“When a decision is made about a legal question, the Reich Supreme Court can deviate from a decision laid down before this law went into effect.”
This tyrannical doctrine of “punishment by analogy” was given a sugar coating by Dr. Hans Frank (NG-777, Pros. Ex. 19):
“In the future, criminal behavior, even if it does not fall under formal penal precepts, will receive the deserved punishment if such behavior is considered punishable according to the sound sentiment of the people.”[26]
But once again, Josef Goebbels was shameless enough to state the doctrine with complete frankness (NG-417, Pros. Ex. 23):
“While making his decisions the judge is to proceed less from the law than from the basic idea that the offender is to be eliminated from the community. During a war it is not so much a matter of whether a judgment is just or unjust, but only the decision is expedient. The State must protect itself in the most efficient way and wipe them out entirely * * *. One must not proceed from the law, but from the resolution that the man must be wiped out.”[27]
On the administrative side, the prewar years were characterized by ever closer collaboration between Himmler’s Gestapo and the Reich Ministry of Justice. In February 1937, Himmler directed that all Gestapo matters be made available to the district public prosecutors. The next month, the Reich Minister of Justice (Guertner) addressed a letter to all the district public prosecutors, calling attention to Himmler’s directive and stating (NG-323, Pros. Ex. 32):
“In order to have this decree fulfill its purpose and in the interest of the closest possible collaboration between the office of the public prosecutor and the authorities of the Gestapo, I hereby issue this supplementary order that in future, public prosecutors routinely address all requests for investigations to be conducted on the basis of reports of political nature received by them directly, to the local and district police authorities via the competent state police offices. When in cases based on such reports, the necessary interrogations of the accused or the witnesses are procured by the court itself or by the expert of the prosecution, and the police authorities are not at all involved in the proceedings, I request that the state police offices be informed of the proceedings as soon as possible.”[28]
The German jurists, who collaborated so closely with Himmler’s minions, were equally willing to protect “overzealous Nazis” against the penal consequences of their worst excesses. Late in 1933 a group of “Storm Troopers” (SA) committed vicious assaults and tortures on some political prisoners who had been confined in the concentration camp of Kemna, near Wuppertal in the Ruhr. The description of this outrage by the Reich Minister of Justice reads as follows:
“In the camp, some of the prisoners were exposed to the severest mishandling.
“In most cases, shortly after their shipment had come in, and when they were being interrogated, they would be beaten, partly upon their bare bodies, with rubber cudgels, horsewhips, sticks, ox lashes, and other objects. In many cases they had to lie down over a special caning bench, or were forced down onto it by guards, and their mouths were kept shut or they were gagged with balls of paper, pieces of cloth, bags, or similar things, in order to prevent them from screaming. Other members of the guard in the meantime would begin to beat them up. Prisoners who fainted were kicked back to consciousness or had water thrown over them to wake them up and make them stand up again. After this, prisoners who were mistreated were frequently locked up in a small space under the stairway or in an elevator without being given any medical attention or food and drink. In some cases, the injuries the prisoners received from their beatings made it necessary to transfer them to hospitals.