of appeal covering the same district. It consists of a member of the district court of appeal, a public health officer and another physician, approved in Germany, with expert knowledge of matters pertaining to eugenics. A deputy is to be appointed for each member. Article 6, paragraph 2 applies accordingly.

*******

3. The decisions of the higher hereditary health courts are final.

Article 11

1. The operation necessary for the sterilization is to be performed only in a hospital and by a physician approved in Germany. He can perform this operation only after the decree for sterilization has become valid. The supreme provincial authority will appoint the hospitals and physicians authorized to perform the sterilization. The operation is not to be performed by the physician who made the application or who was a member of the board during the proceedings.

Article 12

1. Once approved by the court, this sterilization has to be performed even against the will of the person to be sterilized, unless he made the application himself. The public health officer has to arrange the necessary measures with the police. Direct force may be used if other measures do not suffice.

2. If circumstances demand a re-examination of the facts, the hereditary health court has to reopen the case and to suspend the sterilization order temporarily. In case of a rejection of the application a reopening of the case is permissible only if new facts have appeared which justify the sterilization.

*******

Berlin, 14 July 1933

The Reich Chancellor

Adolf Hitler

The Reich Minister of the Interior

Frick

The Reich Minister of Justice

Dr. Guertner

PARTIAL TRANSLATION OF DOCUMENT NG-715

PROSECUTION EXHIBIT 112

EXTRACTS FROM DECREE OF 5 DECEMBER 1933 FOR THE EXECUTION OF THE LAW FOR THE PREVENTION OF PROGENY WITH HEREDITARY DISEASES

1933 REICHSGESETZBLATT, PART I, PAGE 1021

*******

Section 1

(Concerning article 1, paragraphs 1 and 2 of the basic law)[138]

A condition for sterilization is that the disease, although only temporarily manifested from a latent tendency, has been established beyond any doubt by a doctor approved by the German Reich.

*******

Section 3

(Concerning Articles 3 and 4)

*******

If an approved doctor in the course of his official activity learns of a person suffering from a hereditary disease (art. 1, pars. 1 and 2) or from chronic alcoholism, he must report this without delay to the competent district public health officer using the form printed as supplement 3 (p. 1024). Other persons who are concerned with the treatment, examination, or advising of sick persons, have the same obligation. In the case of inmates of institutions, it is the head of the institution who has the duty to report the case.

*******

Berlin, 5 December 1933

The Reich Minister of the Interior

Frick

The Reich Minister of Justice

Dr. Guertner

PARTIAL TRANSLATION OF DOCUMENT NG-715

PROSECUTION EXHIBIT 112

THIRD DECREE FOR THE IMPLEMENTATION OF THE LAW FOR THE PREVENTION OF PROGENY WITH HEREDITARY DISEASES, 25 FEBRUARY 1935

1935 REICHSGESETZBLATT, PART I, PAGE 289

*******

Article 4

Authorized persons and counsel can be barred from appearance before the hereditary health courts and higher hereditary health courts for important reasons; this decision is uncontestable.

*******

Article 12

1. The Reich Minister of Justice determines the location and the district of the court which is to render the decision, and the number of court chambers to be established. He may transfer the exercise of this authority to the presidents of the district courts of appeal.

2. The hereditary health courts are to be regarded as parts of the local courts, and higher hereditary health courts are to be regarded as parts of the district courts of appeal, with respect to administration and official supervision.

3. The president of the district court of appeal determines the number of medical members and deputies of the hereditary health courts, as needed.

*******

Berlin, 25 February 1935

The Reich Minister of the Interior

The deputy: Pfundtner

The Reich Minister of Justice

The deputy: Dr. Schlegelberger

The Reich Minister of Labor

The deputy: Dr. Krohn

TRANSLATION OF DOCUMENT NG-346

PROSECUTION EXHIBIT 101

CIRCULAR OF THE REICH MINISTRY OF JUSTICE TO ALL PRESIDENTS OF THE COURTS OF APPEAL, 11 MAY 1936, ANNOUNCING COURSES FOR JUDGES DEALING WITH HEREDITARY DISEASE CASES

