Chapter 39

TRANSLATION OF DOCUMENT NG-287PROSECUTION EXHIBIT 88

CORRESPONDENCE BETWEEN LAMMERS, SCHAUB, AND DEFENDANT SCHLEGELBERGER, OCTOBER 1941, CONCERNING TRANSFER OF MARKUS LUFTGAS TO THE GESTAPO FOR EXECUTION[241]

The Reich Minister and Chief of the Reich Chancellery

Rk/ 15506 B

Fuehrer Headquarters25 October 1941

[Handwritten] 393A

1. To: Under Secretary, Professor Dr. Dr. h.c. Schlegelberger, charged with the management of the affairs of the Reich Minister of Justice

Berlin W 8

Wilhelmstrasse 65

[Handwritten] Refer to newspaper

Dear Mr. Schlegelberger:

The enclosed newspaper clipping about the sentencing of the Jew Markus Luftgas to imprisonment for 2½ years by the Special Court of Bielitz has been submitted to the Fuehrer.[242]The Fuehrer wishes Luftgas to be sentenced to death. May I ask you urgently to instigate what is necessary and to notify me about the measures taken so that I can inform the Fuehrer.

Heil Hitler!

Yours very truly,

(Signature of the Reich Minister)

[Handwritten] Justice 11

2. To: SS-Gruppenfuehrer Julius Schaub[243]

Fuehrer Headquarters

Subject: Markus Luftgas

Dear Mr. Schaub:

After receiving your letter dated 22 October 1941 I got into touch with the Reich Minister of Justice and asked him to instigate the necessary measures.

Heil Hitler!

Yours very truly,

(Signature of the Reich Minister)

3. Copy of the newspaper clipping to be filed.

4. After dispatch—For the attention of Ministerial Director Kritzinger for information.

5. After 1 month.

(Signature of the Reich Minister)

[Initial] L [Lammers]

Copy

[Enclosure] to Rk. 15 506 B

“Berlin Illustrated Night Edition”No: 246, Monday 20 October 1941

Jew hoarded 65,000 eggs and allowed 15,000 of them to spoil

By wire from our reporter

Breslau, 20 October—The 74-year-old Jew Markus Luftgas from Kalwarja removed a huge number of eggs from the controlled economy and had to answer for it at the Special Court in Bielitz. The Jew had hidden 65,000 eggs in containers and in a lime-pit, 15,000 of which had already spoiled. The defendant was sentenced to 2½ years’ imprisonment as a just punishment for a crime against the war economy regulations.

Berlin, 29 October 1941

The Acting Reich Minister of Justice

III g-14 3454/41

To the Reich Minister and

Chief of the Reich Chancellery

in Berlin W 8, Vosst. 6

[Initial] L [Lammers]

[Handwritten] 3/11

1. Submitted to the Minister for his information

2. To be filed.

[Initial]Kr[Kritzinger]

Subject: Case against the Jew Luftglass (not Luftgas) Sg 12 Js 340/.41 of the Chief Public Prosecutor in Katowice —Rk. 15506 B dated 25 October 1941.

Dear Reich Minister Dr. Lammers:

In accordance with the order of the Fuehrer and Reich Chancellor dated 24 October 1941, transmitted to me by the Minister of State and Chief of the Presidential Chancellery of the Fuehrer, I have handed over to the Gestapo for the purpose of execution, the Jew Markus Luftglass who was sentenced to 2½ years’ imprisonment by the Special Court in Katowice.

Heil Hitler!

Very truly yours,

[Signed]Schlegelberger

TRANSLATION OF DOCUMENT NG-508[244]PROSECUTION EXHIBIT 72

CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO PRESIDENTS OF DISTRICT COURTS OF APPEAL, 15 DECEMBER 1941, QUOTING FROM A SPEECH BY HITLER AND STATING THAT JUDGES AND PUBLIC PROSECUTORS MUST KEEP HITLER’S WORDS IN MIND

The Acting Reich Minister of Justice

33/2-IIa2 3024/41

Berlin W 8, 15 December 1941Wilhelmstrasse 65Tel. 11 00 44Long distance: 11 65 16

To: The Presidents of the District Courts of Appeal and the Attorneys General

An important factor in keeping up the morale of the German people on the home front is the prompt and purposeful administration of penal justice.

