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.