On the one hand a strong personal desire to manifest his influence and ambition which on the other hand is contrasted by an equally great positive quality. Undoubtedly he is a man cognizant of his purpose, possessing an unusual intellect through which unjustly he runs the danger of being considered especially responsible. On the other hand he is completely devoid of vitality so that there is a cleavage in his character as a whole which he has not overcome even up to this present time. Opposed to the clarity and ambition in his very own judicial field stands the uncertainty in fundamental questions of politics and philosophy which extend beyond his professional spheres. This explains his credulity in which he acquiesces in a political leadership that almost overwhelms him with its unconditional demand for political power. To correct this picture, it must be interpolated at this point that the rational and reasonable trait of his character does not blind him. He sees improprieties, he has a sense for injustice and he attempts again and again in spite of many disappointments to fight then. He attempts to supplement that which he lacks in vitality by drawing energetic persons of character into his sphere. He constantly demands practical experience as the most important factor for the education of the rising generation of jurists as well as for the body of judges, even though he himself is undoubtedly not a man of practical experience who is in constant touch with life, but is rather clearly inclined to academic life, to doctrinarianism.
This it is significant for his case that he entertains the highest regard for the Anglo-Saxon law and the judiciary, but on the other hand represents as a type of a judge and jurist more that of the systematic person and theoretical jurist.
This conflicting nature of his character is projected naturally into his actions and life and reappear there. In his case this is not simply a question of a dual personality in the sense as found in Faust's "Two spirits dwell, alas, within my breast.
...", nor of the polarity of the human character in general. The condition of tension within him is unsnarled, a result of the over emphasis of the intellectual factor contiguous with an exceptional energy, which however finds its basis in an insufficient amount of vitality. Thus, his entire personality easily assumes a high-strung nature on the one hand, however on the other hand exercises a quality of inflexible self-control owing to the extraordinary exertion of energy end willpower. which explains the unusual tension under which he lives and suffers. The alleged contradictions in his testimony have nothing to do with "untruthfulness", but are only subconscious outward signs of his dual personality. Only a part of the contradictions which appeared during the course of the trial can be explained from the normal contrast between principles and conscious acts, which is unavoidable in every public or political activity.
Despite the accuracy of the above characterization one thing should not be overlooked. If his political lack of instinct, which follows from the above, (see affidavits Prof. Fieseher and Dr. Wiegelmesser, Rothenberger Exh. 9 and 10) led Dr. Rothenberberger into grave dangers of which he was aware, then the call to reason and conscience never died within him. Tragic conflicts were unavoidable because a tyrannical, political world of thought wanted to possess him, and did so to some extent, but against which he rebelled time and again. This rebellious attitude, which arose from purely fundamental and positive motives, was the deeper reason for his release from the department as Under-Secretary. The unceasing difficulties which he encountered on the part of Thierack, the SS, etc, were only the outward signs for this. I would only like to call attention to the delay caused by Thierack attendant to the publication of his book which was defended on the grounds that an examination of the contents by the Party Chancellery and the SD was necessary; and to the attempt of Dr. Thierack in January of 1943 to railroad Dr. Rothenberger to the Reich Court; and to the proposal that he be appointed Second Under Secretary to the Director of the Reich Chancellery Dr. Lammers, and finally to the refusal, to effect his discharge in April of 1943 mentioned by Dr. Rothenberger not to mention the investigation proceedings begun against Dr. Rothenberger for alleged illegal acquisition of furniture.
As to the facts behind Dr. Rothenberger's discharge, the memorandum of the witness Dr. Segelken (Rothenberger Exh. 77) written in January of 1944, presents a graphic picture. There can be no doubt that Dr. Thierack and Martin Bormann considered Dr. Rothenberger unfit for further duties in the judiciary for essential reasons. In spite of his efforts to maintain his belief in an idealized form of National-Socialism which last but not least arose out of the realization of the abuses of which he became aware through actual experience, Dr. Rothenberger was never a real advocate of the party. Dr. Thierack and the Party Chancellery, not to mention Himmler, considered him to be so little a worthy National-Socialist and advocate of the party, that they discharged him in an insulting manner without offering him another position, a pension, or the like.