The Fuehrer was referring to this when, in his speech before the German Reichstag on 11 December 1941, he said:

“The memory of those who died for the existence and greatness of the German people even before our time makes us realize the extent of our duties.“He who tries to escape this duty, however, has no right to live among us as a member of the German national community.“We shall be equally unrelenting in our fight for the preservation of our people as we were in our fight for power.“At a time when thousands of our best men, fathers and sons of our people, are being killed in battle, nobody shall hope to live who attempts to depreciate at home the sacrifice which is made at the front. No matter under which disguise the attempt is made to disturb this German front, to undermine the resistance power of our people, to weaken the authority of the regime or to sabotage production on the home front; the culprit shall die! But there is this difference—while death brings highest honor to the soldier at the front, the other who depreciates this sacrifice shall die in shame.”

“The memory of those who died for the existence and greatness of the German people even before our time makes us realize the extent of our duties.

“He who tries to escape this duty, however, has no right to live among us as a member of the German national community.

“We shall be equally unrelenting in our fight for the preservation of our people as we were in our fight for power.

“At a time when thousands of our best men, fathers and sons of our people, are being killed in battle, nobody shall hope to live who attempts to depreciate at home the sacrifice which is made at the front. No matter under which disguise the attempt is made to disturb this German front, to undermine the resistance power of our people, to weaken the authority of the regime or to sabotage production on the home front; the culprit shall die! But there is this difference—while death brings highest honor to the soldier at the front, the other who depreciates this sacrifice shall die in shame.”

Every judge and every public prosecutor while doing his duty must keep these words of the Fuehrer in mind. This will enable him to fulfill his task in such a manner as is demanded by the Fuehrer.

I beg to give this outline immediately to all judges concerned with the administration of penal justice and to all public prosecutors, and to bring it to the notice of all judges who will in future be concerned with the administration of penal justice.

[typed] Signed:Dr. Schlegelberger

Certified: [Signed]Massmundt

First Secretary at the Ministerial Chancellery

[Stamp]

Reich Ministry of Justice,

Office of the Minister

TRANSLATION OF DOCUMENT NG-445PROSECUTION EXHIBIT 73

LETTER FROM THE PRESIDENT OF THE BERLIN COURT OF APPEAL TO DEFENDANT SCHLEGELBERGER, 3 JANUARY 1942, COMMENTING UPON “INFLUENCE EXERTED UPON THE JUDGES”

The President of the Berlin Court of Appeal

File number—3130.—A. 522/36

Berlin W 35, 3 January 1942Eltzholzstrasse 32Phone No. 27 00 13

To: Under Secretary Dr. Schlegelberger

in Berlin W 8,

Wilhelmstrasse 65

Subject: Report about the general situation in the districts.

Reich Ordinance of 9 December 1935—Ia 11012.

1. When I paid a visit to the criminal court a few months ago in order to attend proceedings of the Special Court, I heard from the representative of the president of the district court in Moabit that “the Reich Ministry of Justice was expecting two death sentences” in the criminal case which was on the docket. My investigations produced the fact that the competent public prosecutor had informed the president of the Special Court prior to the session that he had received a directive from the Reich Ministry of Justice to ask for a death sentence in two cases. The president of the Special Court had informed me the representative of the president of the district court hereof. I consider it undesirable that officials of the public prosecutor’s office pass on prior to the proceedings such directives given them by a higher authority to the president ofthe court, as it has been done here. For I am afraid that judges, including those sitting in the Special Court, are in some cases much more easily inclined to pronounce a given penalty, especially the death penalty, if they hear that “the Reich Ministry of Justice” has given a directive to the public prosecutor’s office to ask for such a sentence or that “according to the views of the Reich Ministry of Justice” this penalty is necessary. I consider such a communication, given to the court by the public prosecutor, as undesirable, also because the “opinion of the Reich Ministry of Justice” conveyed by the public prosecutor, might possibly, in an individual case, but represent the personal views of a minor official of the Reich Ministry of Justice, about which he had informed the competent official of the public prosecutor’s office.