The Reich Minister of Justice

No. 6234-IV. b 472

Berlin W 8, 11 May 1936

Wilhelmstr. 65

A1 Jaeger 0044

To: All Presidents of the Courts of Appeal

Subject: Courses for judges dealing with hereditary disease cases

It is intended that during the second half of the month of June courses will be held in Berlin and Munich to train presiding judges of the courts and courts of appeal dealing with cases of hereditary diseases in matters of the marriage health law. The course in Berlin will probably take place between 15 and 17 June and the course in Munich between 22 and 24 June. In order to save expenses, only the presiding judges of the courts and courts of appeal dealing with cases of hereditary disease will be admitted to these courses, but not their deputies. The course in Berlin is intended for the judges of the district courts of appeal of Berlin, Brunswick, Breslau, Celle, Dresden, Duesseldorf, Hamburg, Hamm, Jena, Kassel, Kiel, Koenigsberg Pr., Marienwerder, Naumburga. S., Oldenburg, Rostock, and Stettin. The course in Munich is intended for the judges of the courts of appeal in Bamberg, Darmstadt, Frankfurt/Main, Karlsruhe, Munich, Nuernberg, Stuttgart, and Zweibruecken. The nonresident participants will have their traveling expenses refunded in accordance with paragraph II of the traveling expenses law. The expenses will be paid by the director of the office to which the official belongs. The amounts paid are to be recorded under chapter 4, title 25 of the budget. Please inform me of the names of the participating judges by 31 May 1936.

An opportunity for a discussion will probably be given on the last day of each course. During the course of these discussions questions may be raised concerning the marriage health law and the law on prevention of progeny with hereditary disease. In consequence of the large number of participants it is however necessary that each judge who wishes to discuss a question will submit it in triplicate directly to us (Berlin W. 9, Vosstrasse 5, Office b) not later than 31 May 1936. If several questions are submitted a separate sheet is to be used for each question. In the case of medical questions a summarized statement of the case is to be attached, if possible; in other cases it is also advisable to state briefly which particular case led to the question. The name, official position, and the court of the judges should be marked at the top of the page on the left hand side.

Enclosed are copies for the presidents of the district courts and for the presiding judges of the main hereditary health courts.

Deputy

Certified [Signed] Dr. Volkmar

[Signature illegible]

Clerk

[Stamp: Reich Ministry of Justice]

TRANSLATION OF DOCUMENT NG-789

PROSECUTION EXHIBIT 432

ANNOUNCEMENT BY THE REICH MINISTER OF JUSTICE, 17 DECEMBER 1943, CONCERNING THE APPOINTMENT OF A REFERENT WITH THE DUTY OF TRAINING JUDGES AND OTHERS IN A RACIAL, HEREDITARY, AND CRIMINOLOGICAL-BIOLOGICAL LINE OF THOUGHT

[initials] Kle [Klemm]

Internal Regulation

Reference: The consideration of racial, hereditary, and criminological-biological [kriminalbiologische] viewpoints in educational questions

With regard to the necessity of putting more emphasis on the racial, hereditary, and criminological-biological viewpoints in connection with educational questions within the meaning of my internal regulation of 12 June 1943—1200 E—Ip 2 340—Oberlandesgerichtsrat Meinhof, without prejudice to his sphere of office in department VI, is also assigned to department II as Referent.

The range of his duties comprises—

The training of judges, public prosecutors, jurists, and other officials, as well as of the entire new generation in a racial, hereditary, and criminological-biological line of thought.

Berlin, 17 December 1943

Dr. Thierack

1200 E—Ip 2 383

[Handwritten] Adjutant Klemm

TRANSLATION OF KLEMM DOCUMENT 58

KLEMM DEFENSE EXHIBIT 58

DECREE SIGNED BY DR. CONTI[139] AND DEFENDANT KLEMM, 14 NOVEMBER 1944, TEMPORARILY SUSPENDING ACTIVITIES OF HIGHER HEREDITARY HEALTH COURTS, AND AUTOMATICALLY LEGALIZING PENDING CONTESTED DECISIONS

1944 REICHSGESETZBLATT, PART I, PAGE 330

Seventh decree concerning the execution of the law for the prevention of progeny with hereditary diseases

On the basis of Article 17 of the law for the prevention of progeny with hereditary diseases of 14 July 1938 (Reich Law Gazette I p. 529) in combination with the decree of the Fuehrer concerning the total war effort of 25 July 1944 (Reich Law Gazette I p. 161) it is decreed in agreement with the Reich Minister and chief of the Reich Chancellery, the chief of the Party Chancellery and the Plenipotentiary General for the administration of the Reich:

Article 1

(1) The higher hereditary health courts discontinue their activity temporarily—for the duration of the suspension the definite decision is with the hereditary health courts.

(2) A trial pending in the higher hereditary health courts ends with the coming into effect of this decree. With the termination the contested decision becomes legal. The hereditary health court investigates officially, whether a resumption of the proceedings according to article 12, paragraph 2, of the law for prohibiting carriers of inherited diseases to reproduce is ruled in consideration of the terminated proceedings.

(3) Paragraphs 1 and 2 are not valid for cases in which the higher hereditary health court has already passed a resolution at the time when this decree came into effect and has merely not yet delivered it.

Article 2

This decree goes into effect on 1 December 1944.

Berlin, 14 November 1944.

