Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume III

by Various

The intention of the administration of justice to gain influence on legal jurisdiction through the channel of the Ministry and the presidents of the district courts of appeal and of the district courts was therefore doomed to failure. The indispensable prerequisite for the possible success of such a gain of influence would have been that the officials exercising the control base their action on a unified political principle. As shown by experience, however, this has by no means been the case.

On the whole, the objective pursued by the leaders, who have been at the head of the Reich Ministry of Justice so far, in introducing the control of jurisdiction in order to reduce the far from negligible number of wrong sentences, can only be reached under certain conditions. Indeed certain sources of error have been removed with great difficulty. Without active handling of the basic problem of the political and ideological adjustment of the judiciary itself, a real improvement [Gesundung] of the execution of law cannot be expected in the long run.

The following example extracted from a series of similar cases is characteristic of the situation created by the introduction of the control of jurisdiction.

Roaming about at night at his place of domicile for several months, a Polish civilian workman stole from gardens and dwelling places money, numerous articles of underwear and clothing, as well as other articles of daily utility. As the competent special court established, he had carried this out under cover of the black-out.

In line with provisions, introducing reporting as a duty, the president of the competent district court of appeal had brought the case by telephone to the knowledge of the Reich Ministry of Justice. In its reply to the telephone message the Ministry advised the following day that the death penalty would probably not be deemed necessary for the Pole. That in any case the public prosecutor would receive explicit instruction before opening of the court hearing as to the penalty which should be asked against the Pole. The Ministry thereupon instructed the public prosecutor to propose 10 years of particularly rigid confinement in a place of detention. The court ruled accordingly.

As reported, the hypotheses under which this verdict took place, as well as the degree of the sentence itself, met with lively criticism on the part of politically awake lawyers. On the one hand it caused concern that by the direction of the administration of justice in such a manner the judge might from the outset be relieved of personal responsibility for his verdict. In as much as in a very great number of cases it becomes known to the court that the public prosecutor is being supplied with instructions regarding the application in criminal proceedings, it merely needs to comply with the request of the public prosecutor, thereby evading embarrassment which might possibly result from mistrials through reference to the concept of the Ministry. On the other hand, the case as described illustrates that the success of such a control stands and falls with the persons to whom such control is entrusted. If confusion prevails in the Ministry itself as to the line which the administration of justice should follow in regard to the Pole, there naturally is no guaranty that mistrials are excluded through the concept of control. The verdict in the case under consideration must be considered a faulty judgment; because under prevailing conditions there is no justification for the leniency which it expresses on behalf of a Pole who commits crimes under the cover of the black-out.

In connection with this and a series of similar cases reports of judges whom this development fills with serious concern stressed over and over again the need for informing the judiciary about the great goals of the leaders of the State. At the present time there is but a comparatively small number of judges who make an earnest endeavor to analyze the State political necessities as such, and the political foundation of the administration of justice. Unfortunately, it has so far been a fact that any civil servant in the administration who has just passed his second state examination in law has been more fully informed about the political goals of the State leaders and the political opportuneness than perhaps any president of a senate.

Also, this circumstance should be recognized as an important reason for the failure so far experienced in the administration of justice. Consequently, there exists a greater need than ever for bringing the judges much closer to the problems of State leadership and of State necessities as they arise newly all the time due to the war.

In the opinion of others, the former heads of the Reich Ministry of Justice likewise failed to fully realize their intent of remedying the lack of judgment of some judges in the case of decisions on penal cases with political aspects by controlling the administration of justice. It was said that in meetings held in the Ministry, the presidents of the district courts of appeal had been instructed to explain in official meetings to the judges under their jurisdiction how serious the situation is which is now encountered in the administration of justice, and in that connection to discuss examples for faulty verdicts, among other things also dealing with such which the Fuehrer himself has criticized. Some of the presidents of the district courts of appeal and of the district courts had discharged this task in such a manner that they manifestly refrained from expressing an opinion of their own, thereby making known that they themselves held a different opinion. This led to increased insecurity on the part of many judges.

An extension of report requirements yielded in some districts results along similar lines. It was partly made compulsory for judges at local courts, for example, to report every case of even moderate import to the president of the district court who on his part passed it on to the president of the district court of appeal and he to the Ministry. In some districts every judge at the local court was held to make a report each session on all cases which had come up. According to another report all judges of a district court of appeal had met to consult on a verdict which a judge of the local court was about to pronounce.