2. The president of the Berlin district court, according to what he reported to me recently, in the course of a visit to a criminal trial in Moabit observed the following:

The trial was set for 0900 hours. Punctually at 0900 the president of the district court had taken a seat on the witnesses’ bench. The judges did not show up at first. Instead, loud voices could be heard from the conference room behind the courtroom. The president of the district court got the impression of a heated debate in which one voice could be heard above the others. According to what the president of the district court could observe, the defendant’s attention was aroused, and he listened in the direction of the conference room. No actual words could be understood by the president of the district court, but he thought it quite possible that the defendant who was very much nearer to the conference room could hear details. Therefore, the president sent a marshal to the conference room with the order to inform the court about that. Shortly afterward the public prosecutor appeared first in the courtroom, then the members of the court. They all came through the same door which leads directly to the courtroom from the conference room. After the beginning of the proceedings the president of the district court soon could undoubtedly recognize that the extraordinarily loud voice he had heard before had been the voice of the public prosecutor’s representative for that trial.

3. Recently I learned from an official complaint [Dienstaufsichtbeschwerde] that immediately prior to the session the president of a Special Court had conferred with the public prosecutor. Thereby the punctual beginning of the session was prevented, and the final results were that all other people involved in the trial had to wait unnecessarily for the beginning of the session. The president of the district court told the judge that if such talks seemed necessary they should be timed in such a way that the punctual beginning of the session would not be delayed thereby.

4. It has been reported to me that repeatedly, even after the beginning of the session, especially after the end of the producing of evidence and prior to the beginning of the pleadings, the public prosecutor’s representative repeatedly got in touch with members of the court in the conference room, during an intermission in the proceedings. In these talks, as I have been told, the question of guilt, but above all the sentence, had been discussed.

5. I have been informed confidentially that a Gau office for legal affairs [Gaurechtsamt] has conveyed the following information to the Reich Office for Legal Affairs of the NSDAP:

“According to a confidential instruction of the Reich Ministry of Justice, details of which I do not know, the public prosecutors have been requested to contact the judges about the sentence to be asked for before the pleadings take place. This request has caused extraordinary surprise, especially among lawyers. The pleadings of the defense counsel have practically become a mere formality. Prior to the pleadings of the defense counsel the court and the public prosecutor have already agreed upon the penalty. In practice, the court in almost every case always agrees to the penalty asked by the Chief Public Prosecutor.“Naturally, this does not only strike the defense counsel, but gradually also the population.“In this connection, a change must take place immediately. If a conference between the public prosecutor and the court concerning the degree of the penalty is considered necessary at all, at least it can be asked that the defense counsel, too, be present at these talks and be permitted to clearly state his point of view.”

“Naturally, this does not only strike the defense counsel, but gradually also the population.

“In this connection, a change must take place immediately. If a conference between the public prosecutor and the court concerning the degree of the penalty is considered necessary at all, at least it can be asked that the defense counsel, too, be present at these talks and be permitted to clearly state his point of view.”

It is my opinion that, as soon as the trial has begun, any contacts between the public prosecutor and members of the court are undesirable, because, as the events discussed above prove, misunderstandings are provoked thereby.

