F. The Nazi conspirators restricted the independence of the judiciary and rendered it subservient to their ends.

The independence of judges, before the Nazi regime, was guaranteed by the Weimar Constitution. The fundamental principle was stated briefly in Article 102:

"Judges are independent and subject only to the law." (2050-PS)

Article 104 contained a safeguard against the arbitrary removal or suspension of judges, while Article 105 prohibited "exceptional courts". The fundamental rights of the individual are set out in Article 109 and include equality before the law. (2050-PS)

Like all other public officials, German judges who failed to meet Nazi racial and political requirements became the subject of a wide-spread purge. Non-Aryans, political opponents of the Nazis, and all persons suspected of antagonism to the aims of the Party were summarily removed (2967-PS). The provisions of the Law for the Restoration of Professional Civil Service of 7 April 1933 applied to all judges. This was declared expressly in the third regulation for the administration of the law. (2867- PS)

To make certain that cases with political ramifications would be dealt with acceptably and in conformity with Party principles, the Nazis granted designated areas of criminal jurisdiction to the so-called Special Courts (Sondergerhte). These constituted

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a new system of special criminal courts, independent of the regular judiciary and directly subservient to the Party (2076-PS). A later decree considerably broadened the jurisdiction of these -courts. (2056-PS)

In 1934, the People's Court was set up as a trial court "in cases of high treason and treason" (2014-PS). This action was a direct result of the dissatisfaction of the Nazi rulers with the decision of the Supreme Court (Rechsgercht) in the Reichstag fire trial. Three of the four defendants were acquitted although the Nazi conspirators had expected convictions in all cases (2967-PS). The law which created this new tribunal contained a wide definition of treason which would include most of what were regarded by the Nazis as "political" crimes (Art. 3 (1)). The express denial of any appeal from the decisions of the People's Court (Art. (2)) was a further indication of the intention of the Nazis to set up a criminal law system totally outside of accepted judicial pattern. The substantive organization of the People's Court was later established by law in 1936. (2342-PS)

These new tribunals were staled almost exclusively with Nazis and were used to tighten the Party's grip on Germany. This control became progressively stronger, due first, to the power of the prosecutor to pick the appropriate court; second, to the restriction of defense counsel in these courts to specially admitted attorneys; and finally, to the absence of appeal from the decisions of these judges. Moreover, there developed along side of the entire judicial system the increasingly powerful police administration, under which persons opposed to the regime were regularly imprisoned in concentration camps without any type of hearing, even after acquittal by the courts. (2967-PS)

Still another group of courts was established within the Party itself. These Party Courts heard cases involving internal party discipline and infractions of the rules of conduct prescribed for members of formations and affiliated organizations. The published rules for the Party judges emphasized the complete dependence of these judges upon the directions and supervision of their Party superiors. (2402-PS)

The Nazi legal theorists freely admitted that there was no place in their scheme of things for the truly independent judge. They controlled all judges through special directives and orders from the central government. Frank underscored the role of the judge as a political functionary and as an administrator in the National Socialist state (2378-PS). Two case histories of this period serve to illustrate the manner in which criminal proceedings were directly suppressed or otherwise affected by order of the Reich government.

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In 1935, the Reich Governor of Saxony, Mutschmann, attempted to quash criminal proceedings which, in this exceptional instance, had been brought against officials of the Hohnstein concentration camp for a series of extremely brutal attacks upon inmates. The trial was held and the defendants convicted, but during the trial the governor inquired of the presiding judge whether he did not think the penalty proposed by the prosecutor too severe and whether an acquittal was not indicated. After the conviction, two jurymen were ousted from the NSDAP and the prosecutor was advised by his superior to withdraw from the SA. Although Guertner, the then Minister of Justice, strongly recommended against taking any action to alter the decision, Hitler pardoned all the accused. (783-PS; 784-PS; 785-PS; 786-PS)

In another similar case, Guertner wrote directly to Hitler narrating the horrible details of maltreatment and advising that the case be regularly prosecuted. Nevertheless, Hitler ordered complete suppression of the proceedings. (787-PS; 788-PS)

Under the Nazi regime, it was part of the official duty of many Party functionaries to supervise the administration of justice. The official papers of Hess contain detailed statements concerning his own functions and those of the Gauleiter in deciding criminal cases. (2639-PS)

Another type of governmental interference in judicial matters is evidenced by the confidential letter which the Ministry of Justice sent in early 1938 to the Chief Justices of the Regional Supreme Courts (Oberlandesgerichtspraesidenten). The judges were instructed to submit lists of lawyers who would be sufficiently able and trustworthy to represent in court persons who had been taken into "protective custody". The main requirement was absolute political reliability. Simple Party membership was not enough; to be selected, the lawyer had to enjoy the confidence of the "Gestapo". (651-PS)

After the war began, Thierack, Minister of Justice, revealed the low state to which the judiciary had fallen under Nazis rule. He argued that the judge was not the "supervisor" but the "assistant" of the government. He said that the word "independent", as applied to the judge, was to be eliminated from the vocabulary and that although the judge should retain a certain freedom of decision in particular cases, the government "can and must" give him the "general line" to follow.

For this purpose, Thierack decided in 1942 to send confidential Judge's Letters (Richterbriefe) to all German judges and prosecutors, setting forth the political principles and directives with which all judicial personnel

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were obligated to comply (2482-PS). The first of these Judge's Letters clearly expresses the complete subordination of the judges to the Fuehrer and his government. (D-229)

The original plaintext version of part one or part two of this file is available via ftp.

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