It must be mentioned in connection with the above statements, that Dr. Rothenberger's testimony during cross-examination was not shaken, and that his statements with regard to his intentions and plans in the judiciary of Hamburg and finally Germany were salient and fundamentally correct.
XV. Legal arguments.
After the foregoing dealt with the characteristics of the facts of the individual cases and with Dr. Rothenberger's personality, there now follow some general legal arguments. The forms of participation mentioned in Article II, Paragraph 2 of Control Council Law No. 10 comprise in a comprehensive and most general way all imaginable rela tions of a perpetrator to the criminal act.
Obviously they were not established with a view to a differenciation and gradation according to different degrees of intensity of a criminal participation, and they contain side by side objective and subjective elements. Out of the extraordinarily vast extent of the forms of participation the Nurnberg Military Tribunals' administration of justice has already developed guiding principles for the establishment of responsibility. Following in the essential parts the judgment in the Milch-case, they can be formulated as follows:
1) What charges exist objectively, which facts of the case are given?
2) Did the defendant personally participate in the facts on which the indictment is based?
3) If he did not participate in person, were the actions on which the indictment is based carried out at his orders or under his supervision?
4) If this was the case:
a) Did he know of the actions indicted as crimes?
b) Did he have the power and the opportunity to prevent these actions?
c) If he had the power and the opportunity, did he fail to intervene and did he in such way become a particeps criminis and an accomplice?
First of all let us examine the incriminating facets of the case as such, as given by the Control Council Law No. 10.
It is expedient to start from the conception of "Crimes against Humanity" as specified in article II/c since with the exception of some peculiarities which arise from the character of violation of the laws and usages of war, it is in its construction identical with the conception of the war crime. Accordingly the actions of the defendants have been indicted in this trial under the aspect of war crimes as well as of crimes against humanity. In the enumeration, in the form of examples, of the individual crimes against humaniry we find different types of facts of criminal cases:
individual crimes such as mender, deprivation of freedom which have been standardized in the penal codes of all civilized nations, and mass crimes such as extinction, enslaving, deportation and finally persecution for political, racial or religions reasons. It is obvious that, independent of the classification in regard to criminal law which the law of the individual states had passed upon them already, all abovementioned types of violation are supposed to receive a special new meaning through the wording of the Control Council Law. This is inherent in the guiding conception "Crimes against Humanity". Murder and deprivation of freedom - here the motives of the perpetrator are decisive - are not necessarily bound to violate humanity, human behavior, a conception of which the German translation as "Menschlichkeit" is not entirely correct. The attack on the dignity of man is intended to be subjected to punishment. This is even clearer in the case of mass crimes where the lack of selection and the enormous numbers in which they are committed, alone reveal that the dignity of man is trampled upon. In the third group finally, in the case of persecution for political, ****** or religious reasons it is exactly the human personality and its dignity, to be respected in its substance, which constitutes the specific value to be protected. Therefore, the "Crime against Humanity" must be regarded as a newly created, independent violation in itself. This does not exclude that the moral conceptions on the basis of which it was standardized have for a long time already been common property of the civilized nations. The nature of the human personality is violated by the political power. Therefore one can, as a German jurist recently put it. (compare Guede in "German Periodical for Law - "Deutsche Rechtszeitschrift" - 2nd annual set, No. 4, page 111 ff.) characterize the essence of the crime against humanity as "misuse of political power". The fact that this value of human dignity is, first of all, an ethical and even the highest ethical value, is obvious.
The question is whether, and to which extent, its Court No. III, Case No. 3.transformation into a legal value is possible at this time.