The public prosecutor’s getting in touch with the court, as requested in the decree of 27 May 1939—4200. IIIa-4-758, and as it was also suggested in the concluding speech of the late Reich Minister of Justice at the conference held in the Reich Ministry of Justice on 24 October 1939 (condensed report, pp. 50 and 51), therefore, will have to be limited to the time before the beginning of the trial. It seems practical to have it take place already the day before the trial or even earlier. At any rate I do not think it desirable that the contacts are made immediately before the beginning of the trial and that, in addition, they happen in the conference room of the court, because then occurrences such asI have described under 2 and 3 of this report cannot always be prevented. I consider it an illicit contact when the latter takes place after the end of the producing of evidence or, even more, after the pleadings have been concluded. Therefore, the president of the district court in Berlin, upon my request, has conferred with the attorney general of the district court. The latter has instructed the public prosecutors within his area of jurisdiction to get in touch with the president of the court—as far as this is necessary—already the day before the trial or still earlier, at any rate, however, to refrain from making contacts after the beginning of the trial. The presidents of the courts have been notified by the president of the district court accordingly, and have been instructed to refrain under all circumstances from any getting in contact in the conference room immediately prior to the beginning of the session. The prevention or limitation of discrepancies between the penalty demanded by the public prosecution and the sentence passed in court, which was the purpose of the decree of 27 May 1939 and of the detailed arguments of the late Reich Minister of Justice, should be safeguarded by a timely and comprehensive contact prior to the trial.

Moreover, and as stated above, I consider it as undesirable in the interest of the administration of justice, and in order to remove any fears concerning influence exerted upon the judges, that officials of the public prosecutor’s office communicate “the opinion of the Reich Ministry of Justice” in the case on hand, or any orders which may have been issued to them concerning the penalties to be asked, to the court outside of the proceedings.

In view of the general importance of the matter, I thought it advisable to report about it.

[Typed] Signed:Hoelscher

Certified.

[Signed]R. Ottilie

[Seal] Berlin Court of Appeal

Clerk

PARTIAL TRANSLATION OF DOCUMENT NG-752PROSECUTION EXHIBIT 24

EXTRACT FROM HITLER’S SPEECH TO THE GERMAN REICHSTAG, 26 APRIL 1942, REQUESTING CONFIRMATION OF THE RIGHT TO KEEP EVERYONE AT HIS DUTY AND EXPRESSING HIS INTENTION TO INTERVENE WHERE JUDGES “DO NOT UNDERSTAND THE DEMAND OF THE HOUR”[245]

*******

I do expect one thing—that the nation give me the right to intervene immediately and to take action myself wherever a personhas failed to render qualified obedience and service in the performance of the greater task, a matter of to be or not to be. The front and the homeland, the transport system, administration and justice must obey only one idea, that of achieving victory. In times like the present, no one can insist on his established rights, but everyone must know that today there are only duties.

I therefore ask the German Reichstag to confirm expressly that I have the legal right to keep everybody to his duty and to cashier or remove from office or position without regard for his person or his established rights, whoever, in my view and according to my considered opinion, has failed to do his duty.[246]And that just because among millions of decent people, there are only a few exceptions. For, today, one single common duty takes precedence over all rights, even the rights of these exceptions. It does not interest me therefore whether, in the present emergency, leave, etc., can be granted or not to an official or employee in every individual case, and leave which cannot be granted should not be saved up for a later date.

If there is anybody who is entitled to ask for leave, it would be first of all only our front soldiers and secondly the men and women workers who supply the front.

For months I have been unable to grant leave to the eastern front, and nobody at home, whatever his office, should dare therefore to insist on his so-called “established right” to leave. I myself am justified to refuse because since 1933 I have not taken 3 days’ leave—a fact which is probably not known to these individuals.

Furthermore, I expect the German legal profession to understand that the nation is not here for them but that they are here for the nation, that is, the world which includes Germany must not decline in order that formal law may live, but Germany must live irrespective of the contradictions of formal justice.To quote one example, I fail to understand why a criminal who married in 1937, ill-treated his wife until she became insane and finally died as a result of the last act of ill-treatment, should be sentenced to 5 years in a penitentiary at a moment when tens of thousands of honorable German men must die to save the homeland from annihilation at the hands of bolshevism, that is, to protect their wives and children.

From now on, I shall intervene in these cases and remove from office those judges who evidently do not understand the demand of the hour.

The achievements and sacrifices of the German soldier, the German worker, the farmer, our women in town and country, that is, the millions of our middle classes, imbued only with the idea of victory, demand the corresponding attitude on the part of those who themselves have been called by the people to protect their interests. In times like the present there can be no sacrosanct individual with established rights but all of us are merely obedient servants of the nation.

