Hitler’s constitutional right to quash pending criminal proceedings [Abolitionsrecht] will be shown in its practical meaning.
Regarding the carrying-out of sentences we will deal with the legal provisions and the regulations applicable in penal institutions. The defense will prove that no crimes against humanity were committed in penal institutions of justice by its officials with the exception of occasional violations which are unavoidable even under the best directions. The rules of the strict legal provisions of the German Penal Law against the ill-treatment of prisoners will emphasize this point. The cases mentioned which date from the last days before the collapse offer, as a singular sign of that moment, no basis for a general judgment of the German execution of punishment and will be referred to as each individual case comes up.
The action of the Spruchrichter dealt with in the indictment and the charges raised in this connection will bring the legal position of the German judge up for discussion. We shall see the judge as an independent official who is not bound to directives but only to the law. We will discuss the positivism of the German interpretation of law. We will deal with the prosecution’s charges arising from the directing regulations. We will show that they are merely a reference to the motive and aims of the law in question, and that they, to some extent, give a clear conception of the policy of the legislator regarding crime. They are a clue to the way in which the legislator imagines punishment should be awarded by the judge. They are in no case a general directive or a directive pertaining to an individual case.
In dealing with the position of the public prosecutors we will refer to the principle of legality which is laid down by law, and according to which the public prosecutor was bound to prefer a charge as soon as there was sufficient suspicion that the criminal facts as laid down in a legal provision existed.
In conclusion the defense will also deal with the legal questions, arising from Control Council Law No. 10 itself. We know that the Tribunal has been called together in order to pass judgment on the basis of this law.
On the basis of this actual fact and in compliance therewith, we will for practical reasons refrain from repeating the relevant objections already raised in the proceedings before the IMT and other proceedings before similar Tribunals in session. On account of these considerations we will restrict ourselves to the real legal questions as to whether an indictment is permissible from the point of view of conspiracy in war crimes and crimes against humanity of Control Council Law No. 10. In this respect my colleague, Dr. Haensel, will provide detailed statements hereon in due course.
At the beginning of the evidence for the defense and in connection with the opening statements on behalf of the individual defendants, the defense intends to call in two experts for the legal questions of general interest, namely Dr. Jahrreiss, Professor of Public and International Law at the University of Cologne, and Dr. Niethammer of Tuebingen, formerly attorney at law, now Honorary Professor of Criminal Law and Criminal Procedure.
As far as documents being introduced with regard to the general questions discussed—
We will not be able to produce Dr. Jahrreiss at this time. Professor Jahrreiss cannot get away; he will only be available later on in July, and perhaps a suitable moment will come then when he can be examined when we have dealt with the cases of the officials of the Ministry of Justice.[72]
As far as documents being introduced with regard to general questions discussed, they will be handed over during the defense of the individual defendants. For the purpose of survey we will at the conclusion hand over the documents relative to a particular subject compiled in a special document book.