The fact that Control Council Law No. 10 established the crime against humanity as a criminal fact does not free us from the necessity of answering this question. Thus we arrive at the problem of proving the concep tion of "Crime against Humanity" to a standard in criminal law. This investigation is the more necessary since fee issue in question is a fundamental conception of the new international respectively interAllied criminal law. In order to outline the problem more clearly, a practical example should be cited first. Recently PEIKOFF, a formerly leading politician in Bulgaria which has close ideological ties with Russia, a signatory power to Control Council Law No. 10, was sentenced to death. According to Anglo Saxon opinion PETKOFF was a political persecutee in the sense of Control Council Law No. 10 and, therefore, his death sentence constituted a "Crime against Humanity". According to Bulgarian opinion his death sentence was the legal result of legal and legitimate proceedings against a criminal and traitor. This example and many similar cases show the impossibility of arriving, even among the signatory powers alone, at a uniform definition of whether or not someone is to be regarded as a "political persecutee". On the one hand the signatory powers have established the crime of "political persecution", on the other hand they are incapable of a uniform interpretation. Therefore this cannot be a question of a legal standard, or any standard at all since this standard is a contradiction in itself and therefore cancels itself. Therefore it cannot be "valid" either, whether in the sense of a standard or in that of facts. Should one object to the effect that a standard according to which no human beings natural rights may be violated arbitrarily, was absolutely necessary under all circumstances, then this is true but only as far as the ethical capacity of such standard is concerned as such, as a moral demand addressed to the individual man, it remains valid. However, it cannot be a legal standard. Legal standards, especially those of criminal law, are rules of a community, that is of a legal community, in this case that of the Court No. III, Case No. 3.legislating signatore powers, which justify the individuals obligations toward other individuals and toward the community.
However, to this obligation on the part of the individual corresponds the obligation on the part of the legal community to ensure, in the interest of the legal security of the people subject to its order, a uniform interpretation, free of contradictions, of the legal standards it created. If this is not possible, a legal standard cannot exist either. The objection that the validity of a legal standard does not depend upon being actually conformed with by all everywhere within the jurisdiction of a legal community, amounts to a wrong inference. It is correct that if a legal standard, free of contradiction in itself and clearly defined by the legislator, exists within a territory under one law, its validity does not depend upon being conformed with in all cases and by all. Here, however, the very problem is that this supposition does not exist. In the present case a uniform interpretation of the conception of political persecution cannot be deducted from a super-legal development of law taken from the community of all civilized nations. Here it is clearly a case of decreed law, the meaning of which can be and must be defined by the legislator.
The above arguments show that principle which are still the object of disagreement, and of considerable conflicts between political powers, are by their nature not suited to serve as legal standards.
They lack sufficient clearness and stability to guarantee that they can be applied as a practical legal criterion. Here the problematic character of the conception of the crime against humanity becomes evident and the fluctuating borderline between law and politics appears clearly. Now the question is whether the conception of "Crime against Humanity" therefore lacks any legal meaning. This conclusion cannot be drawn. It is true that the above arguments revealed that a concrete and, as far as its contents are concerned fixed political conviction cannot be taken as a starting point on determining the positive legal content of the "Crime against Humanity". In order to obtain the Court No. III, Case No. 3.general meaning of the conception one must, therefore, draw abstract conclusions.
That means, for example, that the English economy cannot be considered as exploitation and grave violation of the natural rights of the proletariat merely because it is developing on the basis of a liberal, capitalist system. A Bolshevik administration of justice, on the other hand, cannot be considered as an inhuman, system of justice on the grounds that collectivistic convictions would, of necessity, have to involve a violation of the individuals personality. Therefore the legal facts of the crime against humanity will have to be formulated approximately like this.
A crime against humanity is any attitude which in interfering with individual rights oversteps the limits set in a state in accordance with its own internationally recognized order and which, while doing so, violates human dignity in an arbitrary and malicious manner.
At this point at seems necessary to point out the importance of two legal conceptions which the German law in its stronger efforts in the direction of system has developed and saparated more clearly than Anglo-Saxon law. These are the conceptions of causality and of guilt.
