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.
Germans, page 6727 and following, 6729 and following), and that, last not least, because he generally distrusted administrative directives.
(Schroeder, English transcript page 7044, German transcript page 6791).
The decree of 1 September 1939, the result of the national emergency according to its purpose, offered no legal means for reprimanding a judge for the pronouncing of too light or too harsh a sentence by transferring him in violation of article 8 of the Law concerning the Structure of the Judiciary. The practical application of the decree in an individual case, as in the case of Rothaug was a misuse, Rothaug exhibit No. 35 states the following print of view of the Ministry. "And there is nobody who is more afraid, that the administration could make wrong use of that liberty in order to reprimand a judge 'who has made himself objectionable' through his sentence, etc." End of quotation. (Rothaug, English transcript, page 6999, German page 6752/53.)
The purpose of the directive, that the public prosecutor should keep in touch with the court, is evidenced by a speech held by Guertner (Rothaug exhibit 3). Its purpose was to avoid before the Public a major discrepancy of the judgment and the penalty proposed by the public prosecution, and to give the public prosecutor the possibility to check his opinion against the of the court with this aim in mind. Its purpose was not to exorcise influence on the court behind the scenes. The question was not as important as it is made today. (Rothaug exhibit 192.)
Rothaug would not admit any discussion on that subject. Today the fact that the public prosecutor had an approximate knowledge of the stand of the court is interpreted as the acceptance of an order. Things however were not like that. (Paulus in the English transcript, page 3787, German page 3747 and Schroeder, English transcript page 704, German page 6790.)
The fact that the contact was established immediately before the final pleas were made rejects the charge that the presiding judge was biaised in his opinion, because he had read through the files before the trial.
The establishment on 36 April 1943 of provisions for disciplinary actions against violations of judicial duties, issued in form of a law and placed in the hands of Hitler, subjected the judge to the political pressure of proceedings against him which gave him no guaranty of an proper trial, even though those provisions remained on paper only. This was, since 1933, the background for the work of the judge and its result the judgement.
II.
Professor Jahreis explained the facts leading up to that situation from the historial, legal and generally psychological view point. (English transcript page 4354, 4264 , 4275, German page 4199, 4209 and 4218).
In its desire to obtain stable conditions, the people, restless and homeless, choose dictatorship coming from the right, in order to escape that from the left.
The position of the judge and public prosecutor who grew up under a different regime with different legal conceptions was a difficult one, because the new state demanded loyalty to its state doctrine. (Schlegelberger exhibit 71, document 78.)
For a man of character and value there was only the alternative to go or to struggle with himself to find an open and honest attitude towards the new political surroundings.
Rothaug, who had nothing to do with the development of that situation, in 1936 finds has inner peace by recognizing that the fateful interindependence with the NSDAP of the state, wanted by the overwhelming majority of the German nation, recognized by the entire world inspite of concentration camps, racial laws and dictatorship, for better or for worse, was a fact. His positive attitude towards the national socialist state resulted from that and became more firmly rooted, the more the pressure from outside finally leading into war increased. Rothaug had no doubts about the just cause of his fatherland. The fate of the fatherland was at stake even if the German people through deception and through crimes committed by its leaders had been led into that terrible position.
III.
The almost complete lack of men in the country, the reduction of the safety provision to a minimum, the replacement of labor by armies of foreigners, the air-raids making the country on actual war territory and resulting in enormous losses in human lives, the isolation of huge areas through the destruction of communication lines, the constantly increasing number of sabotage crimes committed by the Poles, which were encouraged from abroad, made understandable the harsh war legislation and the harsh jurisdiction, resulting of necessity from it, a jurisdiction placing the idea or protection above that of punishment. After all the protection of the very life of millions was at stake. The charge concerning the aggressive war does not consider that the Defendants as well as people in similar positions in other countries were convinced of the just cause of their fatherland.
The idea of genocide, annihilation of alien races, asocial elements and political opponents by means of the cumbersome machine of justice, whose actions took place before the eyes of the public, would have been absurd in view of the entirely different powers of the Government which have now become known, especially in view of the dire lack of manpower throughout the country.
Neither were there any extermination tendencies as far as the applicability of article 51 of the penal code was concerned. In no case was a person punished, when article 51 of paragraph I could be applied. As to the question of the possibility of mitigation of the sentence according to article 51, paragraph II the special court followed the principles developed by legal theory and precedents of the supreme court (Rothaug exhibit 39, 38, and 40.)
Even in trials against political opponents, punishment demanded on the act complying with the constituent elements of a crime and that demanded proof for intention and absence of excuses in such cases, the law was directed against everybody and applied to everyone.
The evaluation of evidence on the basis of the general attitude of the perpetrator towards the state and its goals does not alter the basic fact that legislation and jurisdiction are directed against everybody without discrimination.
It seems to me of grea.t importance to decide whether criminal prosecution means the same as the concept of persecution in the sense of article II, figure 1c) of the Control Council Law No. 10. An example for this is the case of Wiesenberger.