The Reich Minister of the Interior

As deputy: Dr. L. Conti

The Reich Minister for Justice

As deputy: Klemm

6. CIVILIAN COURTS MARTIAL

PARTIAL TRANSLATION OF DOCUMENT NG-715

PROSECUTION EXHIBIT 112

DECREE OF 15 FEBRUARY 1945 ON CIVILIAN COURTS MARTIAL PROCEDURE

1945 REICHSGESETZBLATT, PART I, PAGE 30

The seriousness of the fight for existence of the Reich demands of every German determination to fight to the last, and devotion to the utmost. Whoever tries to withdraw from his duties towards the common cause, especially if it is done through cowardice or for personal profit, must at once be called to account with the necessary severity, so that the State will not suffer damage through the failing of one single person. Therefore, the following has been decreed upon the order of the Fuehrer in agreement with the Reich Minister and chief of the Reich Chancellery, the Reich Minister of the Interior and the chief of the Party Chancellery:

I

Courts martial are to be established in Reich defense districts which are menaced by the approach of the enemy.

II

1. The court martial consists of a judge of a criminal court as president and a member of the Leadership Corps [of the Nazi Party], or a leader of a unit affiliated with the National Socialist Party, and of an officer of the armed forces, the Waffen SS [armed SS] or the police, as associate judges.

2. The Reich defense commissioner appoints the members of the tribunal and designates a state attorney as public prosecutor.

III

1. The courts martial have jurisdiction for all kinds of crimes endangering the German fighting power or undermining the people’s fighting strength and will to fight.

2. For these proceedings, the regulations of the code of criminal procedure will be applied.

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 commissioner is required. He gives orders for the time, place, and kind of execution.

2. If the Reich defense commissioner is not available, but the immediate execution is indispensable, the public prosecutor is authorized to act in his place.

V

The necessary regulations for amendment, changes and execution of this decree are issued by the Reich Minister of Justice in agreement with the Reich Minister of the Interior and the chief of the Party Chancellery.

VI

This decree goes into effect immediately upon its promulgation over the radio.

Berlin, 16 February 1945

The Reich Minister of Justice

Thierack

D. Expert Opinion by Defense Witness Professor Jahrreiss concerning the Development of German Law

EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS PROFESSOR JAHRREISS[140]

DIRECT EXAMINATION

Dr. Schilf (counsel for defendants Klemm and Mettgenberg): Professor Jahrreiss, may I ask you to tell us your name, your profession, and your residence.

Witness Jahrreiss: Professor at Cologne University; at present on the staff of editors of the record of IMT. Do you also wish me to name my residence, Counsel?

Q. Yes.

A. At this time, in Nuernberg. I was born at Dresden; the date of birth is 19 August 1894.

Q. So that I can afford the Court the opportunity to acquaint itself with your particular research field, may I ask you briefly to describe to us your field of research as professor of law.

A. My work since 1923 has dealt with the fields of constitutional law, international law, and the law by the League of Nations, general constitutional law, and philosophy of law.

Q. May I ask you, just by way of example, to mention your own publications—those of a scientific nature.

A. Well, that is rather a lot; but publications which concern this subject here, I could mention—Law and Calculability, on the foundations of law and state; another publication on The Relation of the Constitution of the Reich to the League of Nations; then in the textbook which Anschuetz and Thoma edited on German Constitutional Law, my work about The Equality of the Citizens before the Law; and above all, my own version of The German Constitutional System, of the year 1930.

Q. Concerning the first problem, the German constitutional law, that is the subject on which I wish to start. My first question will open the direct examination. Is it correct that Hitler in the order of the so-called Third Reich was the supreme law giver?

A. Yes, that is correct, although that was not so from the very beginning of that era. That only happened in the course of events. But at the latest, if you’d like me to mention a date, that occurred when the offices of Chancellor and Reich President were united in him; that is to say, 1 August 1934.[141] That is the latest date.

Q. It was like this then—Hitler’s authority developed gradually until it reached its final culmination?

A. Yes, that is correct. If I may add this, one must say that the development under Hitler followed a development which occurred prior to his own era.

Q. Do you mean to say by that, that 30 January 1933 did not bring about a complete break of the development prior to Hitler?

A. Yes, that is what I would say.

Q. Do you also mean to say by this that the so-called change-over, that is the seizure of power by the National Socialist Party, was legal?