A connection between perpetrator and crime is established by the purely causal connection between perpetrator and crime, and by the perpetrator's criminal mental attitude in regard to the act. Causality concerns the question as to which effect, and which consequences can, according to reasonable opinion, be traced back no a person's attitude. In connection with the problem of guilt, the question is put whether in regard to the crime the perpetrator can be considered guilty, in other words, whether the perpetrator was conscious, and felt guilty, of the crime; at this point again a practical example, which offers itself during the present trial, shall be the starting point.
If under National-Socialist rule in 1942, during the war, Czechs were sentenced to death for High Treason and treason and executed after they had not been pardoned then these sentences had first been de Court No. III, Case No. 3.manded by the prosecutor, been passed by the Court, and an act of clemency had been refused by the Ministry.
It would without doubt be unjustified to consider these actions as decisively causal in regard to the actual result of the execution because one thing is sure: that in contrast to the one cause in the persons of the prosecutor, judge, etc. the real and decisive cause which surpasses all others was the fact that without the least help from the above - mentioned persons Hitler had, years ago, occupied Czechoslovakia, as a consequence of which German law was introduced. In considering the prosecutor, etc. responsible for the consequences of these historical and fatal actions of Hitler, one overlooks the fact that causality has really ceased to exist and that the actual result of the sentences dutifully passed on the Czechs cannot be traced back to the attitude of the prosecutor as the cause. It is just as impossible to establish a guilt of the above mentioned persons - if, as is, the fulfillment of their professional duties cannot be called guilt - by making them in reality more or less criminally responsible for the historical decision of a dictator. In this connection, a differentiation between a higher and a lower official, for example between an attorney-general (Reichanwalt) and a prosecutor would not be able to establish a higher decree of responsibility of the former because in regard to Hitler's fatal foreign policies both of them were equally and completely unimportant.
In regard to causality as well as to guilt, in short, in regard to responsibility, there exists an incongruity between the accused perpetrators and the extent of the actual consequence. This incongruity also makes the fluctuating borderline between law and politics visible.
At the beginning of the legal arguments it was established that the conception of the crime against humanity, contained in the Control Council Law, is a new creation of the legislator.
Therefore there exists the retroactivity of Control Council Law No. 10. The question is whether this amounts to a violation of the sentence: "nullum crimen sine lege" and: A legalistic discussion Court No. III, Case No. 3.of this question leads to no other result than recognition of the fact that the criterion of German and of Anglo-Saxon opinion are completely different.
Taking a closed system of law for a basis, the German opinion unexapably arrives at the conclusion that in the German legal system, which is mainly a system of laws, the conception of the crime against humanity does not exist.
Since Anglo-Saxon law does, in the first place, not take a closed legal system or a system of laws for a starting point but, to a far greater extent, the unwritten law, customary law and general legal standards, it is easily possible to base the fundamental idea of the crime against humanity on a standard of punishment deducted from, so to speak, natural law, a standard which is supposed to have existed, and to have been inherent in all penal codes of the civilized nations, for a long time already. Behind such arguments, however, stands the purely pragmatical consideration that punishment for extraordinary crimes is a necessity. A violation, at least of the principle "nulla polma sine lege" might be considered as existing.
It is indeed true that the leadership of the German Reich committed extraordinary crimes which, apart from all outer effects on alien nations and human belongs, had inner effects which proved to he the most fatal of all to the German people. Alien nations were exposed to a dictatorial power to which they offered resistance or by which they were defeated. The German nation, however, has been deeply humiliated in its inner feelings by a monstrous misuse of her best abilities, Despite the crimes committed, it should be pointed out that decreeing the retroactivity of laws places a great responsibility upon the Court. This responsibility also consists in the creation of the obligation to examine whether the decreed retro-activity in connection with other circumstances (the wide frame of forms of participations, exclusion of reasons for the exclusion of guilt and punishment) does not create the danger that Control Council Law No. 10 might in an extraordinary and unjustified manner be applied to too wide circles.
Court No. III, Case No. 3.
The prosecution considered the introduction of an analoguous application of law in article 2 of the German penal code as an expression of National Socialist legal policies. Some remarks on this problem might seem advisable.