Deputies!

Men of the Reichstag!

A tremendous winter battle is behind us. The hour will strike when the fronts will come out of their rigidity, and then history will decide who was victorious in this winter—the aggressor who insanely sacrificed his masses or the defender who simply held his position. During the past few weeks I have read continuously about the violent threats of our enemies. You know that my duty is far too sacred to me and that I take it far too seriously ever to be careless.

Whatever man can do to forestall dangers, I have done and shall continue to do in future.

PARTIAL TRANSLATION OF DOCUMENT NG-102PROSECUTION EXHIBIT 75

FOUR COMMUNICATIONS, MAY-JUNE 1942, CONCERNING THE AUTHORITY FOR THE CONFIRMATION OF SENTENCES[247]

1. A Letter from Schlegelberger to Hitler, Enclosing a Proposed Decree for Hitler’s Signature

The Acting Reich Minister of Justice

Berlin, 6 May 1942

My Fuehrer!

Repeatedly, and finally in the session of the Greater German Reichstag on the 26 April of this year, you expressed that the front and the homeland require the unrelenting punishment of criminals, and that the judgments of the courts which do not meet these requirements cannot be tolerated.[248]

In order to accelerate the setting aside of such decisions, you, my Fuehrer, created the extraordinary objection to the Reich Supreme Court.[249]With the help of this legal resource the judgment against Schlitt, which you mentioned in the session of the Reichstag, was quashed within 10 days by sentence of the Reich Supreme Court. Schlitt was sentenced to death and executed at once. I believe, however, that the desired aim could be achieved even better and quicker if the Reich Minister of Justice, by means of an authority of confirmation, were given decisive influence on the award of punishment.

If you, my Fuehrer, could decide, by signing the attached draft of a decree, to transfer to the Reich Minister of Justice this right of confirmation for cases in which you do not want to decide yourself, the following would be achieved thereby:

The entire administration of penal justice be placed under the supreme control of the Reich Minister of Justice as far as the award of punishment is concerned. He could then achieve an increase of insufficient punishment in every case.

The Reich Minister of Justice would pronounce the nonconfirmation either himself or, more probably, in view of the approximately 300,000 penal sentences per annum, through the presidents of the courts of appeal.

In case of a nonconfirmation, the president of the court of appeal would himself fix the punishment or bring about another judicial decision on the measure of punishment.

The Reich Minister of Justice could, as soon as it is obvious that a criminal court cannot master a case, transfer the matter to another court.

It is guaranteed that the Reich Minister of Justice will immediately be informed about all important criminal matters. The attorneys general who, according to the draft, would have to propose the nonconfirmation, are under his direction. I can absolutely rely on the insight and willingness to serve of the 35 presidents of the courts of appeal. Should they ever lack the necessary severity, I myself would pronounce the nonconfirmation.

Therefore I believe that, if you, my Fuehrer, will agree to the draft, I could assume the responsibility that the punishment awards of the courts will no longer lead to complaints.

Heil, my Fuehrer!

[Signed]Dr. Schlegelberger

[Draft]

Decree by the Fuehrer on the authority for Confirmation in

Criminal cases of

1942.

As far as I shall not decide myself, in my capacity as holder of the supreme judicial power, I charge the Reich Minister of Justice to regulate within his jurisdiction the confirmation of sentences passed by special courts and other penal courts. In this connection the following is ordered:

I authorize the Reich Minister of Justice to pass on to the presidents of the courts of appeal the right to refuse confirmation to the amount of penalty following a valid judgment upon application of the general prosecutor in as much as such nonconfirmation of the sentence is not pronounced by the Reich Minister of Justice himself.

III

In case the president of the court of appeal denies confirmation of the sentence, he will return the case to the same or another court for another award of penalty. In case it was wrongly denied or disregarded that the culprit was a people’s parasite [Volksschaedling], brutal criminal, dangerous professional criminal or a dangerous immoral criminal, he is also entitled to quash the sentence for award of a just penalty and to pass the case to the same or another court for a new trial and judgment.

