d. Preliminary proceedings.
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By the general principle of every German administration of criminal jurisdiction, viz, that it must serve to establish actual facts and their true judgment—a principle which is adhered to without exception and unalterably the freedom of judgment in the arrangement of the preliminary proceedings finds its unchangeable limit (the same has to be said with regard to the trial). From this it follows as a matter of course that the public prosecutor in the preliminary proceeding will have to examine all evidence, extenuating as well as aggravating, and investigate it.
It is just as self-evident that in the place of preliminary proceedings by the public prosecutor and the decision of the public prosecutor concerning the indictment and abatement there can be no Klageerzwingungsverfahren[350] on the part of a private person in consideration of the principle of liberty of decision with regard to prosecution or nonprosecution, just as prosecuting authority no private person can appear as prosecutor, replacing the public prosecutor neither independently nor as coprosecutor; consequently the Pole can be neither plaintiff nor coplaintiff. In order to avoid any misinterpretation in this direction this has been expressly stated already in the decree establishing a penal code. In the decree establishing the penal code for Poles it is stated expressly: “The public prosecutor prosecutes crimes of Poles and Jews * * *.” (Number IV) “Poles and Jews can take neither civil action nor act as coplaintiffs.” (Number XI). From the first of these two legal provisions it follows also that against the Pole no civil action nor action as a coplaintiff can be taken; the public prosecutor alone is competent to prosecute.
If the liberty of decision in determining the procedure as well as the main trial is stressed time and again, on the other hand it must nevertheless be emphasized that the establishment of the true facts of the case is the purport and the rendering of a just verdict the aim of every criminal proceeding against Poles. Therefore, nothing may be disregarded which may serve to establish the truth and to arrive at a just verdict. For this it is essential that the accused is heard,—as long as he does not use this possibility granted him for propaganda—and that he can defend himself in connection with the accusation, that he may offer evidence of any kind, that he can express himself with regard to the findings of the evidence heard, and that he may have the last word. In cases where difficulties arise from difference of language it is of course essential that the possibility of understanding is secured, if necessary with the help of an interpreter. The judge and all the officials of the administration of justice always and without exception will speak German. Likewise all evidence, as far as it is not declared with certainty as being unsuitable right away, must be fully investigated.
The giving of the opportunity to the public prosecutor and the judge to use their own discretion in the arrangement of proceedings was possible only because it may be assumed that no German public prosecutor and no German judge in any proceeding conducted by him will ignore these principles.
Should that happen, however, in an isolated case, it is to be expected that the public prosecutor will appeal against a decision arrived at during a trial exhibiting such fundamental defects with the legal measures at his disposal. The senates of the four district courts of appeal, which are the highest authority in Polish matters, guarantee that they display in these cases by the way in which they deal with appeals that such high principles may not be left out of consideration and that they express this clearly in the reasons given for the verdict, although this is not absolutely necessary for the establishment of the sentence itself, because it is not a revised judgment but a sentence on appeal * * *.
f. Execution of a sentence.
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Even if every sentence can be carried out immediately nevertheless it is self-evident that the authority carrying out sentences will not proceed to the execution if in a specific case the possibility exists that the condemning verdict can undergo a substantial change by legal measures to the advantage of the condemned person or even be changed into acquittal. It is completely self-evident that the severest penalty will not be put into effect before it has the force of law; this is also impossible because the decision of the supreme authority as to the execution or nonexecution can only be brought about after the sentence becomes valid. It has also to be expected that the executing authority will stay the execution of the penalty if that authority or the public prosecutor—perhaps because of new evidence—later arrives at the conclusion that the condemning sentence cannot be upheld, or at least reckons with the not too distant possibility of such a result of an appeal or of a retrial.