Otto Thorbeck

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Otto Thor Beck (* 26. August 1912 in Brieg , Silesia ; † 10. October 1976 in stone at Nuremberg ) was a German jurist and SS - Richter .

CV until 1945

Thorbeck came from an officer family together with four other siblings. His father - originally a battalion commander in Brieg (Silesia) - was immediately transferred to the War Ministry in Berlin . After attending the 3-class pre-school, Thorbeck entered the Kant-Gymnasium in Berlin, which he graduated in 1932.

Thorbeck intended to take up the officer career; However, since he was already suffering from considerable myopia at that time, this was not possible for him. He therefore decided to turn to the study of law . He was responsible for this study at the universities in Berlin and Göttingen ; in June 1936 he passed the trainee examination at the Higher Regional Court in Celle . At the beginning of November 1939 Thorbeck passed the Grand State Examination.

Thorbeck was transferred to the SA in 1933 as a member of the Jungstahlhelm , but was soon transferred to the SS. On May 1, 1937 Thorbeck joined the NSDAP .

At the beginning of the war Thorbeck, who had not served until then, volunteered and was drafted into an SS infantry regiment before Christmas 1939 due to his membership in the SS. Since Thorbeck was only partially fit, he was first referred to a medical battalion; however, he managed to report to the command office of the Waffen SS in Munich , where he worked as a disciplinary officer.

On July 1, 1940 Thorbeck was then appointed as assistant judge to the " Hauptamt SS -gericht ", the central administrative office of the SS judiciary, where he was employed in various departments and finally transferred to the SS and Police Court in Vienna in the same capacity .

In the following period its use changed frequently; he worked several times again in the main office of the SS court in Munich, in particular in the department for legal opinions. From July 1942 it was planned to be used in a court of the "Higher SS and Police Leader Caucasus". After this department had been closed and another representative activity, Thorbeck was sent to Norway to produce his dissertation on peasant law .

Until January 1945 Thorbeck was in Northern Russia with the VI. SS Army Corps active as a corps judge; then he returned from Kurland to the main SS court office, which had meanwhile been moved to Prien am Chiemsee . He was now appointed chief judge at the SS and Police Court in Munich; At the same time, as "Inspection Judge South", he supervised the SS and police courts in Nuremberg , Munich, Salzburg and Laibach .

Thorbeck had been appointed court assessor in April 1940 and taken over into the judicial service; In 1941 he was appointed to the district court advisor at the district court of Zempelburg , but without ever having served in the judiciary. With effect from March 1, 1944, Thorbeck was transferred from reserve to active SS service; here he was promoted to SS-Sturmbannführer . He left the Reich Justice Service at the end of 1944.

Thorbeck married in autumn 1939; the marriage resulted in four children.

Appointed to stand trial

Treasonous documents

On September 21, 1944 filed a driver that he previously secret files of the defense to the camp of the bunker Zeppelin in Zossen - Wünsdorf had driven. On September 22nd, the Gestapo found the secret archive of the coup attempts from 1938–1940 and also some carbon copies of Admiral Canaris ' diary. Contrary to his orders, Hans von Dohnanyi did not destroy this archive.

A number of the conspirators incriminated in the files had since died or fallen, some were already in custody because they had been arrested in the vicinity of the attack on July 20 , the other suspects were arrested in the following weeks. After the discovery of the files, Hans Oster revealed everything about his overturning plans to the Gestapo. Canaris, on the other hand, played down the process as if he had only formally participated in conspiracies . He had a plausible explanation ready for every accusation and every suspicion.

The (first) files found in Zossen were important insofar as the material found revealed the Nazi leadership's plans to overthrow the regime opponents in 1938 and 1939 . Hitler ordered that this material should on no account be handed over to the People's Court and that it be subject to the highest secrecy . In the tense military situation on the fronts and the assassination attempt on Hitler, the population should not be further unsettled by the announcement of conspiracy plans from the time before the war.

At the beginning of April 1945 Walter Buhle , General of the Infantry, or one of his officers discovered Canaris' diary in a safe in Zossen, which the Gestapo had long sought. The National Socialist Buhle had this handed over to the Gestapo immediately. On April 5, it was presented to Hitler personally by Ernst Kaltenbrunner , Chief of the Security Police and the SD . Hitler ordered the "immediate annihilation of the conspirators" Hans von Dohnanyi, Dietrich Bonhoeffer , Wilhelm Canaris, Ludwig Gehre , Hans Oster and Karl Sack . Kaltenbrunner then ordered SS court proceedings and commissioned the department head in the Reich Security Main Office, Walter Huppenkothen .

Proceedings in Sachsenhausen and Flossenbürg

Huppenkothen first traveled to the Sachsenhausen concentration camp and acted there as the prosecutor of a special court convened for April 6, 1945, presided over by an SS judge “named Hoffmann o. Ä.” And to which other SS people belonged - including the commandant of the concentration camp. There was no clerk or defense attorney for Dohnanyi. In the express trial, Dohnanyi, lying sick on a stretcher, was sentenced to death ; on April 9th ​​he was hanged .

On April 7, Huppenkothen traveled to the Flossenbürg concentration camp , where he also represented the prosecution a day later. Admiral Canaris apparently had his nose broken there during the “court martial” session. Here, too, the death sentences applied for by Huppenkothen were pronounced against all the defendants by the "SS stand trial" chaired by Otto Thorbeck and carried out on April 9, 1945. The convicts were humiliated: They had to undress and were “hanged” by “the murderers” in a “repulsive scene”.

Unlike Thorbeck, who left prematurely, the "prosecutor" Huppenkothen was present at the hanging. He had failed to obtain the compulsory confirmation of the death sentences by the judge before the execution. Then Huppenkothen reported the execution to SS-Gruppenführer Müller in Berlin on April 9, 1945 and expected further instructions to the Regensburg police station. The dead were burned in the crematorium and their ashes scattered.

The death sentences in Flossenbürg

Memorial stone at the place of execution in the Flossenbürg concentration camp for the five people sentenced to death by Otto Thorbeck on April 8, 1945, as well as two other resistance fighters

Thorbeck was a member of the NSDAP (membership number 4,358,937) and has been an SS-Sturmbannführer in active SS service since March 1, 1944. Since February 1945 he has held the post of chief judge at the SS and Police Court in Munich . As an SS judge, he led several proceedings in which SS Standartenführer Walter Huppenkothen acted as prosecutor. Both were for it later due to violation of the law brought to justice.

In the SS trials jointly carried out by Huppenkothen and Thorbeck in Flossenbürg, five well-known resistance fighters were charged with high treason and treason or war treason (Section 57 of the Military Criminal Code - MStGB) and sentenced to death:

The SS court martial was actually not responsible for the convicted because the accused were not members of the SS. According to the then applicable War Criminal Procedure Code (KStVO), a court martial would have been responsible.

According to today's assessment, the proceedings were purely sham processes in which the result - a guilty verdict - was already certain.

In terms of procedural law, they were also illegal under the laws of the Nazi state . A court martial was out of the question because the offenses against which the defendants were accused had been committed a long time ago and they did not pose an acute threat. Nor were defense counsel appointed and confirmation of the death sentences from the judge was not awaited.

All in all, the hastily carried out proceedings were only concerned with disguising political murders as apparently legal.

After the end of National Socialism

Thorbeck, who had submitted to an SS troop when the American troops marched into Munich, was a prisoner of war from the end of the war until the end of 1946 , then in detention until mid-April 1948. Since 1950 Thorbeck was admitted to the bar in Stein near Nuremberg.

Early repeal of the Thorbeck judgments

By law No. 21 for the reparation of National Socialist injustices in criminal justice enacted in Bavaria of May 28, 1946, promulgated in No. 11 of the Bavarian Law and Ordinance Gazette of July 4, 1946, page 180 ff., The Flossenbürg Thorbeck's death sentences passed and declared null and void. This historically significant process, which belongs to the general context of the repeal of Nazi injustice judgments after the Second World War, initially went unnoticed in its effects on the sought - after Bonhoeffer rehabilitation, both publicly and within the church, and aroused great astonishment fifty years later (see 6.4 ) and amazement.

Acquitted in Munich

In the first trial against Walter Huppenkothen, which ended with the acquittal of the Munich I jury on February 16, 1951, Thorbeck only testified as a witness.

In its appeal decision of February 12, 1952, the Federal Court of Justice (BGH) rejected the view of the Munich court that the stand court had preserved the "judicial face". This view is legally erroneous and completely misunderstands the essence of a judgment. Participation in a court martial does not mean a criminal act per se, but this does not apply if the court only exists in appearance. A sham court would exist if all the legal provisions of the time were formally complied with, but this was only done with the aim of concealing the actual intention. With clear echoes of the “ Radbruch formula ”, the BGH pointed out that legal provisions are also wrong when the value and dignity of the human personality are grossly disregarded. The acquittals with regard to the court courts should therefore be set aside and negotiated again.

Thereupon Thorbeck was taken into custody on October 8, 1952 by the Munich I jury court and brought to court together with Walter Huppenkothen. This trial resulted in an acquittal, and Thorbeck was released on November 5, 1952.

This Munich judgment was also revised in a BGH decision. However, the BGH missed the clear, unmistakable tone of the first judgment in its new judgment of November 30, 1954. From the point of view of the BGH, the appeal was justified because the jury had not examined in sufficient detail whether the defendants were aware that the death sentence had been carried out without confirmation from the court lord.

Sentenced in Augsburg

The joint proceedings against Huppenkothen and Thorbeck were referred to the Augsburg Regional Court . The subject of the proceedings was the “participation in court-martial death sentences against the Reich judge Hans von Dohnanyi in the Sachsenhausen concentration camp and against General Oster, Admiral Canaris, General Staff Judge Sack, Captain Gehre and Pastor Bonhoeffer in the Flossenbürg concentration camp by the head of the counter-espionage department of the Stapo Office in the Reich Main Security Office as prosecutor Procedure and by a judge of the main office of the SS court as chairman of the Flossenbürg case ”.

In 1955, Thorbeck was sentenced to four years in prison by a jury court in Augsburg for aiding and abetting murder . In the grounds of the verdict, the court stated, among other things: “The leading men of the National Socialist regime, Hitler , Himmler , Kaltenbrunner ..., regardless of who ordered the court trial against the six people killed, ordered the men to be executed low motive. … They had sunk in their behavior to the deepest level of irresponsible human behavior. ... The main perpetrator was therefore guilty of a crime of murder under Section 211 of the Criminal Code in each of the six cases. To this end, the defendant Huppenkothen, in six cases, the defendant Dr. Aid provided in five cases. " Conclusion :

“Unlike the Munich colleagues, the Augsburg Regional Court, after the second referral back, saw it as proven that the defendants Huppenkothen and Thorbeck, who had again been remanded in custody, had participated in a sham trial in Flossenbürg, and made direct reference to the decision of the BGH in February 1952. The court left the question of the formal legality of the SS stand trial largely open. It could be left open whether Hitler was allowed to order such a court martial. Stand courts are necessary to ensure the general security and order of the troops. However, the prisoners had not been a threat for a long time. This court martial was not set up to uphold law and justice, but served the sole purpose of eliminating uncomfortable prisoners under the guise of judicial proceedings. The clear aim of the sham proceedings was to drag the resistance fighters into the abyss in the agony of the ' Third Reich '. Since the defendants believed the judgments to be correct, they could not plead an imperative to order. The Augsburg court sentenced Huppenkothen in six cases and Thorbeck in five cases to seven and four years' imprisonment, respectively, for aiding and abetting murder, but remained in the lower range of possible sentences. "

- Hubert Seliger

Acquitted in Karlsruhe

On June 19, 1956, the Federal Court of Justice acquitted Thorbeck of the charge of complicity in murder in an appeal judgment. Excerpt from the grounds for the acquittal:

For the question of whether Dr. Partly through his participation as chairman in the court martial in Flossenbürg of complicity in murder - or other criminal acts - it is not decisive how the events of April 1945 are based on current knowledge. Such a retrospective assessment would not do the accused justice. When assessing the complainant's criminal guilt - the judge only has to decide on this - one should rather consider how his task was presented according to the legal situation and the other circumstances at the time of the offense, with the inexorability of the laws applicable at the time to which he was charged was subject and against which the resistance fighters in Flossenbürg had revolted before the court martial.

The starting point is the state's right to assert itself . In a struggle to be or not to be, as the discerning Senate had already pointed out in its first judgment of February 12, 1952, strict laws for the protection of the state have always been passed among all peoples. Even the National Socialist state cannot simply be denied the right to have passed such laws. However, they served not only to protect the German people and the German homeland, but increasingly at the same time to maintain the tyranny of the National Socialist rulers.

The serious conflict of conscience in which the resistance fighters were entangled has its roots in this fateful entanglement. They were faced with the choice between their duty of obedience and being subject to the strict laws in force at the time, on the one hand, and, on the other hand, endeavors that arose from noble sentiments and served higher goals and required the courage to self-sacrifice to end Hitler's tyranny. If the resistance fighter was faced with the most difficult moral decision even in such a conflict, the judge, who today has to judge the extent to which the resistance efforts and actions were justified in terms of criminal law - from the point of view of supra-legal emergency - is faced with a A task set that touches the limit of what can be decided by the means of earthly justice.

It is characteristic that the pronouncements on the right of resistance , insofar as they come from circles to be taken seriously and accordingly deserve attention, at least diverge on the question of whether the resistance fighters are to be granted the right to sacrifice the lives of innocent people for the sake of the abolition of tyranny , e.g. B. by notifying the enemy of imminent military operations. But this much can be said:

"A judge who at that time had to try a resistance fighter because of his activity in the resistance movement and who judged him to have been convicted in an impeccable process can today not be charged with criminal law if, in view of his submission to the laws of the time, he did not investigate the question, whether the resistance fighter was supported by the justification of the supra-legal state of emergency from the point of view of a higher right of resistance, which precedes the penalties of the state law, but believed that he was guilty of high treason and treason or war treason (§ 57 MStGB) and therefore to death to have to condemn. "

