10 September
2. Circulation—
Cabinet Counsellor Dr. [illegible]
Cabinet Counsellor v. Stutterheim
Cabinet Counsellor Dr. Ficker
3. To be filed.
Berlin, 5 September 1942
This report is strictly for the addressee personally and contains news material transmitted unreviewed in order to retain its character of fresh news.
ADMINISTRATION AND LAW
Reports on the Control of Penal Jurisdiction
Under the impression made by the Fuehrer’s Reichstag speech of 26 April 1942 and by the general criticism of penal jurisdiction, the former leadership of the Reich Ministry of Justice[255] had, according to additional clauses already previously existent, been persuaded to reinforce the so-called control of penal jurisdiction. This control consisted in an extensive participation of the Ministry and of the supervising judicial officials, and presidents of the district courts of appeal and of the district courts in the sentencing-activity of the individual criminal judge on the principle that, especially in criminal cases with a political implication, the judge must receive assistance when pronouncing a sentence. Actually, it involved then a substantial extension of the already existing consultative obligations of the public prosecutor to the Ministry and, on the other hand, the introduction of a consultative obligation in the relations of the courts to the Ministry as well. According to numerous reports from the whole territory of the Reich, these measures have met with an extremely dissentient reception among juridical circles. The complete break with the hitherto prevailing conception of judicial independence which the control of penal jurisdiction means, is said to have been, to a certain extent, very unfavorably commented upon within the judiciary. In certain cases, this is even said to have led to outspoken expressions of opinion against the National Socialist State which allegedly wished to suppress judicial independence in order to surrender justice to a right of control by political offices. The origin of this attitude on the part of certain judges in this respect is always the conventional conception of judicial independence according to which the judge was exclusively subordinated to the written law and therefore did not need to follow any directives even of the most general character, that may be issued by the administration of justice with reference to any precise line of conduct in jurisdiction.
Politically enlightened judges have likewise, according to the reports, viewed the control of jurisdiction with misgivings. In this, they have indeed not so much perceived a danger to judicial independence, for it was clear to them that its implication up to now, namely, exclusive subordination of the judge to the law, has been deeply altered to suit the National Socialist juridical philosophy, as in the fact that the obligations to the National Socialist ideology must have precedence over the obligations to the law if jurisdiction was not to be in opposition to the political objectives of the nation’s leadership. Since the execution of law in the National Socialist State has important political tasks to fulfill, a certain influence on the judges must be made possible in the form of instruction on important political viewpoints which the individual judge cannot grasp outright by himself.
As reported, however, these judges have likewise given an unfavorable reception to the method of control of penal jurisdiction, for it amounts only to an attempt with inadequate means to solve from a wrongly selected principle the very problem posed to the administration of jurisdiction, namely the uniform political and ideological adjustment of the judge.