Chapter 28

PARTIAL TRANSLATION OF DOCUMENT NG-715PROSECUTION EXHIBIT 112

DECREE OF THE REICH GOVERNMENT, 21 MARCH 1933, ON THE FORMATION OF SPECIAL COURTS

1933 REICHSGESETZBLATT, PART I, PAGE 136

Pursuant to chapter II of part six of the third decree of the Reich President to safeguard economy and finances and to combat political excesses, of 6 October 1931, (Reichsgesetzblatt I, pp. 537, 565) the following is decreed:

Article 1

(1) A Special Court will be created for the district of each court of appeal.

(2) The Special Courts are courts of the States.

(3) The Legal Administration of the respective States determines the seats of the Special Courts.

Article 2

The Special Courts have jurisdiction over crimes and offenses enumerated in the decree of the Reich President for the protection of people and State of 28 February 1933 (Reichsgesetzblatt I, p. 83) and in the decree concerning the defense against insidious attacks against the government of the national revolution of 21 March 1933 (Reichsgesetzblatt I, p. 135), provided that such crimes and offenses are not within the jurisdiction of the Reich Supreme Court or the courts of appeal.

Article 3

(1) The Special Courts shall also be competent if a crime or offense within their jurisdiction constitutes at the same time another punishable act.

(2) If another punishable act is factually connected with a crime or offense within the jurisdiction of the Special Courts, the proceedings against the perpetrators and participants of the other punishable act may be brought before the Special Court by way of combination.

(3) The extension of jurisdiction according to paragraphs 1 and 2 does not apply to matters within the jurisdiction of the Reich Supreme Court or the courts of appeal.

Article 4

(1) The Special Courts are composed of a president and two associate judges. A deputy has to be appointed for each member in case of his absence.

(2) The members and their deputies must be permanently appointed judges of the district for which the Special Court is established.

(3) The members will be appointed and the distribution of their tasks undertaken by the presidency of the district court in the district in which the Special Court is located.

Article 5

The prosecutors will be appointed by the legal administration of the States from those prosecution officials who are legally qualified for the office of a judge.

Article 6

The regulations of the code of criminal procedure and of the judicature act will apply correspondingly to the proceedings, provided nothing else has been determined.

Article 7

Proceedings may be instituted also before the Special Court in the district in which the defendant was caught or where he is in custody. The release of the defendant does not affect this jurisdiction once it has been established.

Article 8

Applications for disqualification of a judge will be decided upon by the Special Court to which the respective judge is assigned. For this decision the respective judge is replaced by his deputy. The deputy cannot be disqualified.

Article 9

(1) No hearings relating to the warrant of arrest will be held.

(2) The decisions concerning arrest pending trial are made by the president of the Special Court. The president of the Special Court is, apart from the local court, also competent for those decisions, which, according to articles 125, 128 of the code ofcriminal procedure, fall under the jurisdiction of the local court. Complaints against the decisions of the president and the local court will be decided upon by the Special Court.

(3) The president of the Special Court can delegate the interrogation of the defendant and the decision about the warrant of arrest to an associate judge. The same applies to the decisions which are to be made according to articles 116 and 148 of the code of criminal procedure.

Article 10

For the defendant who has not yet chosen counsel, counsel has to be appointed at the time when the date for the trial is fixed.

Article 11

A preliminary court investigation will not be held. If a preliminary court investigation is pending at the time this decree becomes effective, the records are to be transferred in due time to the prosecutor of the Special Court.

Article 12

(1) The indictment must contain a summary of the results of the investigations.

(2) The order of the court to open the trial can be dispensed with. Instead of the request of the prosecution for the order to open the trial, there will be the request of the prosecution to fix a date for the trial. After receiving the indictment the president will set a date for the trial, if in his opinion the legal prerequisites for it are fulfilled. Otherwise he will put the decision to the court. When setting the date for the trial, the president will also decide upon the warrant of arrest or the continuation of the arrest pending trial.

(3) The legal administration of the State can decree that the clerk of the Special Court will issue the summons for the trial and produce those objects which are to serve as evidence (art. 214, par. 1 of the code of criminal procedure). The legal administration of the State can delegate this power.

(4) The term of the summons (art. 217 of the code of criminal procedure) is 3 days. It can be shortened to 24 hours.

(5) The effects which the code of criminal procedure connects with the opening of the trial take place with the filing of the indictment. The effects, which the code of criminal procedure connects with the reading of the order of the court to open the trial,take place at the moment when the interrogation of the defendant as to the facts of the case begins.

Article 13

The Special Court can refuse any offer of evidence, if the court has come to the conviction that the evidence is not necessary for clearing up the case.

Article 14

The Special Court has to pass sentence even if the trial results in showing the act, of which the defendant is accused, as not being under the jurisdiction of the Special Court. This does not apply if the act constitutes a crime or offense under the jurisdiction of the Reich Supreme Court or the courts of appeal; in this case the Special Court has to proceed according to article 270, paragraphs 1 and 2 of the code of criminal procedure.

Article 15

The results of the interrogations (art. 273, par. 2 of the code of criminal procedure) need not be incorporated in the record of the trial.

Article 16

(1) There is no legal appeal against decisions of the Special Courts.

(2) Applications for a reopening of the case are to be decided upon by the penal chamber of the district court. The reopening of the case in favor of the defendant will also take place if there are circumstances which point to the necessity of reexamining the case in the ordinary procedure. The stipulation of article 363 of the code of criminal procedure remains unaffected. If the application for the reopening of the case is justified, the trial will be ordered to take place before the competent ordinary court.

Article 17

Proceedings initiated on a punishable act within the jurisdiction of the Special Courts and pending at the date this decree becomes effective, will be continued according to the general rules if the trial has already started. Otherwise they will be transferred to the procedure regulated in this decree.

Article 18

(1) When the activities of the Special Courts end, the pending cases will be transferred to the ordinary procedure; the indictmentfiled according to the stipulations of this decree will become ineffective.

(2) If the trial has once started before the Special Court, it will be carried on according to the stipulations of this decree.

(3) The administration of punishment will be transferred to the authority for the administration of punishment in whose district the Special Court had its seat; the court decisions occurring in the course of the administration of punishment will be made by the penal chamber of the district court without hearings being held.

Article 19

This decree becomes effective on the second day after its promulgation.

Berlin, 21 March 1933

The Reich Chancellor

Adolf Hitler

For the Reich Minister of Justice

The Vice Chancellor

von Papen

PARTIAL TRANSLATION OF DOCUMENT NG-715PROSECUTION EXHIBIT 112

DECREE OF 21 FEBRUARY 1940 CONCERNING JURISDICTION OF CRIMINAL COURTS, SPECIAL COURTS, AND ADDITIONAL PROVISIONS OF CRIMINAL PROCEDURE

1940 REICHSGESETZBLATT, PART I, PAGE 405

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PART II

SPECIAL COURTS

Section 1

Organization and Jurisdiction of the Special Courts

Article 10

Organization

(1) A Special Court will be established with one or several district courts within the district of each court of appeal.

(2) Location and district of the Special Courts are determined by the Reich Minister of Justice.

Article 11

Composition

1. Decisions of the Special Court are to be rendered by three professional judges.

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Article 13

Exclusive Jurisdiction

The Special Court has jurisdiction for:

1. Crimes and offenses committed under the law concerning insidious attacks against State and Party, and the protection of Party uniforms, of 20 December 1934.[123](Reichsgesetzblatt I, p. 1269, and under articles 134a and 134b of the criminal (penal) code.)

2. Crimes under article 239a of the criminal (penal) code and under the law against highway robbery by means of highway traps, of 22 June 1938 (Reichsgesetzblatt I, p. 651).

3. Crimes under the decree concerning extraordinary measures with regard to radio, 1 September 1939[124](Reichsgesetzblatt I, p. 1683).

4. Crimes and offenses under article 1 of the war economy decree, 4 September 1939[125](Reichsgesetzblatt I, p. 1609).

5. Crimes under article 1 of the decree against public enemies, 5 September 1939[126](Reichsgesetzblatt I, p. 1679).

6. Crimes under articles 1 and 2 of the decree against violent criminals, 5 December 1939, (Reichsgesetzblatt I, p. 2378).

Article 14

Establishment of jurisdiction of the court by the prosecution.

(1) The Special Court also has jurisdiction over other crimes and offenses, if the prosecution is of the opinion that immediate sentencing by the Special Court is indicated by the gravity or the wickedness of the act, by the public excitement aroused or in consideration of a serious threat to public order or security.

Article 15

Extension of Jurisdiction

(1) The Special Court is also competent if a crime or offensebelonging to its jurisdiction at the same time constitutes another punishable act.

(2) If there is a factual connection between a crime or offense belonging to the jurisdiction of the Special Court and another punishable act, the latter can be brought before the Special Court by way of combination.

Article 16

Limitations of Jurisdiction

The Special Court is not competent for offenses indicated in articles 13 through 15, in as far as the competency of the People’s Court or of the court of appeal is established.

Section 2

Proceedings before Special Courts

Article 17

Application of General Rules of Procedure

(1) For the proceedings before the Special Courts, the code of criminal procedure, the judicature act, and their amendments apply, unless otherwise specified.

(2) The rules of the second chapter of the juvenile court law are not applicable.

Article 18

Local Competency of the Court

The Special Court shall also be competent for those defendants who are seized or kept in confinement in its district. The jurisdiction, once established, will not be affected by the release of the defendant.

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Article 23

Speeding up of the Proceedings

(1) In all proceedings before a Special Court the sentence must be passed immediately without observation of any time limits, if the delinquent was caught in the very act or if his guilt is otherwise obvious.

(2) In all other cases the term of summons (arts. 217 and 218 of the code of criminal procedure) shall be 24 hours.

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Article 25

Relationship between the Special Courts and the regular courts

(1) The Special Court must hand down a decision in a case, even if the trial shows that the act with which the defendant is charged is of such a nature that the Special Court is not competent to deal with it. If, however, the trial shows that the act comes under the jurisdiction of the People’s Court, the Special Court will refer the case to the latter court; article 270, paragraph 2, of the code of criminal procedure applies accordingly.

(2) If the trial of a case before the People’s Court or the court of appeal, after the filing of the indictment, shows that the Special Court has exclusive jurisdiction over the act with which the defendant is charged, the People’s Court or the court of appeal can either decide the case themselves or direct the trial to take place before the Special Court. In the latter case the act with which the defendant is charged has to be described, with emphasis on its legal characteristics and on the penal law.

Article 26

Incontestability

(1) There is no legal appeal against a decision of the Special Court.

(2) Applications for a reopening of the proceedings will be decided on by the penal chamber of the district court at the seat of the Special Court. The reopening of the case in favor of the defendant will take place also if circumstances should make it necessary to re-examine the case in ordinary proceedings. Article 363 of the code of criminal procedure shall remain unaffected. If the application for reopening is justified, the trial shall be directed to take place before the competent ordinary court.

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Part VI

Final Regulations

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Article 40

Validity in the Protectorate

This decree is also valid for the German courts in the Protectorate of Bohemia and Moravia.

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Berlin, 21 February 1940

The Plenipotentiary for the Administration of the Reich

Frick

PARTIAL TRANSLATION OF DOCUMENT NG-715PROSECUTION EXHIBIT 112

LETTER FROM UNDER SECRETARY FREISLER TO PRESIDENTS AND PUBLIC PROSECUTORS AT COURTS OF APPEAL, 26 SEPTEMBER 1941, CONCERNING HANDLING OF CERTAIN WARTIME CRIMES BY SPECIAL COURTS TO SPEED UP PROCEEDINGS

The Reich Minister of Justice

3234-III a4 1187

Berlin W 8, 26 September 1941Wilhelmstrasse 65Telephone: 11 00 44,long distance: 11 65 16

To the Presidents and Public Prosecutors at the Courts of Appeal and for the information of—

a.The President of the Reich Supreme Court

b.The Chief Reich Prosecutor of the Reich Supreme Court concerning prosecution of wartime criminality—

Wartime crimes, particularly those involving the decree against public enemies, the war economy decree, the decree against violent criminals, and the decree against “Black Listening” [Listening to prohibited broadcasts][127], should, as a matter of principle, be indicted before Special Courts, in order to speed up proceedings as much as possible.

