Immediately after the seizure of power, the Nazis struck hard at the independence and integrity of the judiciary by dismissing or demoting politically unreliable judges and officials of the Ministry of Justice. The temporary decree of 7 April 1933, under which this was done, provided that—
“Officials, whose former political activity does not offer a guarantee that they, at all times without reservation, act in the interest of the national state, can be dismissed from service. For a period of 3 months after dismissal, they are accorded their former salary. From this time on, they receive three-fourths of their pension and corresponding survivor’s benefits.”[19]
In 1937 similar language was embodied in permanent legislation in the Civil Service Act.[20] The result of these measures was the elimination of all Jews and part-Jews, Social Democrats, and other opponents of the Nazi regime, from the bench and from the staff of the Ministry of Justice.
Substantive criminal law during this period was radically affected by the introduction of the authoritarian ideology of the Third Reich, and the concept of the criminal as the enemy of the nation. The prime purpose of the new criminal provisions was to make the new holders of power secure against all competition or attack. The decree for the protection of the German people[21] initiated a never-ending stream of legislation intended to protect the persons, institutions, and symbols of the Third Reich against all attacks of political enemies. The field for the application of treason and high treason was vastly enlarged by investing the most preparatory and auxiliary acts with the character of treason. The range of application of the death penalty, in the past restricted to murder and some cases of homicide, was greatly widened. Hand in hand with the sharpening of penalties and the extension of the scope of punishable atrocities went the attempt to widen the scope of German criminal jurisdiction beyond its territorial limits. The new “race defilement” prohibitions for example were made applicable to offenses committed abroad.[22]
Examples of such draconic and tyrannical decrees are legion. The decree of 24 April 1934 provided that the death penalty, or hard labor for life, or hard labor for 2 years or more, should be inflicted—
“1. If the act aimed at establishing or maintaining an organized combination for the preparation of high treason; or
“2. If the act was directed toward making the armed forces or police unfit for the execution of their duty to protect the stability of the German Reich from internal or external attacks; or
“3. If the act was directed toward influencing the masses by making or distributing writings, recordings, and pictures, or by the installation of wireless, telegraph, or telephone; or
“4. If the act was committed abroad or was committed in such a manner that the perpetrator undertook to import writings, recordings, or pictures from abroad for the purpose of distribution within the country.”
By August 1938, this tendency had progressed to a point where the following acts were all made punishable by death: