Chapter XXXVI: Part 2: Extraordinary Objection Ausserordentlicher Einspruch

Article 3

Extraordinary Objection to final judgments [rechtskraeftige
Urteile][231]

(1) Against final penal sentences the Chief Reich Prosecutor at the Reich Supreme Court can file an objection within 1 year after the sentence has become final, if, because of serious misgivings as to the justness of the sentence, he deems a new trial and decision in the case necessary.

(2) On the basis of the objection, the special penal senate of the Reich Supreme Court will try the case a second time.

(3) If the first sentence was passed by the People’s Court, the objection is to be filed by the Chief 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 sentences of courts of appeal in cases which the Chief Reich Prosecutor at the People’s Court has transferred to the public prosecutor at the court of appeal, or which the People’s Court has transferred for trial and sentence to the court of appeal.

(4) If there is a connection with a case which is under the jurisdiction of the military courts, the proceedings can be transferred to the jurisdiction of the armed forces by agreement between the Reich Minister of Justice and the Chief of the High Command of the Armed Forces. On the basis of the objection the case will then be decided by the special senate of the Reich Supreme Military Court (art. 410b of the Military Code of Criminal Procedure).

* * * * * * *

Fuehrer Headquarters, 16 September 1939

The Fuehrer and Reich Chancellor
ADOLF HITLER

The Reich Minister of Justice
DR. GUERTNER

The Chief of the High Command of the Armed Forces
KEITEL

EXTRACTS FROM THE TESTIMONY OF DEFENDANT LAUTZ
CONCERNING THE EXTRAORDINARY OBJECTION[232]

_DIRECT EXAMINATION_

* * * * * * *

DR. GRUBE (counsel for defendant Lautz): When, in effect, did you assume your office as Chief Reich Prosecutor at the People’s Court?

DEFENDANT LAUTZ: Due to illness, I only assumed office on 20 December 1939, in Berlin.

* * * * * * *

Q. * * * Witness, first of all what general remarks do you have to make on the subject of the extraordinary objection?

A. The extraordinary objection, which was introduced in 1939, was based on a bill which had already been drafted. The purpose was to be able to correct obvious mistakes in judicial decisions, and thereby to effect uniformity in the practice of the courts.[233]

Q. In article 2, section 3 of the law of 16 September 1939, it says: “Against final criminal sentences, the Chief Reich Prosecutor at the Reich Supreme Court can file an objection within 1 year after the sentence becomes final, if, on account of serious misgivings against the justness of the sentence, he deems a new trial and decision in the case necessary.” In paragraph 3 of the same section, it says, “If the first sentence was passed by the People’s Court, the objection is to be filed by the Chief Reich Prosecutor at the People’s Court, and the second trial is to be held by the special senate of the People’s Court.” According to this, one should assume that the two Chief Reich Prosecutors were those who had to decide whether an extraordinary objection was to be made or not. Please comment on this.

A. This assumption would be incorrect. According to all the regulations and the constitutional basis of this law, it was without doubt that such a far-reaching statement could be made only by the head of the State for the government, because the extraordinary objection repealed the sentence which had been pronounced, and returned the case to the stage at which it was before the trial. Thus, if an extraordinary objection was raised, a new trial had to take place as if nothing had happened before. Therefore, through internal instructions, it was assured that the two Chief Reich Prosecutors, the one at the People’s Court and the other at the Reich Supreme Court, could raise an extraordinary objection only by virtue of an order of the Minister of Justice as the representative of the leadership of the State. And this is not expressed in the law because according to the German conception of a trial, the Minister of Justice cannot make any direct statements in a trial. The two Chief Reich Prosecutors, therefore, made these statements, as I said, only from case to case on orders of the Minister, which as a rule, were even issued so unequivocably that the statement which had to be made, with the reasons for it, was in each case prescribed to the Chief Reich Prosecutors. Thus, the Chief Reich Prosecutor just as the other authorities, for instance, the attorneys general or the presidents of the courts were not prevented, if they thought that there was a cause for it, from suggesting on their own to the Minister of Justice that he should issue such an order.