With Rothaug as the presiding judge this man was sentenced to a term in the penitentiary of three years because of an offense against the law against malicious attacks and considering his criminal previous life as a habitual criminal, he was shot by the Gestapo for the same crime. Would the Control Council Law No. 10 place this conviction which was in keeping with the laws on the same level as the illegal shooting?
The jurisdiction attacked here is based on laws which originated at a time when Germany, whose internal conditions were known to the whole world, with its legal structure and its national legislation, was recognized internationally.
The verdict of the IMT sees in the Control Council Law the formulation of existing international law. It is in agreement with this, that as a result of the defeat this recognition is subsequently rescinded by the fact that this legislation and its subsequent jurisdiction are made the basis for charges of criminal offenses of an international nature against people who exactly from the fact that the Reich had been recognized by all the other States could not but assume that its legality was guaranteed?
I now interpolate. One further question. In article VI-c of the Statute pertaining to IMT, the competency of the military courts in connection with crimes against humanity require as a pre-requisite which indicate that these crimes must have been committed against peace (Article 6(a)) or committed against the laws and usage of war Article 6(b) or committed in association with these crimes. Therefore, the conclusion arose from this limitation that the military courts were not appointed just generally for the purpose of examining files of the German State against its own nationals, which is in violation of International Law.
Crimes against humanity must be committed wilfully in awareness of its illegality. There can be no doubt about that. But in the case of no defendant was it asserted, and certainly not proven, that they were aware of the fact that Germany was waging a war of aggression. Consequently, they cannot have committed any crimes against humanity in execution or in connection with aggressive war.
With regard to the alleged commission of crimes against humanity, in the execution of a crime, according to Article 6(b), or in connection with such a crime, the following is to be observed in regard to the judges and the public prosecutors:
Criminal proceedings conducted against a definite person are an individual proceeding without any internal or external association of any proceedings. There can be no doubt that a criminal proceeding against a German national, if Article VI (a) is eliminated, can only then justify the competency of the military courts according to Article VI (c). if these proceedings were carried out in execution of a crime against the rights and usages of war, or carried out in association with such a crime. But this is unthinkable in the case of proceedings against a German national because both usage and law of war protect only the opponent and not the own national. If the individual character in such proceedings then could thereby obtain complete isolation of proceedings against other persons; for example, against foreigners against whom it would be possible to commit crimes according to Article XX VI (b) of the basic law, these facts in addition exclude that crimes against humanity can be committed by criminal proceedings against German nationals in the execution of war crimes against foreigners or in association with such crimes.
"In proceedings against foreigners only Polish cases are of any importance in the case of Rothaug. (Ferber, English transcript page 1739)
a) In all cases, the Poles had put themselves voluntarily at the disposal of the German war potential (Verdict Lopata dated 25 October 1942.
Prosecution Exhibit 186, Dorfmueller, British transcript 3214). (Heinz Hoffmann, Rothaug Exhibit 51) and Rothaug Exhibit 120.
(b) The foundation of their personal and general conditions was a voluntarily concluded labor agreement. Their tie to their place of work was the same as that of the German worker.
(c) Without wanting to undertake the defense of the legislation concerning the Poles, I have tried to show in the Rothaug Exhibit 215, the criminal condition which was to be counteracted by the jurisdiction against the Poles , but in this it has to be considered that this criminality arose after very considerable American forces had taken over the protection of the country.
(d) On top of this, there was the encouraging of the Poles to acts of sabotage by means of the enemy radio and leaflets. The attempt of repulsing the danger by the Germans should not need to be justified. (Ohler, English transcript page 7152, German transcript page 6897); as well as Rothaug exhibit 50).
(e) May history once shed light on these affairs, which are being debated here with juridical limits, for me it has to suffice to prove in what way the problems were being seen at the official places and in which meaning they were presented to the judges. In this respect I would like to counter with all necessary energy the representation, that the judge with respect to the alleged wide range of penalties would have been able to conjure from harsh laws a mild jurisdiction, only because this seems to be more profitable today. (Rothaug exhibit 113-117).
(f) The SD-agent Elkar states, that even without the decree concerning the Poles Rothaug had arrived at the same results. A glance at the index of death sentences of the Special Court Nuernberg (Prosecution exhibit 238) shows the untruthfulness of this statement."
In the Reich, the Poles were distributed at irregular points. In the area of the District Court of Appeals, Nurnberg, there were 10385.
exclusively Poles allocated. The Poles who worked in the country area around Nurnberg and became subject to punishment were proceeded against in Nurnberg. It is important to say here that a Special Court of Nurnberg worked in three shifts, of which two shifts worked in the entire area of the District Court of Appeals.
V.
"The question, whether or not the Special Courts, and the Peoples' Court can be characterized as illicit exceptional courts, is the subject of the combined defense.
