. NMT03-T1083
Volume III · Page 1083
| What has been said with regard to the amendment to section 2 of the criminal code is equally true of the amendment of section 170a of the code by the decree of Hitler of 28 June 1935, which is also signed by Minister Guertner and which provides: |
"If an act deserves punishment according to the common sense of the people but is not declared punishable in the code, the prosecution must investigate whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by the proper application of this penal law." |
| This new conception of criminal law was a
definite encroachment upon the rights of the individual citizen because it
subjected him to the arbitrary opinion of the judge as to what constituted an
offense. It destroyed the feeling of legal security and created an atmosphere
of terrorism. This principle of treating crimes by analogy provided an
expedient instrumentality for the enforcement of Nazi principles in the
occupied countries. German criminal law was therefore introduced in the
incorporated areas and also in the nonincorporated territories, and German
criminal law was thereafter applied by German courts in the trial of
inhabitants of occupied countries though the inhabitants of those countries
could have no possible conception of the acts which would constitute criminal
offenses. In the earlier portions of this opinion we have repeatedly referred to the actions of the defendant Schlegelberger. Repetition would serve no good purpose. By way of summary we may say that Schlegelberger supported the pretension of Hitler in his assumption of power to deal with life and death in disregard of even the pretense of judicial process. By his exhortations and directives, Schlegelberger contributed to the destruction of judicial independence. It was his signature on the decree of 7 February 1942 which imposed upon the Ministry of Justice and the courts the burden of the prosecution, trial, and disposal of the victims of Hitler's Night and Fog. For this he must be charged with primary responsibility. He was guilty of instituting and supporting procedures for the wholesale persecution of Jews and Poles. Concerning Jews, his ideas were less brutal than those of his associates, but they can scarcely be called humane. When the "final solution of the Jewish question" was under discussion, the question arose as to the disposition of half-Jews. The deportation of full Jews to the East was then in full swing throughout Germany. Schlegelberger was unwilling to extend the system to half-Jews. He therefore pro- […posed] |
* 1936 RGB1, I. Page 844.