A. That is a very difficult question. First of all it is difficult because one would have to say in greater detail what events represented the change-over, whether one adheres to the formation of the government on 30 January 1933, or whether one discusses the enabling act, promulgated on 24 March 1933,[142] or how far altogether one wants to extend the events of the change-over. I can only answer conditionally. If one considers only the formation of the government, that is to say the act of entrusting Hitler with the Chancellorship on 30 January 1933, and if by “legal”, one means the purely outward formality, then it cannot be denied that the operation was carried out legally, namely, under Article 53 of the Weimar constitution,[143] according to which the Reich President forms the cabinet, and the Parliament—the Reichstag—only afterwards has the opportunity to have a destructive influence on the formation of the cabinet. Under the Weimar constitution, the Reichstag does not form the cabinet alone or together with another organ, but the President does that. The other organ is immediately elected by the people of the Reich. That is why the Weimar constitution contains quite rightly article 54[144] which incorporates the parliamentary system by establishing the institution of the vote of nonconfidence and entrusts the President with the formation of the cabinet. Yes, in fact one has to say a little more. In the formation of the government, the appointment of the Reich Chancellor is the sole act of the President; side by side with, let us say, the dismissal, with which the countersignature of the Chancellor is purely formal.

In the development of the Weimar constitution, after initial wavering, there evolved the principle that the new Chancellor appointed or signed the dismissal of the old Chancellor and his own appointment, which is really illogical. I don’t think there is any need for me to explain that any further. But as the Weimar constitution in Article 50[145] provided that every provision made by the president should be countersigned by the Reich Chancellor, or one of the Reich ministers—at least one—one was compelled to have even the appointment of the new Chancellor countersigned. That means naturally for the new Chancellor that he drags himself out of the mire by his own efforts. Counsel, if your question refers to 30 January—formally the procedure was orderly; a great deal more difficult is the question concerning the Reich law of 24 March 1933, that famous law [the Enabling Act], the validity of which was doubted so much; it is much more difficult to answer if your question refers to that. That law has as its main contents—I can almost say with a little exaggeration—the elimination of the division of powers. Three provisions or groups of provisions of the Weimar constitution are excepted, but for the rest the government could now promulgate laws even if that meant changing the constitution of the Reich; for the normal life of the people, legislators, and supreme administrators are one and the same thing. That is a basic change of the entire structure of the Weimar constitution. And I can say frankly if I, during the first years of the Weimar constitution, as an expert on constitutional law, had been asked whether the Reichstag, even if there was a majority, could not change the constitution under article 76[146]—if the Reichstag would make such decisions, could pass a law which, in effect, eliminates the Reichstag,—if I had been asked such a question I would have said there is nothing about that in article 76 that restricts the passing of such laws; but there is not only legality, there is also legitimacy in every constitution; there are certain basic decisions contained in any constitution which one cannot abandon without the entire losing of his character. But I must say the German science of constitutional law, particularly in the person of the most fanatic champions of democracy, did not take that point of view. Gerhard Anschuetz, who if it is permitted to say anything like that about a republic, was the crown jurist of the Weimar republic, wrote the commentary to the constitution of the German Reich which is the authoritative commentary. Gerhard Anschuetz whose last position was that of professor at Heidelberg, was, I might say, a temple guard of the Weimar constitution, and if he only thought an attempt had been made to shake the foundations of democracy, perhaps by creating a group of judges who could have reviewed decisions by the Reichstag, he would have been furious. I must say that because only now it becomes understandable what authority Anschuetz’ opinion carried, which was concurred in by all German constitutional lawyers, that there were no limits for article 76, concerning the amendment of the constitution. Anschuetz stated repeatedly that the Reichstag, with the majority that can amend the constitution, could abolish the republic, the federal state, democracy, even basic laws. No judge was entitled to doubt the constitutional validity of such a law. If previously I said that concerning that law of 24 March, one might have legal misgivings, I had something different in mind. I believe if I had been the President of the Reich, and if I had had the knowledge of the events, I would have refused to issue that law and to promulgate it, for it is the Reich President who has to examine whether the law has come about in a constitutional manner. I am convinced, however, that on no account procedures can be constitutional when the majority present, that is, the majority which passes the resolution, did not constitute the majority of the Reichstag as elected [by the people] but constituted the majority of a Reichstag that had been curtailed by the executive. Much has been said about that, and there is something else that enters into that question, and I have to say that quite openly that has not been discussed before. At that session at which the Reichstag passed that law which changed the constitution, the Reich Chancellor felt that the Reichstag might make difficulties, and he threatened with revolutionary forces; but even that doesn’t help and, particularly, it doesn’t help according to Anschuetz. Anschuetz and [other] German experts on constitutional law consistently upheld the view that the assurance of the Reich President, given by his signature, that the law had been passed in an orderly manner excluded all scrutiny. Therefore, we have to say, under objective law there may be misgivings, serious misgivings about that procedure, but according to what at the time was the guaranteed practice of constitutional law which was upheld by the opinion of the most fanatic upholders of the Weimar constitution, the signature by the Reich President excluded any scrutiny as to whether the law came about in an orderly manner. I believe that I have now indicated that the question for the so-called legality of the change-over, even purely formal, is very difficult to answer, but for the rest it seems to me that this is only an argument about words; [actually, it was] a revolution, and it was meant to be a revolution. Hitler even thought it was the only real revolution. And according to its aim and meaning it [i.e., a revolution] cannot be legal; but in any case, if it comes off—that is how it always will be in the world of states—it provides the soil on which the new order, slowly or more quickly, evolves, according to custom, and custom after all is the source of all law.

