Hans-Joachim Rehse

Death sentence of Roland Freisler , Hans-Joachim Rehse , Arthur Heß , Gerthold Hell , Heinrich Reinecke , Karl Bruchhaus from September 8, 1943 against Alois Geiger for decomposing military strength and favoring the enemy

Hans-Joachim Rehse (born September 27, 1902 in Prenden , Niederbarnim district ; † September 5, 1969 in Schleswig ) was a judge at the People's Court in Berlin during the Nazi era . His career demonstrates the failure of the German judiciary in the post-war period to deal with the Nazi injustice committed.

To person

Rehse, son of a pastor, passed the two state law exams in 1927 and 1930 with excellent grades. In a steep career he served his way up from court assessor in 1931 to chamber judge in 1942. From the spring of 1934 to the end of 1937 he was - then so-called - assistant to the investigating judge at the People's Court , from 1939 to November 1941 an investigating judge and from November 10, 1941 an assistant judge at the People's Court.

From 1919 to 1921 Rehse was a member of the "German Bismarck Federation", which was later renamed Bismarckjugend , a youth organization that was close to the DNVP . Eventually he became a member of the DNVP from 1925 to 1929 . On May 1, 1933 , he joined the NSDAP ( membership no. 2.768.045).

In the post-war period, Rehse was a judge in Schleswig-Holstein from 1956. In 1969 he died of a heart attack .

Participation in death sentences

Rehse acted as an associate judge alongside the presiding judges Otto Georg Thierack and later Roland Freisler in the 1st Senate of the People's Court in at least 231 death sentences.

The Max Josef Metzger case

The Catholic priest Max Josef Metzger had sent a manifesto from Berlin to the Swedish archbishop in Uppsala in which he had camouflaged a democratic state order for Germany after the war. The manifesto was not intended for the public and fell into the hands of the Gestapo through a breach of trust .

In the death sentence of October 14, 1943, it can be read, among other things, that this was a matter of favoring the enemy or of high treason : “Every national comrade knows that such a departure of a single German from our front line is an outrageous act ... a betrayal in the direction of defeatism ... a betrayal that our healthy public opinion considers worthy of death. "

To this end, in a criminal case against Dagmar Imgart , the priest's informer , the Federal Court of Justice established in 1956 that his conviction and the execution of the sentence - that was the death penalty - had been "an intentional unlawful homicide under the guise of criminal justice". It was about the exploitation of judicial forms for unlawful homicide. Such an application of the law only serves to destroy the political opponent and violates the inviolable core legal area. In this way, such “jurisdiction” reveals its true nature as an instrument of terrorism .

The Walther Arndt case

On July 23, 1943, the Berlin zoologist Walther Arndt told a colleague on a joint journey that the Third Reich was now coming to an end and that it could only be a matter of punishing the guilty; He had known since the Reichstag fire fraud that it would come this way.

The death sentence of May 11, 1944 reads: “No, the People's Court had to deal with A. as it did with other defeatists (§ 5 KSSVO ), who stab our struggling people in the back with their discouraging dissecting speeches and who thereby forever have made dishonorable. He had to be sentenced to death so that the certainty of victory and thus the fighting strength of our homeland remain untouched. "

The case of Pastor Müller from Groß Düngen near Hildesheim

Another death sentence concerned the Catholic pastor Joseph Müller . In August 1943 he told a craftsman that the situation was serious and that the war could easily be lost. A short time later Müller told the craftsman the following joke: A wounded man had asked as he was dying to see again those for whom he had to die; Hitler's picture had been placed on the right and Goring's on his left; and then he said: "Now I am dying like Christ."

The death sentence of July 28, 1944 reads: “If after all Müller his joke ... Such behavior is betrayal of the people, the Führer and the Reich. Such betrayal is forever dishonorable. Such an attack on our moral strength can - so that similar treasoners are deterred - no other than be punished with death. "

Criminal penalties

As early as 1957, the public prosecutor's office in Flensburg started an investigation against Rehse and the proceedings were discontinued because it could not be proven that Rehse had voted in favor of the accused's death.

As late as 1963, the Munich Higher Regional Court refused to prosecute Rehse for a death sentence in a comparable case. In accordance with the case law of the BGH, it stated that it could not be proven that the accused had violated the law with certain intent and that he had committed a crime against life. Rehse was stuck with the legal thinking at the time. In view of the submission to the laws of the time, which he regarded as binding law and which he believed to be correct as a result of the delusion, a certain intent could not be proven.

The act of perversion of the law

The Higher Regional Court referred to a fundamental decision of the Federal Court of Justice of December 7, 1956, according to which the “certain” intent of the lawyer must also refer to the incorrect application of the law. In this respect he deviated from an earlier decision. Another senate had made it sufficient that the perpetrator had at least expected it, i.e. considered it possible that the death sentence had been objectively unlawful, and nevertheless voted for this punishment (so-called "conditional intent", the lower requirements to the inner factual side). In addition, it was enough for the Federal Court of Justice in that decision that it was obvious to any impartial judge that the desertion of the soldiers did not deserve the maximum penalty, namely the death penalty.

As a result, the Federal Court of Justice showed astonishing leniency towards Nazi lawyers by accusing them of their - alleged - legal delusion. Other perpetrators, such as informers, could not always count on such leniency.

The Frankfurt General Prosecutor Fritz Bauer remarked on such argumentation patterns: No one can become wise today from the divided consciousness of lawyers. The denazification files said that everyone was totally against it. If, however, judges and public prosecutors are to be called to justification for excessive death sentences, they assert that at the time they persecuted and judged in perfect agreement with their conscience, which, according to prevailing legal law, eliminates perversion of justice and manslaughter.

In contrast, in the case of a judge in what was then known as the Soviet Zone (“ SBZ ”), who had sentenced Jehovah's Witnesses to very high prison terms, the Federal Court of Justice stated: “The defendant is a fully qualified lawyer who can be expected to have a feeling for it whether a punishment is intolerably disproportionate to the gravity of the offense and the guilt of the offender ”.

The judgments in the Rehse case

First judgment LG Berlin

Rehse then had to go to court for some acts, including a. because of the case of Pastor Müller described above. The jury chamber of the Berlin Regional Court rebelled against the then valid treatment of Nazi perpetrators in robes and sentenced Rehse on July 3, 1967 for aiding and abetting murder in three cases and aiding and abetting attempted murder in four cases to five years in prison , taking into account the dated Pretrial detention ordered February 9, 1967 .

Judgment of the BGH

In contrast, the competent 5th criminal senate of the BGH , chaired by Werner Sarstedt , overturned the judgment of the regional court in the appeal proceedings initiated by the public prosecutor's office and the defendant, since an associate judge of the People's Court, due to his equal voting rights in the judgment, even under the chairmanship of Freisler, did not merely consider Helper, but participated as a perpetrator. However, in order Rehse could be convicted of murder (because of the statute of limitations came manslaughter out of the question), must also be present at his base motives. However, the regional court had not made sufficient findings. The criminal senate also pointed out that the regional court judgment also contained ambiguities and contradictions in the statements on the subjective facts of perversion of the law, “u. a. Incidentally, also in connection with the expressions 'legal blindness' and 'delusion', which, understood in the usual sense, do not appear to be compatible with the intent to pervert the law. ”The BGH overturned the jury's judgment for a new hearing before the Berlin Regional Court.

Second judgment LG Berlin

Rehse was acquitted in the second round .

Serious procedural violations were not found. The defendants at the time were not hindered in their defense. Even from the brief consultations carried out without a formal vote (to reach a judgment), Rehse's behavior cannot be inferred. The criminal provisions applied to those sentenced to death - Section 91b of the Criminal Code and Section 5 of the Special War Criminal Law Ordinance - were legally valid.

In the case of Metzger, the offense of favoring the enemy was fulfilled - which the People's Court had not found but left open (cf. the presentation of the reasons for the judgment in the article on Max Josef Metzger ).

The evidence of the People's Court “kept within the scope of factual considerations”.

Rehse could not be proven that he deliberately applied the criminal provisions incorrectly.

The imposition of the death penalty was objectively unlawful, but it complied with the strong fight against the degradation of military strength by the People's Court, which generally regarded such cases as worthy of death.

The jury said whether the convicts could invoke a right to resist the injustice regime can no longer be clarified today.

The public prosecutor's office requested an appeal against the judgment. Before the BGH could speak again on this matter, the defendant died of heart failure in Schleswig.

Result

Although the criminal justice process of Nazi injustice had started in the 1960s, the case law in its own field refused to come to terms with the past. The Rehse ruling marked the end of the criminal prosecution of all Nazi judicial lawyers.

The judiciary did not make use of the approaches present in the judgment of the BGH in the case of the priest Max Josef Metzger, namely not to recognize the People's Court as a court and thus to judge the acts of the “judges” without the judge's privilege of narrowly interpreting the perturbation of justice. Indications from the Federal Public Prosecutor Max Güde from 1960 that the People's Court had been a political instrument from the outset were also ignored. According to Güde, basically only lawyers devoted to the regime sat in it, along with high functionaries from the party , SA and SS ; an authoritative official of the People's Court - an attorney for the Reichsgericht - once told him that it was not the task of the People's Court to pronounce justice, but to destroy the opponents of National Socialism .

See also

• Hans von Dohnanyi

literature

• Günther Gribbohm: National Socialism and Criminal Law Practice - An attempt to take stock. In: Neue Juristische Wochenschrift 1988, pp. 2842 ff.
• Matthias Meusch: From dictatorship to democracy. Fritz Bauer and the processing of Nazi crimes in Hesse (1956–1968). Political and Parliamentary History of the State of Hesse, Vol. 26, Wiesbaden 2001, ISBN 3-930221-10-1 .
• Justice and National Socialism , catalog for the exhibition of the Federal Minister of Justice 1989, pp. 404–405, 423, 425–426, 440–449.
• The quotations from the judgments can be found in Walter Wagner, The People's Court in the National Socialist State , 1974 pp. 358, 402, 406; see. also p. 855. ISBN 3-486-54491-8 and at
• Ingo Müller: Terrible lawyers. The unresolved past of our judiciary. Kindler, Munich 1987, ISBN 3-463-40038-3 , pp. 283-284
• Friedrich Christian Delius : My year as a murderer . Novel. ISBN 3-87134-458-3 , Rowohlt Berlin Verlag
• Arnim Ramm: July 20 before the People's Court , Wissenschaftlicher Verlag, Berlin 2007, ISBN 978-3-86573-264-4 .
• Jörg Friedrich : The Cold Amnesty. Nazi perpetrators in the Federal Republic. List, Berlin 2007, ISBN 978-3-548-60748-1 , pp. 390 ff.
• Robert Pausch: Freisler's right hand. In: Die Zeit No. 26 of June 22, 2017, p. 23.

Web links

• Robert Pausch: Nazi era: Freisler's right hand. In: Zeit Online . June 21, 2017, accessed September 5, 2019 . 
• Arnd Koch, Margaretha Bauer: Rehse, Hans Joachim. In: Lexicon of Political Criminal Trials . Edited by Kurt Groenewold , Alexander Ignor and Arnd Koch, August 2013 . 

Individual evidence

1. ^ ^{A b} Arnd Koch, Margaretha Bauer: Rehse, Hans Joachim. In: Lexicon of Political Criminal Trials . August 2013, accessed September 5, 2019 . 
2. ↑ Robert Pausch: Nazi era: Freisler's right hand. In: The time . June 21, 2017, accessed September 5, 2019 . 
3. ↑ BGH NJW 1956, 1485, 1486
4. ↑ Hans-Heinrich Jeschek, Wolfgang Ruß, Günther Willms: §§ 303 to 358. Walter de Gruyter, 2015, p. 68 [1]
5. ^ Andreas Eichmüller: No general amnesty: The prosecution of Nazi crimes in the early Federal Republic. Walter de Gruyter, 2012, p. 279 [2]
6. ↑ 1 StR 56/56 - BGHSt 10, 294, 300
7. ↑ Judgment of May 27, 1952 - 2 StR 45/50. In: MDR 1952, 693
8. ↑ Judgment of February 16, 1960 - 5 StR 473/59. In: NJW 1960, 974
9. ^ Federal Court of Justice ruling v. April 30, 1968, ref .: 5 StR 670/67. In: Jurion.de. Archived from the original on September 24, 2016 ; accessed on September 5, 2019 .