Upon demand of the general prosecutor, the president of the court of appeal, by calling in two judges as advisers, can also commute the sentence in free procedure himself.

The court to which the president of the court of appeal has passed on the case will, with the aid of the prosecutor, decide by writ or judgment in a proceeding that will be freely determined by itself.

In case of urgent reasons dictated by public interest, the Reich Minister of Justice can pass a pending trial on to another court within his jurisdiction.

VII

The Reich Minister of Justice, in accordance with the Reich Minister and chief of the Reich Chancellery and the head of the Party Chancellery, is entitled to issue instructions for the execution of this decree.

1942

The Fuehrer

The Reich Minister and Chief of the Reich Chancellery

2. File Memo by Lammers Concerning Discussion with Hitler’s Subject Decree on Authority for Confirmation of Sentences

To RK. [files] 6832 u. 6833 B.

Fuehrer Headquarters, 11 May 1942

Subject: Draft of a Fuehrer decree on the authority for confirmation in criminal cases

1. Miss Buege: (a) The enclosed letter[250]of the Reich Minister of Justice, dated 6 May 1942, addressed to me and also the enclosed notes of the Under Secretary Dr. Schlegelberger are to be registered under Rk., (b) the original copy of the Fuehrer decree is to be placed into a separate file.

[Handwritten] carried out.

[Initial]Bg

11 May

2. I have presented the matter to the Fuehrer on 7th instant and recommended the suggested decree. It seems to me indeed the only and safe way to master insufficient punishment in legal sentences.

The Fuehrer agreed to the decree in principle but could not decide on signing it; moreover, suggested whether it was not appropriate to soon fill in the position of Reich Minister of Justice and to leave the reform in question as well as the other reforms also to the new Reich Minister of Justice.

3. Under Secretary Dr. Schlegelberger, who visited me here, has been briefly informed by me on 8th instant about the state of the affair. He told me that he had already interested the Reich Marshal [Goering] also in the draft of the decree, and that he [the Reich Marshal] had promised him to speak in favor of the decree.

Under Secretary Dr. Schlegelberger further stressed the fact that the decree would naturally lose all its value for him if the confirmatory authority would pass to party offices (Party Chancellery, Gauleiter). To that I replied that one could perhaps consider to listen to the party before using the confirmatory authority. With regard to this question on 9th instant, Under Secretary Schlegelberger presented the notes of the same day to me. (Rk. 6833 B). He promised me also to send more material to the case in hand.

4. Office—Please enclose files for the filling of the position of Reich Minister of Justice!

5. To UStS. Kritzinger with the request for consultation conferences for further adaption of this matter. (Support of chief of Party Chancellery, contact with the Reich Marshal.)

[Handwritten]

Rk. 1527 H 41

Mg. Rk. 553 Bg. 41

3. Letter by Bormann Opposing Schlegelberger’s Proposed Decree and File Note by Lammers Concerning It

[Stamp] Reich Chancellery 8457 B 13 June 1942 Fi

[Handwritten] Submitted with Reich Chancellery 7964 B 13 June

NATIONAL SOCIALIST GERMAN WORKERS PARTY

PARTY CHANCELLERY

The Chief of the Party Chancellery

Fuehrer Headquarters10 June 1942

[Stamp] See affair of 10 June—III C—Ku.

[Stamp] Submitted through adjutant

[Handwritten] Duly submitted to the Reich Minister

13 June

Settled R 15 June

[Initial] F [Ficker][Initial] L [Lammers]

To: The Reich Minister and Chief of the Reich Chancellery Dr. H. H. Lammers

Berlin W 8

6 Voss-Strasse

Subject: Draft of a Fuehrer decree concerning the authority for confirmation [of sentences] in criminal cases

Reference: Your letter dated 21 May 1942—Reich Chancellery 7010 B.