Q. Professor, we are particularly interested to explain to the Tribunal the constitutional status of the so-called Hitler decrees. May I ask you, now that you have answered the question of legality on the one hand and theories of legitimacy on the other hand, would you now, from the developments, explain the constitutional status of the Hitler decrees within the meaning of my first question as to whether he was supreme legislator of the Reich.

A. I am afraid I shall have to go back a bit for that because that question really concerns the entire question of the so-called constitution of the Third Reich. Even for many a German, Hitler’s authority is a mystery, but it must be that for all those who are not Germans. Many misunderstandings which I encounter again and again in conversations are due to the fact that certain unavoidable factors which are involved in any ruling, are ascribed to Hitler’s regime. A further difficulty consists in the fact that the peculiar constitutional insecurity in which most of the states in Europe have lived for many years, from the point of view of their constitution, produces phenomena which do not restrict themselves to Hitler’s regime, but only appeared there particularly clearly. But above all—because otherwise I cannot provide you with the background—I should like to explain that a little further to the Tribunal—above all, there is considerable ignorance about certain peculiarities of the German situation, in particular concerning the constitution. I believe I may say without encountering any contradiction that in this courtroom jurists are fighting for clarity among themselves which belonged to various schools of legal thought. Above all, there is between the European continental states and their constitutional and legal thought on the one hand and the Anglo-Saxon legal thought, as far as I understand it, a great difference which cannot be overestimated. On the continent of Europe, in the course of four centuries, a development has taken place by which law and morality in legislative thought are separated sharply; and so as the question of morality arises, the lawyer on the continent of Europe says as a lawyer, “That has nothing to do with me. That may be regrettable, and I myself do think it is regrettable, but after all, that is the historical reality.” How far that development goes, I can show to the Tribunal by giving an example which perhaps is the most important, and again that concerns the opinion of Gerhard Anschuetz concerning article 102 of the constitution[147] as to whether the courts in Germany concerning the validity of the law passed by the Reichstag are entitled to doubt it for ethical reasons. I quote—this is in the commentary of the 14th edition, page 476—“If it cannot even be conceded that the judge is entitled to examine the law as for its being constitutional or not, so it can be conceded even less that he may refuse obedience to a law which was passed constitutionally because according to his opinion concerning certain standards which again according to his opinion are above the legislator, that is to say, morality, ethics, natural law, they contradict these points or because they cannot stand up to certain evaluations.”

I had to read this out verbatim. Therefore, it was rather difficult for the interpreter because of the position of the verbs.

The reason for that situation in Germany, which is a situation that applies to the whole of Europe, is this—and I now have to broach a subject, the effect of which did not affect England or the United States. The state of the European continent came into existence from the fragments of the Corpus Christianum of western Europe. The break of the medieval realm is the soil on which the modern sovereign states grew. These states starting with Italy believe ever more strongly in the idea that they are sufficient to themselves, that they can live by their own efforts, that they are under no obligation to the past or to the future. The state becomes a purpose to itself. That has been emphasized again and again, and that development goes on from Macchiavelli, the great Florentine; Jean Bodin, the great Frenchman; and as far as Hegel, the great German. As a result, ethical evaluations may be made by the legislator, parliament, or the monarch, but the resolution passed by the monarch or parliament deprives those who are governed by these laws of all right of objection.

May I draw the attention of the Tribunal to one event that occurred under the Weimar constitution. During the first years of the republic it became known among the public that Berlin was thinking of forbidding any revalorization [or revaluation— Aufwertung] by law.[148] The judges of the Reich Supreme Court of Leipzig at that time formed their own association, and that association of judges, in view of that rumor, held a meeting and passed a resolution to the effect that if such a law were to be promulgated, they would refuse to apply it. That happened in 1924, and it was emphasized that such a law would run counter to morality. There was a storm of indignation among the Reich government. The Reich Minister of Justice protested using very sharp expressions, and the Reich Supreme Court did not carry out its threats. However, in 1927 the Reich Supreme Court in a decision published in volume 118 declared—“The legislator in the autocracy is not bound to any other restrictions but those which he draws for himself from the constitution or from other laws.”