The nomination to the Special Court Nurnberg, which was in the hand of the Presiding office of the Court of Appeal, was not being effected according to political joints of view (Rothaug, English transcript page 6789, German transcript page 6561). Neither was it true, that the Special Court Nurnberg was composed of Anti-Fascists, with the exception of Rothaug , as his co-workers seem to have to state to in reviewing the situation with a vision dimmed by their purpose. Rothaug was not even a candidate for the Party when he started on his job. (Denzler, English transcript page 7118/19., German transcript page 6846). (Rothaug exhibit 211.)
Neither had he proved himself in the administration of penal-law in political matters.
Neither did his co-workers have any political significance at the time they were appointed.
VI.
It is decisive in the problem concerning the judge's relation to the law (Jahrreis, English transcript page 4330 ff, German transcript page 4261 ff) that the German judge, in administering the law during all political systems, only had to examine the orderly publication of the law and that he was forbidden to examine; the legality, the necessity, the usefulness, the ethical value and the international acceptability of the laws.
This prohibition was absolute in its nature, that is, the judge was not allowed to express in any point of his decisions, and that is to say not even in the measure of punishment any personally diverging considerations concerning these legislative problems.
Thus the judge and the Public Prosecutor who, in his activity was placed in the same position as the former, were just in those points deprived by the constitution of the right to examine and the power to decide against the laws which are the central points of these proceedings.
On all these points the decision had to be made by the State leadership in sovereign liberty, in the fields of legislation and administration of the law which were its sole domain. Therefore it also had the constitutional and international responsibility for them.
By showing up this constitutional reality, the judge does not want to hide behind his office, but he wants to assert that as concerns all these problems he was not granted any power of decision, but that this was beyond his office and that in this respect be neither perpetrated nor was allowed to perpetrate a human act by acting positively or by neglecting to do so, not even a criminal one.
His activity was confined to recognize and to state the will of the laws. It was a perception, not an intention.
To the problem of the judge's position to the law, his obligation to be loyal to the law, Rothaug exhibit 29.
If by the three judgement of the judge were meant that he was free to apply mildly the harsh law against the will of the law, that is to falsify its will, in opposition to his own conviction of the real will of the law to give leeway to his own diverging will then this opinion is completely right. He could do that, he could alter murder to manslaughter, a bodily injury with consequential death or a homicide through negligence, but he was not allowed to do so because such a proceeding would have defeated the ends of the law which stipulated punishment by penal servitude. With such a clumsy solution one did not get any nearer to the case of the problem. Actually the German legal order does not know of any free opinion of the judge in that sense, that there wore any law of even a, penal law, in which it is said, that that should be law, what the judge, detached from any legally systenatical ties and law obligations took to be law, or that it should be law because the judge wanted it to be so.
In the case of all provisions concerning the range of punishment, first of all the actual wording of the threat of punishment is important If the threat of punishment as for instance in the law for the guarantee of the public peace, read. The punishment will be Death, or penal servitude for life, on 15 years of penal servitude", then that meant that the will of the law was such, that as a general rule the death sentence had to be given.
The especially severe case as it occurs for instance in the decree concerning public enemies, constitutes an aspect of the facts, not a basis for the amount of the punishment to be inflicted (Circular decree of the Reich Ministry of Justice, read in the English transcript page 7332/ 33, German transcript page 7064/65.)
This was a legal problem to be re-examined by the Reich Supreme Court, withdrawn from the jurisdiction of the judges.
In the case of Wendel the appeal concerning irrelevancy was successful as the Special Court under Rothaug had not considered it to be a particularly severe case by reasons which the Reich Supreme Court did not approve of (Prosecution exhibit 245).As the particularly severe case constituted a characteristic aspect of the facts, it was not a case of applying provisions concerning the range of punishment, but it was clearly a case where the law provided the death penalty.
As another decisive factor there is the doctrine of the approtioning of the penalty (Strafzumessungslehre) (Rothaug exhibit 7, Document Book I A, especially English transcript page 62, German transcript page 62.)
According to it, the Court is not formally bound as concerns the measure of the penalty, but actually there exists a legal obligation here too, for the Court is not permitted to reach its decision according to its individual opinion ("according to common sense", according to every day impressions, far less with the assistance of a philosophical or sociological theory), but has to reach it on the basis of positiveactua1 (leading) doctrines concerning crime and punishment and to apply them directly and according to their meaning: It reads as follows:
"The finding of the concrete penalty incurred according to all this stands in inevitable inner relation to the principles as acknowledged by positive law as well as to the individual decisions made according to it. It cannot be taken out of it or be isolated from this firm structure without mis-interpretation.
The doctrine of the apportioning of the penalty, so to speak, is determined by the longitudinal section of the whole of the system of criminal regulations. This inseparable connection especially exists as far as the penal conception of the valid law is concerned. "End of quote. It is further shown that the judge cannot pronounce either art especially mild or an especially harsh penalty because his views on criminal policy differ from the law, and that the judge is not allowed to pursue his own divergent penal policy. In this connection, the position of the attacked legal interest in the scale of values of the national community is especially emphasized as a guide.