In the event that, because of the great number of proceedings, the necessary rapid handling of such cases should not prove possible, I wish to be informed promptly, in order that I may have new Special Courts established or new senates added to already existing Special Courts. The overload of work on a Special Court should never result in the handing over of cases to other courts.

A Special Court is, as a rule, to be considered overloaded if a monthly average of more than 40 new indictments has been filed with it.

Acting for the Minister

[Signed]Dr. Freisler

Certified:

[Signed]Benicke

Chief Clerk, Ministry of Justice Executive Office

TRANSLATION OF DOCUMENT NG-478PROSECUTION EXHIBIT 61

LETTER FROM THIERACK, REICH MINISTER OF JUSTICE, TO PRESIDENTS OF COURTS OF APPEAL, 5 JULY 1943, DISCUSSING DEVELOPMENT AND EFFECTIVENESS OF SPECIAL COURTS AND PROPOSING LIMITATIONS ON THEIR JURISDICTION

The Reich Minister of Justice

3234-IVa 4 877/43

Berlin W 8, 5 July 1943Wilhelmstrasse 65Telephone:Local calls 11 00 44Long distance 11 65 16

[Stamp] Court of Appeal Cologne 26 July 1943

To: The Presidents of Courts of Appeal and the Generalstaatsanwaelte

Subject: Relief of the Special Courts

The following has been discussed here:

Special Courts were established by the decree of 21 March 1933[128]as a keen weapon for the conviction of political criminals. Their jurisdiction was initially limited to crimes and delicts as defined by the decree of the Reich President concerning the protection of people and State[129]as well as in the Heimtueckegesetz.[130]By the decree on the extended jurisdiction of the Special Courts as of December 1934 and through a series of subsequent laws the functions of the Special Courts were steadily increased. The decree of 20 November 1938 then made it possible to bring before the Special Court such cases in which immediate action by this court seemed necessary in view of the gravity and the wickedness of the act or of the excitement aroused in public. After the outbreak of the war, by the decree of 21 February 1940 concerning court jurisdiction there was established exclusive jurisdiction of the Special Court for a series of offenses, in particular for crimes and transgressions covered by the war economy decree.Thus, the amount of work accruing to the Special Courts increased extraordinarily during the last years, especially during the war. Practically all somewhat important criminal cases are now under the jurisdiction of the Special Court.

This increase in work caused the establishment of a great number of new Special Courts, the enlargement of existing Special Courts and the formation of new Special Court sections.

This development is commented upon as follows:

1. Sentences by the Special Court in the first years after its establishment had a strongly intimidating effect. Prompt and severe punishment by the Special Court was dreaded. Moreover it was considered particularly shameful to have been sentenced by the Special Court. Since the focus of the entire system of criminal justice shifted in the meantime from the ordinary courts (local courts, criminal sections of district courts) to the Special Courts, a certain watering down of the original conception of the Special Courts could not be entirely avoided. Today the Special Courts basically are to be considered merely as special divisions of the criminal courts, their verdicts no longer having that full intimidating effect they had before. The only essential difference from ordinary criminal jurisdiction is left in the fact that there is no legal appeal remedy against verdicts of Special Courts. The standing of Special Courts suffered from their having to deal with comparatively small offenses such as small scale illegal slaughtering, unauthorized fishing by a Pole, and the like.