Now, I ask to be permitted to speak about a second point which concerns only Germany, at least to that extent. It is easy to forget that the German people for 33 years have never had really normal conditions. If one looks at that from the human point of view, it means that about 50 age-groups of German people—that is more than two-thirds—50 age-groups of people have never seen normal conditions; that is, all the people who were born after 1914, and those who, before 1914, did not have any conscious experiences. For all these people, life—and that was the normal thing for them—was a continuous change from open to latent crisis. One was always exposed to danger and always with a longing for stable conditions. The consequence is that for most Germans, order, which deserves that name, is something hard to imagine. To the German people order has become to mean something transitory, something unstable, something upon which one cannot depend, and doubtless it did not contribute to the stabilization of legal thought that, beginning with the time of the Weimar republic the machinery of legislation was running incredibly fast. I would, indeed, desire for the judges [of this Court] to see the maze of decrees and laws published and showered upon the German people since 1919. Most of those were laws or paragraphs of short existence. We had real inflation of legislation, as far as I know, in history without example at any other period. And that was not only so during the Weimar era, it became worse indeed during the period of the Third Reich. Before Hitler came [to power] he turned with strong criticism against that positive manufacturing of laws. In his opinion, only the “sound sentiment of the people” should find its inclination in laws. But when he was in power, the machinery, if this was possible, then was in even higher gear.

I believe that I do not have to credit it to my own inefficiency but I have to believe that no German jurist can say anything else of himself, but, none of us were in a position to know all the headlines of all the laws and decrees that have been passed. With things as they were, one has to understand that a large portion of the German nation, many jurists among them, became tired and apathetic toward authority, and skeptical. And on the other hand it could not be avoided that many impulsive individuals revolted, wanted to take action, wanted to do something about it, wanted to come to a decision, to a clarification, to a simplification, to find a way to see through all that.

In our era—at least one can say that for Europe—the political disease of fanaticism and doctrinism has broken out; tolerance became more and more rare; each single technical question was tainted with the question of religious allegiance. Under these circumstances, one can easily obtain a picture of the chaotic condition of legal thinking; small wonder that a state, to see to it that laws once decreed have to be carried out by the authorities, demanded particular emphasis because otherwise not even the minimum of order could be guaranteed which was at most possible. Particularly because the entire situation, the entire atmosphere was so unstable. The essence that “an order is an order” had to become the last refuge of those actually in power.

And now, a last part of it. Inflicted against this background of all that we find in the constitution which, on paper, perhaps structurally is the most sympathetic, the most logical democratic constitution of the world, with a tremendous, carefully thought-out system of checks and balances, safety valves in order to assure that the individual citizen would be the one to have its full advantage. But that constitution was worked through elaborately, and I say openly, that my determination to study constitutional law was in part based on that constitution which enthused me as a young man; this constitution, at the same time, was very complicated in its structure, its structural power and in legislative procedure.

With the permission of the Tribunal I shall try to explain that life itself demanded to have these matters simplified—rather less artistry but more efficacy. With that I believe, in all brevity, to have said something of that which is absolutely necessary to know if one wants to understand the essence of the Weimar constitution and its development which, long before Hitler, had led to a situation which does not permit to recognize any longer the situation of 1919.

*******

In German we call a law which was brought about by the legislative authority, a law in the formal sense. And the basic thought for all, which is to be found in all European constitutions, is this. If the government wants to, let us say, increase taxation, then that means it wants some acts of legislation which authorize the authorities, or the various agencies, to interfere with property. The government, therefore, wants a law in the material sense; therefore it must have a law in the procedural sense or in the formal sense, through legislation. That is what we call the principle of the necessity of the law, the fact that a law is required. Where this is brought about, we have a division of power. And if it were brought about—and it has never actually been carried out—then this is the way it would have to come about. The legislative body then would have to make all substantive laws, but it would do nothing but just that.

Both these cases do not apply. Parliaments, time and again, are given the privilege or the right to come to resolutions or decisions which have different content, for example, decisions on budget. These decisions on budget are not acts of legislation in the sense of setting standards. In German constitutional law it is definitely prohibited to include into the budgets acts of legislation or standards in that sense. The Parliament has a part in the forming of the cabinet. That is one thing. The other—and this is what we need—is the following. It may happen that the government is authorized to enact legislation by virtue of the constitution itself, or by virtue of later laws passed by the parliament. In German one calls these acts of rule making [Akte der Normsetzung] of the government, that is of the executive—which have a legal maxim as content—legal decrees [Rechtsverordnungen]. “Legal” on account of their content, and “decrees” on account of the method.

This institution, which we find in every European state, was the starting-point for the further development and the paving of the way of the orders by Hitler, because in the Weimar constitution there is a law for the government to decree laws, the utilization, or I should say the exploitation of, which led to the fact that since the middle of 1930 the normal legislative body in Germany was really the government. That is the famous provision of article 48, paragraph 2. As a rule, legal decrees on the basis of this article are called dictatorial decrees, but also apart from that during the Weimar era, much authority was received for the government to issue decrees. In countless laws the Reichstag empowered the government, in order to carry out a law, or in some cases in order to amend a law or repeal a law, to issue legal decrees.

