“83. Whoever publicly incites to or solicits an undertaking of high treason shall be punished by confinement in a penitentiary not to exceed 10 years.“Whoever prepares an undertaking of high treason in any other way shall be punished in like manner.“The death penalty, or confinement in a penitentiary for life, or for not less than 2 years, shall be inflicted:“(1) if the act was directed toward establishing or maintaining an organized combination for the preparation of high treason or*******“(3) if the act was directed toward influencing the masses by making or distributing writings, recordings, or 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 offender undertook to import writings, recordings, or pictures from abroad or for the purpose of distribution within the country.”[600]
“83. Whoever publicly incites to or solicits an undertaking of high treason shall be punished by confinement in a penitentiary not to exceed 10 years.
“Whoever prepares an undertaking of high treason in any other way shall be punished in like manner.
“The death penalty, or confinement in a penitentiary for life, or for not less than 2 years, shall be inflicted:
“(1) if the act was directed toward establishing or maintaining an organized combination for the preparation of high treason or
*******
“(3) if the act was directed toward influencing the masses by making or distributing writings, recordings, or 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 offender undertook to import writings, recordings, or pictures from abroad or for the purpose of distribution within the country.”[600]
On 20 December 1934, the government promulgated the following enactment “Law on Treacherous Acts against State and Party and for the Protection of Party Uniforms,” which provided in part as follows:
“Chapter 1. Article 1. (1) Unless heavier punishment is sanctioned under the authority of a law previously established, imprisonment not to exceed 2 years shall be imposed upon anybody deliberately making false or grievous statements, fit to injure the welfare or the prestige of the government of the Reich, the National Socialist Workers’ Party, or its agencies. If such statements are made or circulated in public, imprisonment for not less than 3 months shall be imposed.“Article 2. (1) Anyone who makes or circulates statements proving a malicious, baiting or low-minded attitude toward leading personalities of the State or the NSDAP, or toward orders issued by them or toward institutions created by them—fit to undermine the confidence of the people in its political leadership—shall be punished with imprisonment.“(2) Statements of this kind which are not made in public shall warrant the same punishment—provided the offender figures on his statements eventually being circulated in public.”
“Chapter 1. Article 1. (1) Unless heavier punishment is sanctioned under the authority of a law previously established, imprisonment not to exceed 2 years shall be imposed upon anybody deliberately making false or grievous statements, fit to injure the welfare or the prestige of the government of the Reich, the National Socialist Workers’ Party, or its agencies. If such statements are made or circulated in public, imprisonment for not less than 3 months shall be imposed.
“Article 2. (1) Anyone who makes or circulates statements proving a malicious, baiting or low-minded attitude toward leading personalities of the State or the NSDAP, or toward orders issued by them or toward institutions created by them—fit to undermine the confidence of the people in its political leadership—shall be punished with imprisonment.
“(2) Statements of this kind which are not made in public shall warrant the same punishment—provided the offender figures on his statements eventually being circulated in public.”
A decisive step was taken by the “Law to Change the Penal Code,” which was promulgated on 28 June 1935 by Adolf Hitler as Fuehrer and Reich Chancellor, and by Dr. Guertner as Reich Minister of Justice. Article 2 of that enactment is as follows:
“Article 2. Whoever commits an act which the law declares as punishable or which deserves punishment according to the fundamental idea of a penal law and the sound concept of the people, shall be punished. If no specific penal law can be directly applied to this act, then it shall be punished according to the law whose underlying principle can be most readily applied to the act.”
“Article 2. Whoever commits an act which the law declares as punishable or which deserves punishment according to the fundamental idea of a penal law and the sound concept of the people, shall be punished. If no specific penal law can be directly applied to this act, then it shall be punished according to the law whose underlying principle can be most readily applied to the act.”
In substance, this edict constituted a complete repudiation of the rule that criminal statutes should be definite and certain and vested in the judge a wide discretion in which Party political ideology and influence were substituted for the control of law as the guide to judicial decision.
Section 90 (f) of the Penal Code, as enacted on 24 April 1934, provided:
“Whoever publicly, or as a German staying abroad, causes serious danger to the reputation of the German nation by an untrue or grossly inaccurate statement of a factual nature, shall be punished by confinement in a penitentiary.”
“Whoever publicly, or as a German staying abroad, causes serious danger to the reputation of the German nation by an untrue or grossly inaccurate statement of a factual nature, shall be punished by confinement in a penitentiary.”
The act was amended on 20 September 1944 as follows:
“In especially serious cases a German may be punished by death.”[601]
“In especially serious cases a German may be punished by death.”[601]
By the act of 28 June 1935 it was provided:
“Whoever publicly profanes the German National Socialist Labor Party, its subdivisions, symbols, standards, and banners, its insignia or decorations, or maliciously and with premeditation exposes them to contempt shall be punished by imprisonment.“The offense shall be prosecuted only upon order of the Reich Minister of Justice who shall issue such order in agreement with the Fuehrer’s deputy.”[602]
“Whoever publicly profanes the German National Socialist Labor Party, its subdivisions, symbols, standards, and banners, its insignia or decorations, or maliciously and with premeditation exposes them to contempt shall be punished by imprisonment.
“The offense shall be prosecuted only upon order of the Reich Minister of Justice who shall issue such order in agreement with the Fuehrer’s deputy.”[602]
By the law of 28 June 1935 it was provided:
“If the main proceedings show that the defendant committed an act which deserves punishment according to the common sense of the people but which is not declared punishable by the law, then the court must investigate whether the underlying principle of a penal law applies to this act and whether justicecan be helped to triumph by the proper application of this penal law. (Article 2 of the Penal Code.)”[603]
“If the main proceedings show that the defendant committed an act which deserves punishment according to the common sense of the people but which is not declared punishable by the law, then the court must investigate whether the underlying principle of a penal law applies to this act and whether justicecan be helped to triumph by the proper application of this penal law. (Article 2 of the Penal Code.)”[603]
A decree of 1 December 1936 provides in part as follows:
“Section 1. (1) A German citizen who consciously and unscrupulously, for his own gain or for other low motives, contrary to legal provisions smuggles property abroad or leaves property abroad and thus inflicts serious damage to German economy is to be punished by death. His property will be confiscated. The perpetrator is also punishable, if he commits the misdeed abroad.”[604]
“Section 1. (1) A German citizen who consciously and unscrupulously, for his own gain or for other low motives, contrary to legal provisions smuggles property abroad or leaves property abroad and thus inflicts serious damage to German economy is to be punished by death. His property will be confiscated. The perpetrator is also punishable, if he commits the misdeed abroad.”[604]
On 17 August 1938, more than a year before the invasion of Poland, a decree was promulgated against undermining German military efficiency. It provided in part:
“Section 5. (1) The following shall be guilty of undermining German military efficiency, and shall be punished by death:“1. Whoever openly solicits or incites others to evade the fulfillment of compulsory military service in the German or an allied armed force, or otherwise openly seeks to paralyze or undermine the will of the German people or an allied nation to self-assertion by bearing arms; * * *.”[605]
“Section 5. (1) The following shall be guilty of undermining German military efficiency, and shall be punished by death:
“1. Whoever openly solicits or incites others to evade the fulfillment of compulsory military service in the German or an allied armed force, or otherwise openly seeks to paralyze or undermine the will of the German people or an allied nation to self-assertion by bearing arms; * * *.”[605]
Under this law the death sentence was mandatory.
By the decree of 1 September 1939 the ears of the German people were stopped lest they hear the truth:
“Section 1.—Deliberate listening to foreign stations is prohibited. Violations are punishable by hard labor. In less severe cases there can be a sentence of imprisonment. The radio receivers used will be confiscated.“Section 2.—Whoever deliberately spreads news from foreign radio stations which is designed to undermine German military efficiency will be punished by hard labor and in particularly severe cases by death.”[606]
“Section 1.—Deliberate listening to foreign stations is prohibited. Violations are punishable by hard labor. In less severe cases there can be a sentence of imprisonment. The radio receivers used will be confiscated.
“Section 2.—Whoever deliberately spreads news from foreign radio stations which is designed to undermine German military efficiency will be punished by hard labor and in particularly severe cases by death.”[606]
It is important to note that discretion as to penalty was vested in the court.
On 5 September 1939, by the Decree Against Public Enemies, it was provided that looting in liberated territory may be punished by hanging. The following additional provisions are of importance because of the arbitrary manner in which the instrument was construed and applied by the courts. The provisions are as follows:
“Section 2.—Whoever commits a crime or offense against life, limb or property, taking advantage of air raid protection measures, is punishable by hard labor of up to 15 years or for life, and in particularly severe cases punishable by death.“Section 3.—Whoever commits arson or any other crime of public danger, thereby undermining German military efficiency, will be punished by death.“Section 4.—Whoever commits a criminal act exploiting the extraordinary conditions caused by war is punishable beyond the regular punishment limits with hard labor of up to 15 years or for life, or is punishable by death if the sound common sense of the people requires it on account of the crime being particularly despicable.”[607]
“Section 2.—Whoever commits a crime or offense against life, limb or property, taking advantage of air raid protection measures, is punishable by hard labor of up to 15 years or for life, and in particularly severe cases punishable by death.
“Section 3.—Whoever commits arson or any other crime of public danger, thereby undermining German military efficiency, will be punished by death.
“Section 4.—Whoever commits a criminal act exploiting the extraordinary conditions caused by war is punishable beyond the regular punishment limits with hard labor of up to 15 years or for life, or is punishable by death if the sound common sense of the people requires it on account of the crime being particularly despicable.”[607]
On 25 November 1939 the death penalty was authorized as punishment for intentionally or negligently causing damage to war materials and the like, if it endangers the fighting power of the German armed forces. The death penalty was also authorized in case of anyone who “disturbs or imperils” the ordinary function of an enterprise essential to the defense of the Reich or to the supply of the population.[608]
On 5 December 1939 the death penalty was authorized for various crimes of violence and it was provided that “this decree is also applicable to crimes committed before it became valid”.
On 4 September 1941 the Criminal Code was supplemented and changed to provide the death penalty for dangerous habitual criminals and sex criminals “if necessitated for the protection of the national community or by the desire for just expiation”. The decree was signed by Adolf Hitler and by the defendant Dr. Schlegelberger in charge of the Reich Ministry of Justice.
By the decree of 5 May 1944, the judges were substantially freed from all restrictions as to the penalty to be invoked in criminal cases. That decree reads as follows:
“With regard to all offenders who are guilty of causing serious prejudice or seriously endangering the conduct of war, or the security of the Reich, through an intentional criminal act, a penalty may be imposed in excess of the regular penal limits up to the statutory maximum for a given type of punishment, or hard labor for a term or for life, or death, if the regular statutory maximum limits are insufficient for expiation of the act according to the sentiment of the people. The same shall also apply to all offenses committed by negligence by which one made himself guilty of a particularly grave prejudice or a particularlyserious danger to the conduct of war, or to the security of the Reich.”[609]
“With regard to all offenders who are guilty of causing serious prejudice or seriously endangering the conduct of war, or the security of the Reich, through an intentional criminal act, a penalty may be imposed in excess of the regular penal limits up to the statutory maximum for a given type of punishment, or hard labor for a term or for life, or death, if the regular statutory maximum limits are insufficient for expiation of the act according to the sentiment of the people. The same shall also apply to all offenses committed by negligence by which one made himself guilty of a particularly grave prejudice or a particularlyserious danger to the conduct of war, or to the security of the Reich.”[609]
On 20 August 1942 Hitler issued the famous decree which marks the culmination of his systematic campaign to change the German judicial system into an instrumentality of the NSDAP. The decree was as follows:
“A strong administration of justice is necessary for the fulfillment of the tasks of the great German Reich. Therefore, I commission and empower the Reich Minister of Justice to establish a National Socialist Administration of Justice and to take all necessary measures in accordance with my directives and instructions made in agreement with the Reich Minister and Chief of the Reich Chancellery and the Leader of the Party Chancellery. He can hereby deviate from any existing law.”[610]
“A strong administration of justice is necessary for the fulfillment of the tasks of the great German Reich. Therefore, I commission and empower the Reich Minister of Justice to establish a National Socialist Administration of Justice and to take all necessary measures in accordance with my directives and instructions made in agreement with the Reich Minister and Chief of the Reich Chancellery and the Leader of the Party Chancellery. He can hereby deviate from any existing law.”[610]
The statutes which we have reviewed were merely steps in the process of increased severity of the criminal law and in the development of a loose concept concerning the definition of crime. The latter concept was especially evident in the statutes concerning the “sound sentiment of the people”, crime by analogy, and undermining the military efficiency of the nation. In place of the control of law there was substituted the control of National Socialist ideology as a guide to judicial action.
The Draconic laws to which we have referred were upon their face, of general applicability. The discriminations on political, racial, and religious grounds are to be found not in the text, but in the application of the text.
But the Nazis were not content with statutes of a nondiscriminatory nature even in view of the discriminatory manner in which they were enforced. Coincidentally with the development of these laws and decrees there arose another body of substantive law which expressly discriminated against minority groups both within and without the Reich, and which formed the basis for racial, religious, and political persecution on a vast scale. On 7 April 1933, a decree by the Reich government provided in part that—
“Article 2. Persons who, according to the Law for the Restoration of the Professional Civil Service of 7 April 1933,[611]are of non-Aryan descent, may be refused permission to practice law, even if there exists none of the reasons enumerated in the Regulations for Lawyers. The same rule applies in cases, as where a lawyer described in section 1, clause 2, wishes to be admitted to another court. * * *”“Article 3. Persons who are active in the Communistic sense are excluded from the admission to the bar. Admissions already given have to be revoked.”[612]
“Article 2. Persons who, according to the Law for the Restoration of the Professional Civil Service of 7 April 1933,[611]are of non-Aryan descent, may be refused permission to practice law, even if there exists none of the reasons enumerated in the Regulations for Lawyers. The same rule applies in cases, as where a lawyer described in section 1, clause 2, wishes to be admitted to another court. * * *”
“Article 3. Persons who are active in the Communistic sense are excluded from the admission to the bar. Admissions already given have to be revoked.”[612]
The act was implemented by the power of injunction. The fact that the license to practice law had been canceled was also stated as a ground for the cancellation of employment contracts and office leases.
On 15 September 1935, the Reichstag enacted the “Law for the Protection of German Blood and Honor.” We quote—
“Article 1. (1) Marriages of Jews and citizens of German or related blood are prohibited. Marriages which are concluded nevertheless, are void even if they were concluded abroad in order to circumvent this law.“(2) Only the district attorney can sue for nullification of marriage.“Article 2. Sexual intercourse (except in marriage) between Jews and German nationals of German or German-related blood is forbidden.”
“Article 1. (1) Marriages of Jews and citizens of German or related blood are prohibited. Marriages which are concluded nevertheless, are void even if they were concluded abroad in order to circumvent this law.
“(2) Only the district attorney can sue for nullification of marriage.
“Article 2. Sexual intercourse (except in marriage) between Jews and German nationals of German or German-related blood is forbidden.”
By other laws, as amended from time to time, non-Aryans were almost completely expelled from public service. The number of non-Aryans in schools and higher institutions of learning was restricted.[613]Jews were excluded from the homestead law concerning peasantry.[614]Jewish religious communities were regulated.[615]Jews were excluded from certain industrial enterprises[616]and their rights as tenants were restricted.[617]
By the act of 2 November 1942 it was provided—
“Section 1. A Jew who has his domicile abroad cannot be a citizen of the Protectorate of Bohemia and Moravia. Domicile abroad is established if a Jew was abroad under circumstances which indicated that his tenure there is not of a temporary nature.“Section 2. A Jew loses his citizenship status in the Protectorate if—“(a) As of the effective date of this decree, he has an established domicile abroad;“(b) At a date subsequent to the effective date of this decree, he establishes a domicile abroad.”
“Section 1. A Jew who has his domicile abroad cannot be a citizen of the Protectorate of Bohemia and Moravia. Domicile abroad is established if a Jew was abroad under circumstances which indicated that his tenure there is not of a temporary nature.
“Section 2. A Jew loses his citizenship status in the Protectorate if—
“(a) As of the effective date of this decree, he has an established domicile abroad;
“(b) At a date subsequent to the effective date of this decree, he establishes a domicile abroad.”
And by act of 25 November 1941 it was provided—
“Section 3. (1) The property of the Jew who is losing his nationality under this amendment shall be forfeited for the benefit of the Reich at the moment he loses his nationality. The Reich further confiscates the property of Jews who are stateless at the moment this amendment becomes effective, and who were last of German nationality, if they have or take up their regular residence abroad.(2) The property thus forfeited shall serve the furthering of all purposes in connection with the solution of the Jewish question.*******“Section 8. (1) It is for the chief of the Security Police and the SD (of Reich Leader SS) to decide whether the conditions for confiscation of property are given.(2) The administration and liquidation of the forfeited property is up to the Chief of the Regional Finance Office, Berlin.”[618]
“Section 3. (1) The property of the Jew who is losing his nationality under this amendment shall be forfeited for the benefit of the Reich at the moment he loses his nationality. The Reich further confiscates the property of Jews who are stateless at the moment this amendment becomes effective, and who were last of German nationality, if they have or take up their regular residence abroad.
(2) The property thus forfeited shall serve the furthering of all purposes in connection with the solution of the Jewish question.
*******
“Section 8. (1) It is for the chief of the Security Police and the SD (of Reich Leader SS) to decide whether the conditions for confiscation of property are given.
(2) The administration and liquidation of the forfeited property is up to the Chief of the Regional Finance Office, Berlin.”[618]
The decree of 4 December 1941 “concerning the organization and criminal jurisdiction against Poles and Jews in the Incorporated Eastern Territories”,[619]marks perhaps the extreme limit to which the Nazi government carried its statutory and decretal persecution of racial and religious minorities, but it also introduces another element of great importance. We refer to the extension of German laws to occupied territory, to purportedly annexed territory, and to territory of the so-called protectorates. The decree provides—
“(1) Poles and Jews in the Incorporated Eastern Territories are to conduct themselves in conformity with the German laws and with the regulations introduced for them by the German authorities. They are to abstain from any conduct liable to prejudice the sovereignty of the German Reich or the prestige of the German people.“(2) The death penalty shall be imposed on any Pole or Jew if he commits an act of violence against a German on account of his being of German blood.“(3) A Pole or Jew shall be sentenced to death, or in less serious cases to imprisonment, if he manifests anti-German sentiments by malicious activities or incitement, particularly by making anti-German utterances, or by removing or defacing official notices of German authorities or offices, or if he, by hisconduct, lowers or prejudices the prestige or the well being of the German Reich or the German people.“(4) The death penalty, or in less serious cases imprisonment, shall be imposed on any Jew or Pole:*******“3. If he urges or incites to disobedience to any decree or regulation issued by the German authorities;“4. If he conspires to commit an act punishable under paragraphs (2), (3) and (4), subsections 1 to 3,or if he seriously contemplates the carrying out of such an act, or if he offers himself to commit such an act, or accepts such an offer, or if he obtains credible information of such act, or of the intention of committing it, and fails to notify the authorities or any person threatened thereby at a time when danger can still be averted. [Emphasis added.]“II. Punishment shall also be imposed on Poles or Jews if they act contrary to German criminal law or commit any act for which they deserve punishment in accordance with the fundamental principles of German criminal law and in view of the interests of the State in the Incorporated Eastern Territories.“III. * * * (2) The death sentence shall be imposed in all cases where it is prescribed by the law. Moreover, in these cases where the law does not provide for the death sentence, it may and shall be imposed if the offense points to particularly grave for other reasons; the death sentence may also be passed upon juvenile offenders.*******“XIV. (1) The provisions contained in sections I-IV of this decree apply also to those Poles and Jews who on 1 September 1939 were domiciled or had their residence within the territory of the former Polish State, and who committed criminal offenses in any part of the German Reich other than the Incorporated Eastern Territories. * * *”
“(1) Poles and Jews in the Incorporated Eastern Territories are to conduct themselves in conformity with the German laws and with the regulations introduced for them by the German authorities. They are to abstain from any conduct liable to prejudice the sovereignty of the German Reich or the prestige of the German people.
“(2) The death penalty shall be imposed on any Pole or Jew if he commits an act of violence against a German on account of his being of German blood.
“(3) A Pole or Jew shall be sentenced to death, or in less serious cases to imprisonment, if he manifests anti-German sentiments by malicious activities or incitement, particularly by making anti-German utterances, or by removing or defacing official notices of German authorities or offices, or if he, by hisconduct, lowers or prejudices the prestige or the well being of the German Reich or the German people.
“(4) The death penalty, or in less serious cases imprisonment, shall be imposed on any Jew or Pole:
*******
“3. If he urges or incites to disobedience to any decree or regulation issued by the German authorities;
“4. If he conspires to commit an act punishable under paragraphs (2), (3) and (4), subsections 1 to 3,or if he seriously contemplates the carrying out of such an act, or if he offers himself to commit such an act, or accepts such an offer, or if he obtains credible information of such act, or of the intention of committing it, and fails to notify the authorities or any person threatened thereby at a time when danger can still be averted. [Emphasis added.]
“II. Punishment shall also be imposed on Poles or Jews if they act contrary to German criminal law or commit any act for which they deserve punishment in accordance with the fundamental principles of German criminal law and in view of the interests of the State in the Incorporated Eastern Territories.
“III. * * * (2) The death sentence shall be imposed in all cases where it is prescribed by the law. Moreover, in these cases where the law does not provide for the death sentence, it may and shall be imposed if the offense points to particularly grave for other reasons; the death sentence may also be passed upon juvenile offenders.
*******
“XIV. (1) The provisions contained in sections I-IV of this decree apply also to those Poles and Jews who on 1 September 1939 were domiciled or had their residence within the territory of the former Polish State, and who committed criminal offenses in any part of the German Reich other than the Incorporated Eastern Territories. * * *”
It will be observed that the title of the foregoing act refers to “Poles and Jews in the Incorporated Eastern Territories”, but Article XIV makes the decree also applicable to acts by Poles and Jews within any part of the German Reich, if on 1 September 1939 they were domiciled within the former Polish State. This section was repeatedly employed by the courts in the prosecution of Poles.
There was promulgated a thirteenth regulation under the Reich citizenship law which illustrates the increasing severity by meansof which the government was attempting to reach a “solution of the Jewish problem” under the impulsion of the progressively adverse military situation. This regulation, under date of 1 July 1943, provides:
“Article 1. (1) Criminal actions committed by Jews shall be punished by the police.“(2) The provision of the Polish penal laws of 4 December 1941 (RGBl. I, p. 759) shall no longer apply to Jews.“Article 2. (1) The property of a Jew shall be confiscated by the Reich after his death.*******“Article 3. The Reich Minister of the Interior with the concurrence of the participating higher authorities of the Reich shall issue the legal and administrative provisions for the administration and enforcement of this regulation. In doing so he shall determine to what extent the provisions shall apply to Jewish nationals of foreign countries.”
“Article 1. (1) Criminal actions committed by Jews shall be punished by the police.
“(2) The provision of the Polish penal laws of 4 December 1941 (RGBl. I, p. 759) shall no longer apply to Jews.
“Article 2. (1) The property of a Jew shall be confiscated by the Reich after his death.
*******
“Article 3. The Reich Minister of the Interior with the concurrence of the participating higher authorities of the Reich shall issue the legal and administrative provisions for the administration and enforcement of this regulation. In doing so he shall determine to what extent the provisions shall apply to Jewish nationals of foreign countries.”
By Article 4 it was provided that in the Protectorate of Bohemia and Moravia the regulation shall apply where German administration and German courts have jurisdiction. (1943 RGBl. I, p. 372.)
Not only did the Nazis enact special discriminatory laws against Poles and Jews and political minorities; they also enacted discriminatory laws in favor of members of the Party. By the decree of 17 October 1939, it was provided that “for the area of the Greater German Reich, special jurisdiction in penal matters will be established for—
“1. Professional members of the Reich leadership of the SS.“2. Professional members of the staffs of those Higher SS and Police Chiefs who possess the authority of issuing orders in those units which have been specially designated under numbers 3 to 6 below:“3. Members of the SS units for special purposes;“4. Members of the SS Death Head units (including their reinforcements);“5. Members of the SS Junker schools;“6. Members of police units for special purposes.”
“1. Professional members of the Reich leadership of the SS.
“2. Professional members of the staffs of those Higher SS and Police Chiefs who possess the authority of issuing orders in those units which have been specially designated under numbers 3 to 6 below:
“3. Members of the SS units for special purposes;
“4. Members of the SS Death Head units (including their reinforcements);
“5. Members of the SS Junker schools;
“6. Members of police units for special purposes.”
On 12 March 1938, the German Army invaded Austria. The methods employed “were those of an aggressor.”[620]On the next day Austria was incorporated in the German Reich. As a result of the Munich pact of 29 September 1938, and of threatened invasion, Czechoslovakia was compelled to cede the Sudetenland toGermany,[621]and on 16 March 1939, Bohemia and Moravia were incorporated in the Reich as a protectorate. On 1 September 1939, Poland was invaded and thereafter occupied and, later on, Germany, by military force, occupied all or portions of Denmark, Norway, Belgium, the Netherlands, Luxembourg, Yugoslavia, Greece, and Russia. These occupations and annexations furnished the motive for an extension into many areas outside the old Reich of the draconic and discriminatory German laws which had been put in force within the old Reich. By the act of 14 April 1939, it was provided:
“Article II, section 6 (2). Persons who are not German nationals are subject to German jurisdiction for offenses—“(a) to which German criminal law applies,“(b) if they are prosecuted under a private action provided the action has been brought by a German national.*******“Section 7. German jurisdiction in the Protectorate of Bohemia and Moravia excludes jurisdiction by the courts of the Protectorate unless otherwise provided.”
“Article II, section 6 (2). Persons who are not German nationals are subject to German jurisdiction for offenses—
“(a) to which German criminal law applies,
“(b) if they are prosecuted under a private action provided the action has been brought by a German national.
*******
“Section 7. German jurisdiction in the Protectorate of Bohemia and Moravia excludes jurisdiction by the courts of the Protectorate unless otherwise provided.”
The decree of 5 September 1939 against public enemies,supra, was made “applicable in the Protectorate of Bohemia and Moravia and also for those persons who are not German citizens.”
By a decree of 25 November 1939 concerning damage to war material, it is provided in part:
“Section 2. Whoever disturbs or imperils the ordinary function of an enterprise essential to the defense of the Reich or to the supply of the population in that he made a thing serving the enterprise completely or partially unusable or put it out of commission, shall be punished by hard labor or in especially serious cases by death.*******“Section 6. In the Protectorate of Bohemia and Moravia the provisions of sections 1, 2, * * * and 5 of this decree are valid also for persons who are not nationals of the German state.”
“Section 2. Whoever disturbs or imperils the ordinary function of an enterprise essential to the defense of the Reich or to the supply of the population in that he made a thing serving the enterprise completely or partially unusable or put it out of commission, shall be punished by hard labor or in especially serious cases by death.
*******
“Section 6. In the Protectorate of Bohemia and Moravia the provisions of sections 1, 2, * * * and 5 of this decree are valid also for persons who are not nationals of the German state.”
The “decree on the extension of the application of criminal law of 6 May 1940” provided in part:
[Article I, section 4] “German criminal law will be applied to the following crimes committed by a foreigner abroad, independently of the laws of the place of commitment:“1. Crimes committed while holding a German governmental office, as a German soldier or as member of the Reich Labor Service (Reichsarbeitsdienst) or committed against a holder of a German office of the State or the Party, against a German soldier or a member of the Reich Labor Service, while on duty or relating to his duty;“2. Actions constituting treason or high treason against Germany; * * *.”*******[Article II] “Paragraph 153. * * * A crime committed by a foreigner abroad will be prosecuted by the public prosecutor only if so demanded by the Reich Ministry of Justice. The public prosecutor may abstain from the prosecution of a crime if the same crime has already been punished abroad and if the punishment has been carried out and the sentence to be expected in Germany would, after deducting the time served abroad, not be heavy.”
[Article I, section 4] “German criminal law will be applied to the following crimes committed by a foreigner abroad, independently of the laws of the place of commitment:
“1. Crimes committed while holding a German governmental office, as a German soldier or as member of the Reich Labor Service (Reichsarbeitsdienst) or committed against a holder of a German office of the State or the Party, against a German soldier or a member of the Reich Labor Service, while on duty or relating to his duty;
“2. Actions constituting treason or high treason against Germany; * * *.”
*******
[Article II] “Paragraph 153. * * * A crime committed by a foreigner abroad will be prosecuted by the public prosecutor only if so demanded by the Reich Ministry of Justice. The public prosecutor may abstain from the prosecution of a crime if the same crime has already been punished abroad and if the punishment has been carried out and the sentence to be expected in Germany would, after deducting the time served abroad, not be heavy.”
The act of 25 November 1941,supra, concerning the confiscation of Jewish property was made applicable in the Protectorate of Bohemia and Moravia and in the Incorporated Eastern Territories.[622]Of greatest significance in this category was the law against Poles and Jews already cited in another connection. The thirteenth regulation under the Reich Citizenship Law of 1 July 1943,supra, was also made applicable within the Protectorate of Bohemia and Moravia “where German administration and German courts have jurisdiction”. It was also made applicable to Jews “who are citizens of the Protectorate”. (Sec. 4.)
Thus far we have taken note of the substantive criminal law and its extension to occupied and annexed territories, but these laws were not self-executing. For the accomplishment of the ends of aggressive war, the elimination of political opposition and the extermination of Jews in all of Europe, it was deemed necessary to harness the Ministry of Justice and the entire court system for the enforcement of the penal laws in accordance with National Socialist ideology.
By decree of 21 March 1933 Special Courts were established within the district of every court of appeal. Their jurisdiction was rapidly extended. It included the trial of cases arising under the decree relating to the defense against insidious attacks against the government of the national revolution.
The decree of 21 March 1933 provided in part:
“Section 3. (1) The Special Courts shall also be competent if a crime within their jurisdiction represents also another punishable deed.“(2) If another punishable act is factually connected with a crime within the jurisdiction of the Special Courts, the proceedings on that other punishable deed against delinquents and participants may be referred to the Special Court by way of connection.”*******“Section 9. (1) No hearings relating to the warrant of arrest will be held.*******“Section 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.“Section 11. A preliminary court investigation will not take place. * * *“Section 12. * * * (4) The term of the summons (section 217 of the Code of Criminal Procedure) is 3 days. It can be shortened to 24 hours.“Section 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.“Section 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 Supreme Court or the courts of appeal; in this case the Special Court has to proceed according to section 270, paragraph 1–2 of the Code of Criminal Procedure.“Section 16. (1) There is no legal appeal against decisions of the Special Courts.“(2) Applications for a reopening of the trial are to be decided upon by the criminal chamber of the district court. The reopening of the trial 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 section 363 of the Code of Criminal Procedure remains unaffected. If the application for the reopening of the trial isjustified, the trial will be ordered to take place before the competent ordinary court.”[623]
“Section 3. (1) The Special Courts shall also be competent if a crime within their jurisdiction represents also another punishable deed.
“(2) If another punishable act is factually connected with a crime within the jurisdiction of the Special Courts, the proceedings on that other punishable deed against delinquents and participants may be referred to the Special Court by way of connection.”
*******
“Section 9. (1) No hearings relating to the warrant of arrest will be held.
*******
“Section 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.
“Section 11. A preliminary court investigation will not take place. * * *
“Section 12. * * * (4) The term of the summons (section 217 of the Code of Criminal Procedure) is 3 days. It can be shortened to 24 hours.
“Section 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.
“Section 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 Supreme Court or the courts of appeal; in this case the Special Court has to proceed according to section 270, paragraph 1–2 of the Code of Criminal Procedure.
“Section 16. (1) There is no legal appeal against decisions of the Special Courts.
“(2) Applications for a reopening of the trial are to be decided upon by the criminal chamber of the district court. The reopening of the trial 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 section 363 of the Code of Criminal Procedure remains unaffected. If the application for the reopening of the trial isjustified, the trial will be ordered to take place before the competent ordinary court.”[623]
Special Courts were also vested with jurisdiction under the law for the protection against violent political acts of 4 April 1933 under which the death penalty was authorized.[624]
On 1 September 1939 the Special Courts were given jurisdiction under the law concerning listeners to foreign radio broadcasts, and the death sentence was authorized in certain cases.[625]On 5 September 1939 jurisdiction of the Special Court was extended to cases of looting, and the death sentence was authorized. Jurisdiction was also extended to cases of criminal acts exploiting the extraordinary conditions caused by the war. That act further provided:
[Article 5] “In all trials by Special Courts the verdict must be pronounced at once without observation of time limitations if the perpetrator is caught redhanded or if guilt is otherwise obvious”.[626]
[Article 5] “In all trials by Special Courts the verdict must be pronounced at once without observation of time limitations if the perpetrator is caught redhanded or if guilt is otherwise obvious”.[626]
On 21 February 1940 the Special Courts were expressly given jurisdiction concerning—
[Article 13] “1. Crime and offenses committed under the law of 20 December 1934 concerning treacherous attacks against State and Party, and concerning protection of Party uniforms;“2. Crimes under section 239a of the Reich Criminal Code and under the law of 22 June 1938 concerning highway robbery by means of highway traps;“3. Crimes under the decree [1 September 1939] concerning extraordinary measures in regard to radio;“4. Crimes and offenses under the war economy decree of 4 September 1939;“5. Crimes under section 1 of the decree of 5 September 1939 against public enemies;“6. Crimes under sections 1 and 2 of the decree of 5 December 1939 against violent criminals.”[627]
[Article 13] “1. Crime and offenses committed under the law of 20 December 1934 concerning treacherous attacks against State and Party, and concerning protection of Party uniforms;
“2. Crimes under section 239a of the Reich Criminal Code and under the law of 22 June 1938 concerning highway robbery by means of highway traps;
“3. Crimes under the decree [1 September 1939] concerning extraordinary measures in regard to radio;
“4. Crimes and offenses under the war economy decree of 4 September 1939;
“5. Crimes under section 1 of the decree of 5 September 1939 against public enemies;
“6. Crimes under sections 1 and 2 of the decree of 5 December 1939 against violent criminals.”[627]
The decree further provided:
[Article 14] (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 outrageousness of the act, onaccount of the thereby-aroused public sentiment or in consideration of serious threat to public order or security.”[Article 23] “(1) In all proceedings before a Special Court the sentence must be passed immediately without observation of any reprieves, if the delinquent was caught in the very act or if his guilt is self-evident otherwise.“(2) In all other cases the term of summons shall be 24 hours. (Articles 217, 218 of the Reich Code of Criminal Procedure (Reichsstrafprozessordnung)).”[Article 25] “(1) The Special Court must hand down a decision in a case, even if the trial shows that the act with which the accused 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 refers the matter to the latter court, by decision; Article 270, section 2, of the Reich Code of Criminal Procedure is applicable accordingly.[Article 26] “(1) There is no legal appeal against a decision of the Special Court.”[Article 34] “The chief public prosecutor may lodge a petition for nullification with the Supreme Court (Reichsgericht) against a final judgment of a judge of the criminal court of the Special Court, within 1 year from the date of its becoming final, if the judgment is not justified because of an erroneous application of law on the established facts.[Article 35] “(1) The petition for nullification must be submitted in writing to the Supreme Court. This court will decide thereon by judgment based on a trial. With the consent of the chief public prosecutor it can also reach a decision without trial.“2. The Supreme Court may order a postponement or an interruption of the execution. It may order arrest or internment even prior to the decision on the petition for nullification. The criminal senate (Strafsenat) composed of three members including the president, will decide thereon without a trial, with reservations as to the regulations of article 124, section 3 of the Reich Code of Criminal Procedure.”[628]
[Article 14] (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 outrageousness of the act, onaccount of the thereby-aroused public sentiment or in consideration of serious threat to public order or security.”
[Article 23] “(1) In all proceedings before a Special Court the sentence must be passed immediately without observation of any reprieves, if the delinquent was caught in the very act or if his guilt is self-evident otherwise.
“(2) In all other cases the term of summons shall be 24 hours. (Articles 217, 218 of the Reich Code of Criminal Procedure (Reichsstrafprozessordnung)).”
[Article 25] “(1) The Special Court must hand down a decision in a case, even if the trial shows that the act with which the accused 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 refers the matter to the latter court, by decision; Article 270, section 2, of the Reich Code of Criminal Procedure is applicable accordingly.
[Article 26] “(1) There is no legal appeal against a decision of the Special Court.”
[Article 34] “The chief public prosecutor may lodge a petition for nullification with the Supreme Court (Reichsgericht) against a final judgment of a judge of the criminal court of the Special Court, within 1 year from the date of its becoming final, if the judgment is not justified because of an erroneous application of law on the established facts.
