[Letter from the President of the Essen Special Court to the President of the Essen District Court, 4 January 1943]
The President of the Special Court
Essen, 4 January 1943
Secret
To the President of the District Court in Essen
Concerning—Prosecution of criminal acts against the Reich or the occupying power in the occupied territories.
The German Penal Code applies to the prosecution of criminal acts against the Reich or the occupying power in occupied territories. This does not exclude the application of article IV, paragraph 32 of the competence decree of 21 February 1940 concerning necessary defense, included in the Reich Minister of Justice’s executive decree of 6 February 1942.[454] Foreign defendants must therefore have counsel if there is a possibility of the death sentence (or life imprisonment) being imposed. That is frequently the case in these trials. An increasing number of more copious cases with several defendants are now coming up. Very frequently the only evidence against defendants pleading not guilty consists of statements of codefendants, so that in view of the possibility of conflicting interests, it is only rarely possible to appoint one counsel for a number of defendants. Recently, seven counsel had to be appointed for one trial lasting several days. At that time it was most difficult to find enough counsel in a position to take over the defense. The course of proceedings was repeatedly interrupted owing to the inability of counsel to appear. In a few days another case with about 30 defendants will come up, for which a number of counsel will presumably have to be appointed, too. A number of similar trials may be expected shortly.
Such a strain for trials lasting all day for several days upon the few lawyers, who are overworked due to their representing their drafted colleagues, is in my opinion untenable under present circumstances. The resultant drain upon the State treasury is considerable. When the second court for these special cases which will soon be needed is set up, it will be next to impossible to get the requisite number of counsel. The interests of foreign defendants can hardly be considered sufficiently important to justify continuous demands of this kind on staff and public funds.
I therefore suggest that the Reich Minister of Justice should lay down the following by virtue of the powers granted in No. V of the Fuehrer’s directives of 7 December 1941:
Article IV, paragraph 32 of the competence decree of 21 February 1940 is not applicable. The president of the court will appoint a counsel for the defendant if the latter is unable to defend himself or if for any other special reasons it seems desirable that the defendant be represented.