However, not only in the Reich do we find this institution or this instrument of legal decrees, but also in the German states, the German Laender. In the constitution one always finds a [provision concerning the] right to issue emergency decrees (Notverordnungsrecht) and the legislatures of the various states frequently authorize the [state] government to issue decrees in regard to substantive law.

A law of the Reichstag of 13 October 1923, which is called Enabling Law, “Ermaechtigungsgesetz”, signed by Reich President Ebert, conferred upon the Reich government the power, among other things, to issue decrees in regard to substantive law, even deviating from the legal principles of the constitution of the Reich. This law is particularly important. It was published in the first years of the Weimar constitution under Reich President Ebert, and it cleared the way for a development which the founders of this law to this day probably regret deeply.

May I refer the Tribunal to the following:

Several months ago, in Munich, a book was published, “The History of the Weimar Constitution.” The author is Professor Willibalt Apelt, now at the University of Munich. We used to be together at the University of Leipzig, and I also had the honor to lecture for him in addition to my lectures when he became the Minister of Interior in Saxony; that is, the Police Minister.

He was one of the most outspoken democrats we had in Germany. This book throughout is a [settling of an] account [Abrechung] with Hitler. It altogether lauds the Weimar constitution, and therefore it is particularly important to note that Apelt considers this law the beginning of all the evil in this development and states explicitly that this law cleared the way to that other enabling law of 24 March 1933. * * * The date of the law is 13 October 1923. It appeared in the Reichsgesetzblatt of 1923, volume I on page 943. Since the middle of 1930 one did no more work with enabling law decrees, but one used article 48, paragraph 2. Earlier already that had been applied. If I am informed correctly under Ebert alone, 136 decrees of that kind were passed, that is to say, until 1925 when Hindenburg became President. At first a little less use was made of this means. It was reactivated again when the economic crisis of 1929 was nearing Europe. Conditions in Germany deteriorated from week to week, and under Bruening whole bundles of emergency decrees, of dictatorial decrees, were passed. In 1932 we had progressed so far in that direction that the Reichstag was practically excluded as a legislative body, and the Reich President, together with the Reich government (the Reich cabinet because according to article 50 they had to work together) was really the normal source of legislation. From then on until Hitler’s acts of legislation it is indeed only a short step, and if Hitler himself would not have set out to give the whole matter a triumphant dictatorial aspect, if he had been satisfied with an enabling act like that of 1923, if he had not had laws enacted by the government but decrees, the entire enabling act would not have caused so much rumpus as it did.

Q. Professor, may I ask you to explain briefly to the Tribunal who Reich President Ebert was, because we have to assume that the name alone does not give a plain indication. * * *

A. We had two Reich Presidents. The first, Friedrich Ebert, who came from the social democratic party of Germany, not elected by the people but by the national assembly, and then the second, von Hindenburg, who was elected by the people.

Q. And my second and other request is that you quote to the Tribunal article 48, paragraph 2 of the Weimar constitution.

A. Article 48, paragraph 2. Concerning the so-called dictatorial powers of the president—and with the permission of the Tribunal, I shall formulate these sentences linguistically in a way which make them easily translatable—“The Reich President may take those measures which are necessary to reestablish public security and order if, in the area of the German Reich, public security and order are considerably disturbed or endangered. If required, he may also intervene with the aid of the armed forces. For that purpose he is authorized temporarily to invalidate in whole or in part the basic laws which are laid down in the articles 114, 115, 117, 118, 123, 124, 153.”[149] May I add, these seven basic laws are the so-called “liberal principles,” [basic liberties], the same which we find, for instance, in the Constitution of the United States, the Bill of Rights.

Q. Professor, we are now concerned with an attempt to explain the Hitler decree to the Tribunal. After all we have heard from you now, the development which has led to it that the government governed by decrees rather than by legislation, that development started already as early as 1923, and according to the information we have from you was again stipulated in 1930 at the time of a different government. I think it will be necessary to explain to the Tribunal that this development led up to the Hitler decree; went through various stages of development, and I may ask you still to describe this to us, because in the course of this case it has become necessary that this development be shown asclearly as possible.