Q. Witness, the material decision as to whether an extraordinary objection should be raised or not was thus made in the Ministry?

A. The material decision was made exclusively by the Minister of Justice. That is, only he personally made it on the basis of a report made to him by his Referent personally. In particular it was like that; in case of every decree issued by the Ministry it had been assured that either by the signature of the Under Secretary or the Minister, or the division chief, it was made clear that the decision had actually been made by the Minister in this case.

Q. Did you ever raise an extraordinary objection without having an order from the Minister?

A. That never happened.

Q. You just said that the two chief Reich prosecutors as the officials, as supervising authorities of the administration of justice, for example, attorneys general, presidents of the courts of appeal, etc., had the right to suggest to the Minister of Justice that he should issue an order to raise an extraordinary objection. Did you make use of that possibility?

A. I only did so very infrequently on my own initiative. I still remember a few cases in which sentences pronounced by the senate presided over by Freisler were concerned. We were _per se_ not very much inclined to attack sentences pronounced by our own court by such a legal recourse. However, Minister Thierack, though not much inclined to admit objections, occasionally could be made to do so in cases presided over by Freisler. The cases which are pertinent here, I may perhaps describe briefly. The first Senate of the People’s Court in one case had condemned a person to death because of treason. The facts were as follows: The defendant had transferred a model 38 machine gun into the hands of the enemy; he had obtained the machine gun and given it to an enemy agent. The enemy had known about this machine gun for a long time because they had captured many of these machine guns on the battlefield. Thus, only attempted treason could be the case, and the indictment was filed in that manner. Nevertheless, the Senate passed the death sentence. Here the extraordinary objection was permitted. A second case was a death sentence against a member of the Protectorate, the opinion of which consisted of three-quarters of a page by Freisler. In this case I suggested that this was not an opinion at all, since from the facts one could not find out at all what the defendant had done; and because of this legal mistake the extraordinary objection should be allowed. This extraordinary objection, therefore, was permitted.

Q. Witness, could the defense suggest an extraordinary objection?

A. Yes, the defense counsel could do it, too. The contents of such petitions frequently showed that pure clemency reasons were used by them as arguments in favor of an extraordinary objection, and not basic legal questions. In such cases it was suggested to them that they make a clemency plea. But, if the extraordinary objection was based on such grounds that there was a hope that it might succeed, I submitted it to the Minister of Justice and supported it. However, and I have stressed that here before, it was very difficult to get Thierack to allow extraordinary objection to be made in favor of a defendant.

Q. May I interpolate a question? Were you, as chief prosecutor, the competent official who had to deal with such extraordinary objections?

A. No, no, that was the Chief Reich Prosecutor of the Reich Supreme Court at Leipzig.

Q. Can you tell us something as to whether extraordinary objection was made frequently?

A. During the early part of the war, when the extraordinary objection was introduced, that is, until approximately 1942, it was a very infrequent occurrence. It was altogether the exception that it was made. From that time onward, however, their number increased slowly, but I cannot even give a rough estimate as to the number of extraordinary objections that were ordered. Originally, the Ministry of Justice, if a report was made by me as to whether an extraordinary objection was to be made--for example, in the case of a sentence passed by the court of appeals--originally the ministry was agreeable to my using again and again the phrase that the sentence gave rise to misgivings on some points, but these points were by no means of such a serious nature that the unusual recourse of the extraordinary objection should be used. That became different only when the new chief of Department IV of the Ministry of Justice, Ministerialdirektor Vollmer, assumed office. I asked him about this one day, and inquired from him how it was that these days the Minister more frequently ordered an extraordinary objection to be made. In reply he said, since the Fuehrer decree of August 1942, Thierack had all authority in the field of the administration of justice and, therefore, in the sphere of the extraordinary objection, too, he had more scope than hitherto.

* * * * * * *

PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112

DECREE OF 21 FEBRUARY 1940 CONCERNING THE NULLITY PLEA

1940 REICHSGESETZBLATT, PART 1, PAGE 405

Decree concerning the jurisdiction of the criminal courts, the Special Courts, and additional provisions of criminal procedure of 21 February 1940.

* * * * * * *