Without a doubt, Par. 2 of the Penal Code with the introduction of the analogy introduced a method of law into German penal law is basically and consciously different from the earlier systematics and theoretical jurisprudence. The similarity with the Anglo-Saxon legal thinking was unmistakable; the reference to the basic idea of a different law, as well as the further reference to the fact that a certain action unconditionally demands punishment "according to sound national feeling". The weak point does not lie in the analogous legal application as such, but only in the concept of the "sound national feeling". If this had been really "sound", there would have been no objections at all against Par. 2 of the Penal Code. But because this "sound national feeling" was in reality a pleasing pattern for making effective the demands desired by the opportunity, the basic idea of a reasonable development of law which was correct in itself, had per force to lose its value.
XVI. Conclusions.
The defense has endeavored to give the most unvarnished picture possible of the person and activity of Dr. Rothenberger. I would like to point to the detailed evaluation made on my part. That fate brought him together with Dr. Thierack was not predestined by the nature of things, but was an accident - even it a fateful one of his life. The individual stages and bitter experiences of his time of office in Berlin up until his departure, which was outrageous in the extreme, prove more than all words. An easy-going Party member would never have been treated in such a manner. It is all too well known that when such creatures must leave their offices because of corruption and so on, they are rewarded by bribes of new, mostly higher positions. There can be no doubt that Dr. Rothenberger fought a serious, Court No. III, Case No. 3.never-ceasing and for him very dangerous fight which brought him gradually into ever stronger opposition to the circles around Himmler and Martin Bormann.
Without forced mental constructions it is, therefore, intrinsically probable and credible when Dr. Rothenberger declares that he had nothing to do with the inhumanities with which he is reproached, particularly with regard to Jews. Must it not appear as impossible that, when he helped rescue the goods of a Jewish citizen from the letter's buring house, in spite of an SA Fuechrer's order to the contrary, he willingly and consciously had taken part a short time before in planning extermination of Jews.
Your Honors, I ask for Dr. Rothenberger's full acquittal from all counts of the indictment."
I now arrive to the conclusion of my plea, and would only like to express a few short thoughts in conclusion. I know the defendant Dr. Rothenberger, have personally known him since 1918--that is, for decades already. I have watched his political and personal career in great detail. In intervals of years re have seen each other, sometimes not for years.
But we carefully observed our mutual career, I have observed his career from then ****** I believe in a certain critical way---and therefore as a defense counsel I did not only encounter the usual difficulties of a defuse counsel who always has discrepancies with his client in regard to his desires as to what is to be presented and is unable to present it in the manner in which his client desires him to do. I imagine and I believe I have approached this with a natural broad-mindedness and factual experience. I have examined his statements and have tried to express what I saw fit. I did so because in the final analysis, I am convinced that only if one is possible to suppose the actual background of a personality as well as the actual background of the time itself--only if one can describe that truthfully--it is possible to defend a man convincingly and truthfully.
Therefore, in connection with Dr. Rothenberger, if you will Court No. III, Case No. 3.permit me to say so, this has been of enormous difficulty because the impression of his rationalistic personality is a different one from what he actually basically in his heart desired and strove to achieve.
If this defense had one goal and one aim. It was nothing but the following: to show up this discrepancy between his personality and to show that it was something different and something further going than the usual denying to the external world and revealing and making secrets of facts in order to save himself.
The impression arises here that many facts, many words, many deeds on the part of Dr. Rotherberger here given an entirely eroneous picture as to his personality because the final decision as to clarity-if I may say so--was not made by him. The political circumstances, the power for political force, due to his lacking vitality was too strong for him to express his real and, as I can personally testify to, honest decision and attitude toward constitutional maintenance of constitutional lines. He had to stop half-way and therefore he exposed himself to the impression that he participated in a system which must be considered as criminal.