*******

The cabinet assumed responsibility [for all orders and directives issued by the Reich President] to the Reichstag by countersigning them, and the Reichstag could react rather disagreeably; the cabinet, if the Reich President and the Reichstag were of different opinions, was forced to make a decision. If the cabinet took the opinion of the Reichstag, then the Reich President either had to give in or change the cabinet; if the cabinet went along with the President, then nothing else was left than to risk the vote of lack of confidence; an essential vote of the Reichstag could lead, therefore, to a struggle of that kind, and in German practice the cabinet which went with the president against the Reichstag was called a “fighting government” [Kampfregierung]; not the other way around. In the long run it showed that the Reich President, when the Chancellor went with him, was stronger than the Reichstag. That also I may be permitted to describe briefly. If the Reichstag did not agree with the president, was not satisfied with the president’s decisions, it could not, properly speaking, do anything. Even though the constitution in article 43[150] reserved to the Reichstag the right to ask the people of the Reich that they demand the resignation or the dismissal of the president. That, in practice, never occurred, and for a very simple reason. If the Reichstag would have come to a decision of that kind, and the people would not have gone along, then that president would have been automatically reelected for another 7 years, and also, the Reichstag would have been dissolved, and that would mean suicide [for the Reichstag]. However, the president is in a much better position; if he is in agreement with the Chancellor, he can dissolve the Reichstag himself. That is where the famous red folder comes in.[151] If, therefore, the president and the cabinet are in agreement, and there is a threat of censure on the part of the Reichstag, then the president can turn over to the Reich Chancellor the order for dissolution [of the Reichstag]. The Reich Chancellor is present in the session, and when it comes to the last, he just shows that red folder and that settles the entire matter. Now, the Tribunal will certainly understand why in discussing article 48, paragraph 2, I did not even read paragraph 3,[152] because there it is expressed that the Reich President has to notify the Reichstag of every dictatorial measure and if the Reichstag wants it withdrawn, and the demands are made of the president, the president has to repeal his measures. If he and the cabinet do not wish to do that, they have the possibility of dissolving the Reichstag, and that brings me back to what I pointed out before. Maybe one cannot understand why the Reichstag permitted itself to be dispossessed, as far as legislation is concerned. It would have had to be made entirely different to be in a position to oppose due to the fact that the major change could not depend upon them. The Reichstag in every demand of repeal risked its own life.

*******

Perhaps at this moment I can jump ahead into the Hitler era. When the Hitler government had received the right to pass laws it no longer needed the Reichstag. If one wanted to use the Reichstag at all as a legislative body, one did so to save face. But, now the government did no longer make any suggestions as was, in former times, the normal procedure. The government was the legislator itself. But that way was chosen; a way, which during the Weimar era played no part.

Under Hitler the Reichstag since November 1933, consisted only of one faction. That is just as senseless as one party. This faction introduced a bill with the name of Adolf Hitler and three others. Frick, the faction chairman accomplished this, Goering acted surprised, being the president, and then, the whole game went on as you know it. That abnormal way, therefore, was chosen in order to stage the play. Now I go back to the Weimar era. As to whether the bill was introduced this way or that way, for the Reichstag, that was only raw material. It could say, “We will not do anything.” It could say, “We will pass it.” It could say, “We will change it.” If a bill is passed, it means that the bill is accepted or amended; then the Reich President received the law which was had been passed by the Reichstag for his signature. Signing a law, that meant as to whether the law was passed in the proper way, and as to whether the text which had been submitted to the president was actually the text which was passed under the law by the Reichstag. (It did, in effect, happen that other documents were submitted to him than those passed by the Reichstag, of course, by mistake. Next, the Reichsgesetzblatt had to publish it with a special wrapper in the changed form.) And when that happened, then, the president gave the order for promulgation. In Germany we usually call it promulgation, too. So far so good.

So much so good. But, now, it could happen that the Reich council or the Reich President with the consent of the government or the government with the consent of the president or some of the members of the Reichstag, itself, were dissatisfied with the law, and, in that case, the constitution provided that those unsatisfied persons or bodies could appeal to the people. That is very complicated, Your Honors, and I do not think that we need it for our purpose here. You will find it written down but I don’t think I need to elaborate on it here.

If such an appeal would have been made to the nation—it never happened, it got stuck in the beginning—then that had to be fought out at the time between signature and promulgation. But the constitution had provided for a special procedure, an act of absolute democracy became possible—the people of the Reich, that is to say, at least one-tenth of the whole electorate,—at that time, that was at least four million voters—could join together and demand that a bill which had to be drafted up to the very last [detail], was to be submitted by the Reichstag, and, in that case, the Reichstag was not as free toward the draft as in the other case. But it was under pressure of an ultimatum. It was only left with the choice either to accept it as it was or the government had to ask the nation. That was attempted a few times but it was never carried out properly.

I should assume that those remarks were sufficient to show to the Tribunal that on the one hand the Weimar constitution was very democratic, with the intent to protect the people and its rights; but that on the other hand the constitution was so complicated in the structure of the bodies and in the legislative procedure, that one need not wonder if an ever stronger movement urged for simplification. Furthermore, the constitution in itself had something unclarified, something provisional and that in severe respects and that always happens if a dualism is created; for every dualism of power endeavors at its own dissolution. * * * We had, furthermore, the small dualism between Reich President and Reich Chancellor; and, I haven’t mentioned that yet, there was the old grave German problem of dualism between Reich and Laender; all these various problems of dualism were urging for dissolution and they were in process of dissolution prior to Hitler. Hitler then completed that development. May I explain that in a few remarks?