2. The concentration of jurisdiction in political and other most important criminal cases led at first to an essentially homogenous and coherent jurisdiction. The establishment of new chambers in the Special Courts and the increase of these courts tends to endanger this homogenousness. Since the verdicts of Special Courts were not regularly but rather casually published in the press, and since equalizing measures were taken only recently, the jurisdiction of the Special Courts, even of the individual chambers of one Special Court, developed partly in a very different manner. The first chamber of one Special Court, for instance, is reported to have punished the theft of some items from a collection of textiles as the deed of a people’s enemy with 4 years of penitentiary, while the second chamber of the same Special Court in a very similar case imposed a sentence of only 8 months.

3. The strong increase of the number of Special Courts had brought about that, due to the scarcity of apt candidates, the selection of judges officiating in these courts could no longer be carried through as carefully as it was done in the first years. While, in principle, only professionally and in particular politically highly qualified judges were supposed to work in Special Courts, the increase of positions made it necessary to draft judges frequentlyfrom criminal courts and civil sections who hardly were up to the required standards. Quite a number of judges in the Special Court are not even members of the Party.

4. Due to the development of the Special Courts, the ordinary criminal courts, especially the criminal court sections, have undergone an extreme decline in importance. While Special Courts are overburdened with work, some criminal court sections have hardly as much to do as they had in peacetime. Furthermore, the latter now having only to deal with trifling transgressions, they are gradually becoming less familiar with severe cases. It is reported that the prosecution now shows a tendency to bring many cases before the Special Courts which actually do not belong to their jurisdiction. On the one hand this is due to the prosecutors having greater confidence in the Special Courts, on the other to the fact that thus a delay of the execution of the sentence through appeal is made impossible.

5. The permanent overburdening of the Special Courts had led in some districts to a gradual vanishing of their particular advantage, their rapid sentencing. The Special Courts are said to proceed with such delay that at times the prison term imposed by the court is already absorbed by the custody preceding trial.

It may be stressed that said development of the Special Court jurisdiction is undesirable. In the interest of a rapid and severe punishment of the really outstanding crimes and transgressions it should be attempted to maintain the character of the Special Courts as “Courts Martial of the Home Front” [Standgerichte der Inneren Front].

1. In regard to organization, the following is pointed out:

a.At some Special Courts several chambers were established. Experiences with several chambers are varying, but in general not favorable. If the chambers are proceeding under different presidency and with different personnel, several chambers are actually equal to several Special Courts. Consequently it is possible that the uniformity of jurisdiction disappears even within one Special Court. Not in all places and instances the ability to preserve a uniform jurisdiction within the Special Court through an exchange of ideas and experiences and through an exchange of associate judges among the different chambers is to be found.

b.Even greater is the danger of a not uniform jurisdiction if new Special Courts with competence in a limited district are established. It is yet considerably harder to bring about an exchange of ideas and experiences and exchange of associate judgesamong different Special Courts than among several divisions of one and the same Special Court. Therefore, no advantage can be seen in the establishment of a whole series of new Special Courts as it has been noticed during the last years.

c.Reinforcement of the existing Special Courts by assigning a number of additional associate judges is considered to be the most suitable method. The uniformity of the direction of the Special Court is being secured by the presiding judge, while the most experienced associate judge should be made his deputy.

This strengthening of the Special Courts will in any case secure the uniformity of jurisdiction and will make possible a more extensive performance than in separated Special Courts. This strengthening of course is limited by the working capacity of the president and by his ability to exert influence. The president has to bear both in the preparation and in the conduct of the trial, the bulk of physical and intellectual work, a circumstance which sets a natural limit to this form of strengthening of the Special Courts.

2. Furthermore it is stressed that the Special Courts’ return to their proper task cannot be seen in organizational measures, but that a sensible relief of the Special Courts from inappropriate criminal cases must be accomplished.

a.A means thereto is already at hand now in article 24 of the decree concerning court competence. According to it, Special Courts are entitled to transfer trivial cases to the local or the criminal courts. Apparently practice is not uniform in this respect. While some Special Courts, in view of their excessive pressure of work, have already made an extended use of the opportunity to transfer cases to the regular courts, other Special Courts appear to have entirely renounced such a transfer, carrying through themselves even unimportant criminal cases. In general they base this on the bad experiences they made when they transferred cases to the regular jurisdiction.

