“In penal matters for which the People’s Court, the superior district court, or the court of assizes are competent, preexamination is conducted upon application of the prosecution, if, after due consideration, the prosecution thinks it necessary.
“In other penal matters as well, preexamination takes place on application of the prosecution. The prosecution should make such an application only if unusual circumstances make it necessary to have a judge conduct such preexamination.”[640]
An illuminating comment on the law is made by a German text writer.
“A criminal case on which verdict has been passed must not again become the subject of another criminal proceeding. This exclusive effect pertains to the subject of the case both as regards the crime and the criminal. * * * According to the findings of the German supreme court and to the prevailing theory in accord with these findings, the effect of ne bis in idem includes the history of the case submitted to the court for verdict. * * * This theory, however, leads to unbearable consequences. In order to avoid these unbearable consequences some courts, recently, have permitted the breach of the principle against double jeopardy in exceptional cases where jeopardy of a second trial is necessitated by the sound sense of justice. * * *”[641]
On 21 March 1942 Adolf Hitler promulgated a decree regarding the simplification of the administration of justice. We quote the following excerpts:
“In penal cases, * * * the formal opening of the main proceeding must be eliminated. * * * (Sec. I.)
“Indictments and judicial decisions must be more tersely written by restricting them to the absolutely necessary. (Sec. II.)
“The cooperation of professional associate judges in judicial decisions must be restricted. (Sec. III.)
“I commission the Reich Minister of Justice, in agreement with the Reich Minister and Chief of the Reich Chancellery and with the Chief of the Party Chancellery, to issue the legal provisions necessary for the execution of this decree. I empower the Reich Minister of Justice to make the necessary administrative provisions and to decide any doubtful questions by administrative means. (Sec. VI.)”
On 13 August 1942 a decree was issued by the defendant Schlegelberger as Reich Minister of Justice in charge of the Ministry—