Report on the conference of [court] presidents on 1 February 1939
Present: Senator Dr. Rothenberger, Attorney General Dr. Drescher, Vice President Letz, District Court Presidents Korn and Dr. Ruther, Bremen, Local Court President Dr. Blunk, Local Court Directors Schwarz, Boehmer, Hansen, and von Lehe, Senior Judges of Local Court Gersdorf and Stender, Chief Public Prosecutor Lohse, Bremen, Oberlandesgerichtsrat Dr. Segelken and the undersigned.[194]
Senator Dr. Rothenberger and the attorney general reported on the discussions at the meetings of the presidents of the courts of appeal and attorneys general with the Reich Minister of Justice.
Senator Dr. Rothenberger first asked for a report on the attitude of the judges with reference to the articles in the “Schwarze Korps” [Black Corps, official newspaper of the SS] before his speech on 28 January 1939, and wanted to know whether his address had put their minds at ease. With the exception of Wandsbek where the articles of the “Schwarze Korps” evidently were not noticed, it was the general opinion, expressed particularly by the district court president of Hamburg and Director Hansen, Altona, that the judges were actually extraordinarily disturbed by the attacks of the Schwarze Korps. The statements made by Senator Dr. Rothenberger have had a rather soothing effect since there was now some hope for improvement. However, there were doubts as to whether the Reich Minister of Justice would succeed in carrying his point against the Schwarze Korps i.e., the SS. These doubts were based especially upon the former passive attitude of the ministry.
I. The attorney general then reported on the penal development of the events of 9 to 11 November.[195] The former regulation according to which the State Police is the final authority in deciding whether or not such a case should be followed up, has been abolished following a decision by the Reich Ministry of Justice. The Reich Minister of Justice and Chief Public Prosecutor Joel have stated that it would, of course, be impossible to handle these things the normal legal way; if, at first, the law as such has been changed by order from higher authorities, then it would not be possible to prosecute those people involved in the perpetration. Therefore, by way of example the conception of violation of the public peace would have to be abandoned. This can be legally justified because the perpetrators lacked the knowledge of illegality since they acted on order. As far as the criminal offenses committed during the encounter are concerned, negligible acts should be disregarded. Otherwise, cases will be withdrawn, but only by order of the Fuehrer, while serious criminal offenses, as for instance rape and race defilement have to be prosecuted. The order for prosecuting will be issued in every case by the minister after, to begin with, the perpetrators in case they are Party members or members of a Party organization have been expelled by a special department of the Supreme Court of the Party which has been established in Berlin.
Goering had strongly disapproved of the events. In his opinion, it was the hardest blow the Party had ever received.
Comments concerning these events should not be prosecuted under the Heimtueckegesetz if they were occasioned by well founded protest.
Senator Dr. Rothenberger pointed out that nothing had happened in Hamburg, thanks to Gauleiter Kaufmann’s attitude which Ministerpresident Goering had expressly recommended. He asked for understanding in the attitude of the Reich Minister of Justice and to pass that understanding on to the judges.
As far as prosecution under the Heimtueckegesetz is concerned, because of comments about the events between 9 and 11 November, he stated that the court might find itself in the position where it would have to investigate the facts. Such cases would have to be reported.[196]
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