Dear Dr. Lammers:

During the session of the Reichstag held on 26 April 1942, the Fuehrer requested the Greater German Reichstag expressly in consideration of the exigencies of the war, for the authorization to take all measures he deemed expedient without being bound by the existing legal provisions.[251]The Fuehrer’s choice of [expressing his desire] this way shows the importance he imputes to sovereign acts of the State [Hoheitsakten]. It is not proper to limit pronounced sentences—which have a certain effect on legal affairs—in their guiding effect on legal and factual circumstances by questioning their irrevocability through further unpredictable interventions, after all lawfully provided legal resources have been exhausted. This applies to a special degree to the judgments of courts which, in every case, represent a considerable intervention into the personal conditions of the people involved and, moreover, have a certain effect on the entire nation, be it as an intimidation or as a satisfaction with the strong, order-establishing hand of the State. Moreover, the arrangement of the life of the people requires that the further development of legal conditions starts from certain fixed basic conditions which cannot be shaken from any side, and that the security of the law be guaranteed. If the Fuehrer expressly requested the right of direct intervention over all formal legal provisions, then this emphasizes particularly the importance of the modification of a judicial sentence.

The proposal made by the Reich Minister of Justice, however, is likely to obliterate the impression of this authorization, and to impair its importance. However, this would be an inevitable consequence of the transfer of the correcting authority to the presidents of the court of appeal and of the strong decentralization originating thereby. The proposed decree of the Fuehrer would be nothing more than another effort to correct insufficient sentences as has been repeatedly undertaken before by the Reich Justice Ministry. In addition to the analogy provision of article 2 of the Reich criminal (penal) Code, I am especially thinking of the extraordinary objection, the nullity plea, the participation of the public prosecutor in civil proceedings, the public parasite decree, the decree against desperate criminals, and the provisions concerning dangerous professional criminals and immoral criminals.

[handwritten] Justiz 3

Despite all these provisions we were not in the position to silence the complaints on judgment inadequate in consideration of the exigencies of war. We observed again and again how these provisions were applied as mildly as possible, and not at all with the required readiness for responsibility and strictness which actually would have been possible.

It is my conviction that the proposed decree of the Fuehrer will have the same fate as the measures whose execution remained with the administration of justice.

It must be expected that the presidents of the courts of appeal will shrink from an intervention into the independence of the judge, of which they still have the old conception. They will bring the judge concerned on to the right path, not so much guided by their own conviction, but in order to get him to pass a sentence which will satisfy the threatening criticism. Even less, however, can one expect, for the same reason, more rigorously enhanced measures against an obstinate or incapable judge. Therefore, we must not expect the elucidating and guiding decisions hoped for in the material and personal field, the value of which lies first of all in the educational influence on other judges and on the public, but only measures or indications limited to individual cases.

In a formal respect, the following misgiving should be stressed: With the wording provided under paragraphs I and II of the draft, the Fuehrer literally deprives himself to a vast extent of the right of correcting sentences. In all cases which are brought to the Fuehrer’s knowledge only after the president of the court of appeal or the Minister of Justice has decided on the confirmation of a sentence, this decision was taken “by order of the Fuehrer.” Even with regard to the authorization by the Reichstag there would not be any room for the Fuehrer’s decision, since by the proposed decree he would have renounced the authorization legally assigned to him, in favor of the Minister of Justice or even of the president of the court of appeal.

Because of these considerations I am not able to agree with the draft of a Fuehrer decree as suggested by Under Secretary Schlegelberger.

In view of the importance which I assign to these fundamental objections, I have refrained for the time being from showing the additional objections I have to the structure of the decree and its individual provisions.

Heil Hitler!

Yours very truly

[Signed]M. Bormann

[Typed] (M. Bormann)

1. During yesterday’s conference with Under Secretary Schlegelberger I informed him of the basic ideas in Reichsleiter Bormann’s letter dated 10 June 1942. Schlegelberger would appreciate a copy of this letter. I do not think that there are objections to this. However, I wish to answer Reichsleiter Bormann’s letter and perhaps make my reply available to State Secretary Schlegelberger.