In spite of that, transfers according to article 24 ought to be practised to a far greater extent. Through the sentences as suggested by the prosecutions, through judges’ letters and through directing of the criminal procedure, care has been taken that local and criminal courts are being integrated into the framework of Special Court jurisdiction. Thus, for instance, minor cases of illegal slaughtering, contact with prisoners of war, etc., could be transferred. If the penal courts were continuously entrusted with these matters, then they would also develop a uniform experience, which as yet is not possible. As a further means of relief, according to the present state of legislation, a directive to the public prosecutors is suggested with the purpose that all minor casesshould be prosecuted before the penal court and not before the Special Court. Only political and really important cases arousing public excitement should be reserved for the Special Courts.

b.Hitherto the possibility of letting the president (one single judge) take decisions in the Special Court has not been sufficiently made use of. In simple typical cases it is not necessary to call in assessors and to mobilize the whole apparatus of the Special Courts.

Kindly let me have your opinion of these arguments before 1 August 1943. Will you kindly especially express your opinion as regards the advantages and the expediency of the three possibilities—criminal chamber system, central Special Court with several deputy presidents, and separate regional Special Courts, as well as about the question of the restriction of competence.

[Seal of Ministry of Justice]

Dr. Thierack

Certified:

[Illegible stamped signature]

Clerk

PARTIAL TRANSLATION OF DOCUMENT NG-715PROSECUTION EXHIBIT 112

EXTRACT FROM LAW OF 24 APRIL 1934 AMENDING REGULATIONS OF PENAL LAW AND CRIMINAL PROCEDURE

1934 REICHSGESETZBLATT, PART I, PAGE 341

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CHAPTER III. PEOPLE’S COURT[132]

Article 1

(1) For the trial of cases of high treason and treason the People’s Court is established.

(2) Decisions of the People’s Court are made by five members during the trial, by three members outside the trial. This includes the president. The president and one further member must be qualified judges. Several senates may be established.

(3) The prosecution is represented by the Chief Prosecutor of the Reich.

Article 2

The members of the People’s Court and their deputies are appointed for the duration of 5 years by the Reich Chancellor at the recommendation of the Reich Minister of Justice.

Article 3

(1) The People’s Court is competent for the investigation and decision in the first and last instance in the cases of high treason according to articles 80 through 84, treason according to articles 89 through 92, assault against the Reich President according to article 94, paragraph 1 of the criminal (penal) code, and the crimes listed in article 5, paragraph 2, No. 1 of the decree of the Reich President for the protection of people and State of 28 February 1933[133](Reichsgesetzblatt I, p. 83). In these cases the People’s Court also make the decision listed in article 73, paragraph 1 of the judicature act.

(2) The People’s Court is also competent in such cases where crimes or offenses subject to its competency constitute at the same time another crime or offense.

(3) If another punishable act is in factual connection with a crime or offense subject to the jurisdiction of the People’s Court, the proceedings against the perpetrators and participants of the other punishable act may be brought before the People’s Court by way of combination.

Article 4

(1) The Chief Reich Prosecutor can transfer the prosecution of the crimes of preparation of high treason listed in articles 82 and 83 of the penal code and of the treasonable offenses listed in articles 90 b through 90 e of the penal code to the prosecutor at the court of appeal. The Chief Reich Prosecutor can withdraw the transfer before the opening of the investigation.

(2) In the cases mentioned in paragraph 1 the People’s Court can transfer the trial and decision to the court of appeal, if the Chief Reich Prosecutor requests this when filing the indictment.

(3) Article 120 of the judicature act applies accordingly.

Article 5

(1) As far as not otherwise stipulated, the procedure is subject to the provisions of the judicature act and the code of criminal procedure concerning the procedure before the Reich Supreme Court in the first instance.

(2) Against the decisions of the People’s Court no legal appeal is permitted.

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Berlin, 24 April 1934

The Reich Chancellor

Adolf Hitler

The Reich Minister of Justice, at the same time for the Reich Minister of the Interior

Dr. Guertner

The Reich Defense Minister

von Blomberg

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