I do not expect Your Honors to accept this as just a personal opinion of mine which looks all testimony and evidence. Throughout these proceedings I have avoided bringing up this personal motive and permitting it to appear on the surface. But at the end, will you permit me to do so with these few words. If I may claim any confidence at all that Your Honors will believe me in my capacity as defense counsel, I feel all the more authorized to do so because I know that there are a certain number of other important personages, as the present minister of the Western Zone, Dr. Kieselbach, the President of the District Court of Appeals Ruschewey, the President of the Attorneys' Chamber, Professor Fischer, and the First Mayor of Hamburg Dr. Petersen after the collapse, agree with my opinion.
Your Honors, I feel it is decisive to grasp the basic elements of his development and to see them in their proper light and to recogniza Court No. III, Case No. 3.that ha desired something which conformed with the idea of dignity of man and liberty of judicial proceedings which we strove for.
And he not only represented this concept but he claimed to have reached it. On the other hand, due to a tragic and incidental interlinking of his fate with that of an enormous political power, he was brought into the danger of being identified with crimes which is anormous. But one thing is not justified, namely, that a heavy sentence inflicted on my client, Dr. Rothenberger. I, therefore, beg that these statements be accepted as highly personal expressions of my person, who has known him for 25 years--a quarter of a century--and please evaluate them accordingly in passing your verdict, and have this be a just verdict. I have concluded.
MR. LA FOLLETTE: If your Honors please, the Prosecution recognizes its own fallibility. In checking, it finds that we feel that we feel that we overstated the law in Appendix III and IV. Since it is merely a statement of the law, and since there is obviously a divergence of opinion on the law between the prosecution and the defense, no harm has been done. But I would like to offer now Appendix III as amended and Appendix IV as amended, that they be incorporated into the record in lieu of Appendix III and Appendix IV, which were originally filed. I have copies in German available and copies in English for the Tribunal.
THE PRESIDENT: You may do so. Is it too late to have the change made in the transcript.
MR. LA FOLLETTE: It may be that it's satisfactory, Your Honor. I am not sure that appendixes appear in the transcript at all despite the Court's order.
THE PRESIDENT: If they didn't, you can put in only the amendment.
MR. LA FOLLETTE: Exactly, Your Honor, if I may.
THE PRESIDENT: And will you attend to that with the transcribing notes?
MR. LA FOLLETTE: I will check the transcribable parts. If not, I ask that these be incorporated and considered as the actual statement of the law by the Prosecution.
DR. KOESSL: (for the defendant Rothaug) Your Honors, I do not propose to read the entire final plea. Would you please incorporate the numbered portions into the record? In reading, I will indicate the portions more in detail. I shall indicate the page numbers of the English version.
THE PRESIDENT: The same ruling will be made in your case as in the other cases: the entire argument will be incorporated in the transcript.
DR. KOESSL: Thank you.
May it please the Tribunal!
When discussing the case of the judge who is subject to the law and that of the public prosecutor who is restricted by directives, but has no right to give directives himself, we will also have to study it not within the scope of a national jurisdiction but held against it, the problem to which extent an offcial has to carry out orders and to which extent the judge has to observe the law.
Because of the relativity of all concepts and ideas in the field of the politically good or bad, no state aver allowed any discussion of problems involving such a question. This would, touch on the foundations of any national order.
International law cannot ask such a question without blusing, since its subjects are these very sovereign states which without exception demand and, if necessary, force unconditional obedience and unconditional observance of the law from their organs and this they do unconditionally. it would, however, be unfair to base judgment on an ideal state of affairs instead of taking the world as it actually is.
The objection raised that the legislation of the Third Reich was neither lawful nor legitimate which has been convincingly contradicted by Professor Dr. Jahreis, would not constitute any solution of the problem; it would actually bring out the full range of the difficulties contained in that problem.
I will first discuss certain central questions on the basis of this fundamental problem, which, in view of the short time that has been allotted to the defense can only be touched, and will thus lead to the justification of the way in which my client applied the law and of the discharge of his official duties.
The administration of the law was based on the legislation. The jurisdiction of the Reich Supreme Court, binding in any actual case, and beyond that giving directives was the focus of that administration of the law.
In Germany, the position of the judge was characterized by his absolute subordination to the law.