[Article 35] “(1) The petition for nullification must be submitted in writing to the Supreme Court. This court will decide thereon by judgment based on a trial. With the consent of the chief public prosecutor it can also reach a decision without trial.
“2. The Supreme Court may order a postponement or an interruption of the execution. It may order arrest or internment even prior to the decision on the petition for nullification. The criminal senate (Strafsenat) composed of three members including the president, will decide thereon without a trial, with reservations as to the regulations of article 124, section 3 of the Reich Code of Criminal Procedure.”[628]
The speed with which the Special Courts acted is of significance. In view of the congested dockets of the Special Courts, Freisler, acting for the Minister of Justice, ordered, “a Special Court is, as a rule, to be considered overloaded if a monthly average of more than forty new indictments has been filed with it.”
On 4 December 1941, in the law against Poles and Jews,supra, it was provided:
“IV. The State prosecutor shall prosecute a Pole or a Jew if he considers that punishment is in the public interest.“V. (1) Poles and Jews shall be tried by a Special Court or by the district judge.*******“VI. (1) Every sentence will be enforced without delay. The State prosecutor may, however, appeal from the sentence of a district judge to the court of appeal. The appeal has to be lodged within 2 weeks.“(2) The right to lodge complaints which are to be heard by the court of appeal is reserved exclusively to the State prosecutor.“VII. Poles and Jews cannot challenge a German judge on account of alleged partiality.“VIII. * * * (2) During the preliminary inquiry, the State prosecutor may order the arrest and any other coercive measures permissible.“IX. Poles and Jews are not sworn in as witnesses in criminal proceedings. If the unsworn deposition made by them before the court is found false, the provisions as prescribed for perjury and false statements shall be applied accordingly.“X. (1) Only the State prosecutor may apply for the reopening of a case. In a case tried before a Special Court, the decision concerning an application for the reopening of the proceedings rests with this court.“(2) The right to lodge a plea of nullity rests with the State prosecutor general. The decision on the plea rests with the court of appeal.“XI. Poles and Jews are not entitled to act as prosecutors either in a principal or a subsidiary capacity.“XII. The court and the State prosecutor shall conduct proceedings within their discretion and according to the principles of the German law of procedure. They may, however, deviate from the provisions of the German law on the organization of courts and on criminal procedure, whenever this may appear to them advisable for the rapid and more efficient conduct of proceedings.*******“XV. Within the meaning of this decree, the term ‘Poles’ includes ‘Schutzangehoerige’ or those who are stateless.”[629]
“IV. The State prosecutor shall prosecute a Pole or a Jew if he considers that punishment is in the public interest.
“V. (1) Poles and Jews shall be tried by a Special Court or by the district judge.
*******
“VI. (1) Every sentence will be enforced without delay. The State prosecutor may, however, appeal from the sentence of a district judge to the court of appeal. The appeal has to be lodged within 2 weeks.
“(2) The right to lodge complaints which are to be heard by the court of appeal is reserved exclusively to the State prosecutor.
“VII. Poles and Jews cannot challenge a German judge on account of alleged partiality.
“VIII. * * * (2) During the preliminary inquiry, the State prosecutor may order the arrest and any other coercive measures permissible.
“IX. Poles and Jews are not sworn in as witnesses in criminal proceedings. If the unsworn deposition made by them before the court is found false, the provisions as prescribed for perjury and false statements shall be applied accordingly.
“X. (1) Only the State prosecutor may apply for the reopening of a case. In a case tried before a Special Court, the decision concerning an application for the reopening of the proceedings rests with this court.
“(2) The right to lodge a plea of nullity rests with the State prosecutor general. The decision on the plea rests with the court of appeal.
“XI. Poles and Jews are not entitled to act as prosecutors either in a principal or a subsidiary capacity.
“XII. The court and the State prosecutor shall conduct proceedings within their discretion and according to the principles of the German law of procedure. They may, however, deviate from the provisions of the German law on the organization of courts and on criminal procedure, whenever this may appear to them advisable for the rapid and more efficient conduct of proceedings.
*******
“XV. Within the meaning of this decree, the term ‘Poles’ includes ‘Schutzangehoerige’ or those who are stateless.”[629]
It will be noted that the procedural rules became progressively more summary and severe as the military situation became progressively more critical.
A major development in the Nazification of the judicial system appears in the establishment of the “People’s Court” which was subdivided into a number of senates or departments. We quote:
“When the Supreme Court acquitted three of the four defendants charged with complicity in the Reichstag fire, its jurisdiction in cases of treason was thereafter taken away and given to a newly established ‘People’s Court’ consisting of two judges and five officials of the Party.”[630]
“When the Supreme Court acquitted three of the four defendants charged with complicity in the Reichstag fire, its jurisdiction in cases of treason was thereafter taken away and given to a newly established ‘People’s Court’ consisting of two judges and five officials of the Party.”[630]
The act of 24 April 1934 which established the highly flexible definitions of high treason also provided new judicial machinery for enforcement.
“Article III, section 1. (1) For the trial of cases of high 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.”[631]
“Article III, section 1. (1) For the trial of cases of high 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.”[631]
In section 3 (1) of article III it is provided that “the People’s Court is competent for the investigation and decision in the first and last instance in cases of high treason * * *”, and in other specified cases.
“Article III, section 3. (2) The People’s Court is also competent in such cases where crimes or offenses subject to its competence constitute at the same time another punishable act.“(3) If another punishable act is in factual connection with a crime or offense subject to the jurisdiction of the People’s Court, the trial against the perpetrators and participants of the other punishable act may be brought before the People’s Court by way of combination of the respective cases.”*******“[Article III] section 5. (2) Against the decisions of the People’s Court no appeal is permitted.”
“Article III, section 3. (2) The People’s Court is also competent in such cases where crimes or offenses subject to its competence constitute at the same time another punishable act.
“(3) If another punishable act is in factual connection with a crime or offense subject to the jurisdiction of the People’s Court, the trial against the perpetrators and participants of the other punishable act may be brought before the People’s Court by way of combination of the respective cases.”
*******
“[Article III] section 5. (2) Against the decisions of the People’s Court no appeal is permitted.”
On 1 December 1936, the jurisdiction of the People’s Court was extended to include violation of the law against economic sabotage. (supra.)