[Initial]Kr[Kritzinger]

26 June

2. a. UStS. Kritzinger

b. RKabR. Dr. Ficker

With request for conference

[Initial] F [Ficker]

26 June

Berlin, 25 June 42

[Initial] L [Lammers]

4. File Memo Noting Postponement of Proposals for Judicial Reform Until a New Reich Minister of Justice is Appointed

Following report to the Reich Minister [Lammers]

To RK. 8457 B

Berlin, 26 June 1942

Subject: Confirmation of sentences in criminal cases

1. The Reich Minister does not consider to pass on the letter written by Reichsleiter Bormann to State Secretary Schlegelberger and intends to discuss the matter orally with Reichsleiter Bormann on occasion.

2. Submitted to the Reich Minister according to instructions. Reichsleiter Bormann’s objections are aiming essentially at two points:

[Initial] L [Lammers]

a.He does not expect much from a delegation to presidents of courts of appeal as these would not interfere with sufficient energy;

b.He fears the Minister of Justice’s proposal would flatten the impression made by the Fuehrer’s Reichstag speech.[252]

As to the doubts of a more editorial nature expressed at the end of the letter, it should be possible to remove them by another formulation, which will also be necessary for other reasons. This reediting might be taken in hand as soon as an agreement exists on the fundamental points.

3. In file Bormann.

[Initial] F [Ficker]

Turn over

[Reverse side]

1. Discussion with Reichsleiter Bormann took place.

We agreed that further handling of all proposals regarding justice reform must be reserved to the new Minister of Justice.

2.a.To UStS. Kritzinger. [Initial]Kr[Kritzinger] August 3

b.To RKabR. Dr. Ficker. [Initial] F [Ficker] July 31

Who are requested to take notice.

3. To files.

Fuehrer Headquarters, 28 July 42

[Initial] L [Lammers]

TRANSLATION OF DOCUMENT NG-387PROSECUTION EXHIBIT 400

REPORT FROM DEFENDANT ROTHENBERGER TO DEFENDANT SCHLEGELBERGER, 4 JULY 1941, CONCERNING CRITICISM OF JUDGES BY THE SS PERIODICAL, THE DRAFT LAW ON “ASOCIALS”, AND THE LACK OF SUITABLE CANDIDATES FOR JUDGESHIPS

The President of the Hanseatic Court of Appeal

3130 E-1a/3/ (3x)

Hamburg 36, 4 July 1941

Registered

To: Under Secretary Dr. Schlegelberger

Reich Ministry of Justice,

Berlin

Subject: Report on the general situation

Reference: Your No. Ia 11012/35

The article “Mental Black-out” in the “Schwarzes Korps” of 17 April 1941 had a disastrous effect on the morale of the judges; in the last paragraph of this article the actions of the judges are compared with the conduct of a people’s parasite, who takes advantage of the black-out to commit his crimes. If the judges read the correction in the bulletin of the Reich chamber of attorneys of 20 May 1941 and then see there is no vindication of the judges to the public, a further increase of the displeasure among the German judges can scarcely be imagined.

I was confidentially informed of the draft of the law of April 1941 concerning the treatment of asocial elements.[253]According to this law the custody of these persons is exclusively in the hands of the Reich Security Main Office, and so the sterilization insofar as the decision of this office as to whether a person is asocial has been declared binding on the eugenics court. I consider so extensive a disregarding of a judicial authority very dubious, and I propose that the local court consisting perhaps of a judge, a physician, and a representative of the police should decide whether an asocial element should be kept in lifelong custody or should be sterilized.

III

Day before yesterday I undertook a careful review of the courts of Bremen, and I learned anew that there is in Bremen a complete lack of suitable younger men to become judges. One of the reasons for this lack was the fact that the customary manner in which lawyers had hitherto applied for the judicial career has been made impossible because only up to 4 years of their activity as attorneys may be included in their service age for purposes of calculating salaries. As the Finance Minister has agreed, for the annexed eastern territories, three-quarters of the period of service as an attorney may be added to the service age for purposes of calculating salaries. I propose that this provision shall also be issued for Bremen, because of the special circumstances. In view of the whole development of the judicial situation in Bremen, I should consider it very regrettable if the Bremen lawyers were deprived of the opportunity of becoming judges.

[Signed]Rothenberger

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