Some interested witnesses made the supplementary statement, that apart from the law, the judge also had to consult his own conscience; however, neither article 1 of the law concerning the structure of the judiciary nor article 102 of the Weimar Constitution makes any mention of this point. This supplementary prerequisite is self-evident if if means to express that the judge has to listed to this own conscience within the scope of the law. It is, however, misleading, if it is means to say that in case the judge gets into conflicts with his own conscience he is allowed to evade the idea of the law, because exactly this is the characteristic feature of the subordination to the law that in such a case the law has precedence.
The duties of the public presecutors were similarly defined by laws and administrative directives.
Even after 1933 nothing has been changed to these fundamental concepts. (Exh. 123) In order to recognize the inner effects on the administration of justice and or jurisdiction, which resulted from the integration of the NSDAP into the state and the development towards the so-called Fuehrer State, it is necessary to know the powers but also the legal foundations of the position of the NSDAP within the state and towards it.
It was the only party, and was a party only in name, but neither in substance nor with regard to its task.
The Party was an integral part of the State. Its doctrine was the doctrine of the State. Its tasks and goals concerned national politics and were the tasks and goals of a semi-governmental corporation above the State (Rothaug exhibit 36).
For the jurisdiction it was decisive that the will of the legislator was interpreted from the principles of the new State doctrine on which the laws were based.
The German State had at all times the sovereign right to decide freely on a judgment and was not obliged to execute a sentence; the head of the state, now, had also the power to enter his "extraordinary" appeal and thus to extinguish every verdict fundamentally; not by lodging this appeal and not by means of a new verdict, thus making it non-existent.
The creation of these direct means for attacking a verdict was the decisive legal recognition of the Fuehrer as the supreme lord of the judiciary; for it made the existence of the sentence pronounced by the judge dependent upon the confirmation of the head of the state. (ROTHAUG exhibit 27).
The nullity plea which is exclusively in the hands of the administration of justice has a completely different legal basis. ROTHAUG exhibit No. 28 states that it is left to the judgment of the Chief Reich Public Prosecutor of the Reich Supreme Court as one of his official duties, to decide whether he wants to lodge a nullity plea. If he considers the prerequisites for lodging that plea existent, "he has to", as it says verbally, "lodge the nullity plea, since neither he nor the head of the administration of justice has the right to use their own discretion in that respect.
Outside of these safety measures for legal procedures there was also the possibility of a retrial, which, in the case of sentences pronounced by special courts, was permitted in favor of the convicted where the circumstances demanded an examination of the case before an ordinary court (ROTHAUG exhibit 186, 187 ad 188).
Within the area of the Reich all convicted persons had the same right to legal remedies regardless of nationality, ethic origin and race.
The authorities called upon to apply those legal remedies, were supposed to use them if, in their conviction the prerequisites for the application of those remedies were existent. (ROTHAUG exhibit 26). Entirely different from these legal remedies is the way of pardoning as to its character, it legal basis and its purpose, which has been placed exclusively within the power of decision of the head of the state. (Schlegleberger exhibit 68 and 69, document No. 28 and 29).
It cannot replace the legal remedies, for it presupposes logically a final, unappealable decision. The actual reasons for granting clemency cannot be legal reasons, as long as legal remedies are available. If the way of preventing clemency has been tried without any success, the way of apply for a legal remedy continues to exist, as long as there is reason to assume that the factual and legal correctness of a sentence can be contested. (statement of Rothaug, English transcript page 7292/93, German transcript, page 7024/25).
Those are the safety measures, with which the State protects a sentence in order to prefent human insufficiency and fallibility to take effect.
Next to those effects on jurisdiction, of necessity resulting from the law system and the doctrines of state, authority and nest to the legal remedies, the institutions of letters to the Judges and of authoritative guidance of the judiciary by the Ministry of Justice were put into effect notwithstanding the barrier which had been erected in article 1 of the law concerning the Structure of the Judiciary in accordance with the history of Law-against the establishment of a judicial system, which was subjected to orders from higher quarters.