On 14 April 1939, the system was extended to Bohemia and Moravia. We quote:
“[Section 1] (2) Furthermore, the Supreme Reich Court and the People’s Court will carry out jurisdiction for the Protectorate Bohemia and Moravia.”[632]
“[Section 1] (2) Furthermore, the Supreme Reich Court and the People’s Court will carry out jurisdiction for the Protectorate Bohemia and Moravia.”[632]
The extent of jurisdiction was defined as follows:
“Section 6. (1) German nationals are subject to German jurisdiction in the Protectorate of Bohemia and Moravia.“(2) Persons who are not German nationals are subject to German jurisdiction for offenses—“1.to which German criminal law applies,“2.if they are prosecuted under a private action provided the action has been brought by a German national.*******“Section 7. German jurisdiction in the Protectorate of Bohemia and Moravia excludes jurisdiction by the courts of the Protectorate unless otherwise provided.“Section 8. The German courts in the Protectorate of Bohemia and Moravia administer justice in the name of the German people.”[633]
“Section 6. (1) German nationals are subject to German jurisdiction in the Protectorate of Bohemia and Moravia.
“(2) Persons who are not German nationals are subject to German jurisdiction for offenses—
“1.to which German criminal law applies,
“2.if they are prosecuted under a private action provided the action has been brought by a German national.
*******
“Section 7. German jurisdiction in the Protectorate of Bohemia and Moravia excludes jurisdiction by the courts of the Protectorate unless otherwise provided.
“Section 8. The German courts in the Protectorate of Bohemia and Moravia administer justice in the name of the German people.”[633]
By the law of 16 September 1939, provision was made for extraordinary appeal against final judgments. We quote in part:
“Article 2, section 3. (1) Against legally valid sentences in criminal proceedings the senior Reich prosecutor at the Reich Supreme Court can file an appeal within one year after they have been pronounced, if, because of serious misgiving, concerning the justness of the sentence, he considers a new trial and a new decision in the cases necessary.“(2) On the basis of the appeal, the Special Penal Senate of the Reich Supreme Court will try the cases a second time.“(3) If the first sentence was passed by the People’s Court, the appeal is to be filed by the senior Reich prosecutor at the People’s Court, and the second trial is to be held by the Special Senate of the People’s Court. The same applies to the sentences of courts of appeal in cases which the senior Reich prosecutor at the People’s Court had transferred to the public prosecutor attached to the court of appeals, or which the People’s Court had transferred for trial and sentencing to the courts of appeal.*******“Section 5. (1) The Special Senate of the People’s Court consists of the president and of four members.”[634]
“Article 2, section 3. (1) Against legally valid sentences in criminal proceedings the senior Reich prosecutor at the Reich Supreme Court can file an appeal within one year after they have been pronounced, if, because of serious misgiving, concerning the justness of the sentence, he considers a new trial and a new decision in the cases necessary.
“(2) On the basis of the appeal, the Special Penal Senate of the Reich Supreme Court will try the cases a second time.
“(3) If the first sentence was passed by the People’s Court, the appeal is to be filed by the senior Reich prosecutor at the People’s Court, and the second trial is to be held by the Special Senate of the People’s Court. The same applies to the sentences of courts of appeal in cases which the senior Reich prosecutor at the People’s Court had transferred to the public prosecutor attached to the court of appeals, or which the People’s Court had transferred for trial and sentencing to the courts of appeal.
*******
“Section 5. (1) The Special Senate of the People’s Court consists of the president and of four members.”[634]
On 21 February 1940 the jurisdiction of the People’s Court was redefined and again extended to cover high treason, treason, severe cases of damaging war material, failure to report an intended crime, crimes under section 5 (1) of the decree of 28 February 1933 concerning protection of people and State; crimes of economic sabotage, crime of undermining German military efficiency, and others.
On 6 May 1940 a broad decree was issued concerning the jurisdiction of German courts for the “territory of the Greater German Reich.” That decree provided:
“German criminal law will be applied to the crime of a German national, no matter whether it is committed in Germany or abroad. For a crime committed abroad, which according to the laws of the place of commitment is not punishable, German criminal law will not be applied, unless such action would constitute a crime according to the sound sentiment for justice of the German people on account of the particular conditions prevailing at the place of commitment.”[635]*******“Paragraph 4. German criminal law will be applied also in case of crimes committed by a foreigner in Germany.“German criminal law will be applied to crimes committed by a foreigner abroad, if they are punishable according to the penal code of the territory where they are committed, or if such territory is not subject to any jurisdiction and if—“1. the criminal has obtained German nationality after the crime, or“2. the crime is directed against the German people or a German national, or“3. the criminal is apprehended in Germany and is not extradited, although the nature of his crime would permit an extradition.“German criminal law will be applied to the following crimes committed by a foreigner abroad, independently of the laws of the place of commitment:“1. Crimes committed while holding a German governmental office, as a German soldier or as a member of the Reich Labor Service (Reichsarbeitsdienst) or committed against a holder of a German office or the State or the Party, against a German soldier or a member of the Reich Labor Service, while on duty or relating to his duty;“2. Actions constituting treason or high treason against Germany,” and in other special cases.
“German criminal law will be applied to the crime of a German national, no matter whether it is committed in Germany or abroad. For a crime committed abroad, which according to the laws of the place of commitment is not punishable, German criminal law will not be applied, unless such action would constitute a crime according to the sound sentiment for justice of the German people on account of the particular conditions prevailing at the place of commitment.”[635]
*******
“Paragraph 4. German criminal law will be applied also in case of crimes committed by a foreigner in Germany.
“German criminal law will be applied to crimes committed by a foreigner abroad, if they are punishable according to the penal code of the territory where they are committed, or if such territory is not subject to any jurisdiction and if—
“1. the criminal has obtained German nationality after the crime, or
“2. the crime is directed against the German people or a German national, or
“3. the criminal is apprehended in Germany and is not extradited, although the nature of his crime would permit an extradition.
“German criminal law will be applied to the following crimes committed by a foreigner abroad, independently of the laws of the place of commitment:
“1. Crimes committed while holding a German governmental office, as a German soldier or as a member of the Reich Labor Service (Reichsarbeitsdienst) or committed against a holder of a German office or the State or the Party, against a German soldier or a member of the Reich Labor Service, while on duty or relating to his duty;
“2. Actions constituting treason or high treason against Germany,” and in other special cases.
Certain additional provisions intimately affecting the rights of accused persons deserve special mention.