Conclusion:

“With the revision of the defense, the proceedings came before the BGH for the third time. On June 19, 1956, the BGH waived a renewed referral and passed the final judgment in the Huppenkothen / Thorbeck proceedings. For the question of whether Thorbeck was guilty, the decisive factor is not how the events of April 1945 were based on current knowledge, but how his task was presented according to the legal situation and other circumstances at the time of the offense. The starting point is the state's right to assert itself. In a struggle for to be or not to be, strict laws for the protection of the state have always been passed among all peoples. Even the National Socialist state cannot simply be denied the right to enact such laws. A judge who at that time had to try a resistance fighter for his activity in the resistance movement and who judged him to have been convicted in an impeccable process, cannot be charged with criminal law today. If Thorbeck was not clear about the confirmation of the judgments by the judge for lack of conviction, he would not act with intent, but only negligence, but this would be statute-barred. "

- Hubert Seliger

Assessment of the BGH judgment of June 19, 1956

“Eleven years after the end of the war, the BGH turned what was known about the Nazi era upside down. He fostered the view, which is still represented mainly in right-wing circles, that the women and men of the German resistance were traitors and were therefore rightly executed. ...

The judgment marked a turning point in the prosecution of judicial injustices. Almost six months later, on December 7, 1956, the 1st Criminal Senate confirmed the acquittal of two chairmen in court proceedings. In the reasons he explicitly refers to his judgment of June 19, 1956. On April 30, 1968, Rehse , assessor at the People's Court , was acquitted. The public prosecutor's office in Berlin subsequently closed preliminary proceedings against former judges and public prosecutors at the People's Court. The considerations made by the 1st Criminal Senate in its judgments of February 12, 1952 and November 30, 1954, no longer played a role from 1956 onwards. ...

The President of the BGH Dr. In a ceremony on the occasion of the 100th birthday of Hans von Dohnanyi on March 10, 2002, Hirsch declared to the members of the Dohnanyi, Bonhoeffer, Goerdeler families and the other victims of the judicial murders left unpunished by the BGH that one should be ashamed of this judgment. Shame can have several causes. In the present case, it is based on the knowledge that this judgment did not meet the basic requirements for a constitutional judgment. According to Art. 92 GG, the judiciary is entrusted to the judges. This means that the Basic Law expects a court to conduct its office impartially, legally and conscientiously. Based on these principles, the judgment is a shame, especially when you consider it against the background of the judgments of the 1st Criminal Senate of February 12, 1952 and November 30, 1954 and the judgment of the Augsburg Regional Court of October 15, 1955. Because the judgment of June 19, 1956 does not correspond to what must be expected of a court, neither with regard to the examination of the evaluation of evidence nor with regard to the line of thought nor in its linguistic diction. The judges of the 1st Criminal Senate abused the trust placed in them on June 19, 1956 to remove their responsibility from judges who murdered under the guise of law as the Nazis' henchmen. In this respect, there is indeed reason to be ashamed. "

- Heinz Ponnath : The legitimation of the murder of Pastor Dietrich Bonhoeffer

Heinz Ponnath, the retired judge at the Bayreuth Regional Court , never tires of pointing out this dark chapter of German judicial history, most recently in March 2019 in his Bayreuth lecture: Why the murderer of Bonhoeffer was acquitted in 1956 .

“The Bremen legal historian Christoph Schminck-Gustavus , who documented these judgments long forgotten among Germany's lawyers in 1995, comes to the conclusion that their reasoning reads 'like a renewed conviction of the conspirators'. He also does not fail to point out that one of the federal judges responsible for the revision judgment, Ernst Mantel , was an assessor at the Special Court in Munich during the Nazi period and, as a chief judge in the Army High Command, the notorious secret ' Commissar Order ' (inconspicuous liquidation of captured political commissioners of the Red Army) signed. A second federal judge involved in the revision judgment, Ludwig Martin , was an attorney for the Reich before 1945 - which did not damage his later rise to the position of Federal Attorney General . "

- Christian Feldmann : acquittal for the blood judge

The burden of an unresolved past

Affidavit from the wife

Thorbeck had to undergo the Allied denazification process while he was a prisoner of war . His wife issued an affidavit for him on September 30, 1946 , in which she described how she met him in 1930 and married in 1939.

Her husband had nothing to do with National Socialism until 1933 and also refused to join the party at that time. He first got into the Jungstahlhelm through his student corporation, so as not to have to join the SA or SS. When the Jungstahlhelm was transferred to the SA in October 1933, her husband joined the SS out of dislike for them in order not to endanger his professional career by standing aside. At the time, they would both have seen the SS as the more moderate formation that paid particular attention to discipline and the impeccable lifestyle of its members. Her husband only joined the party a year after his legal traineeship on May 1, 1937.

When the war broke out in 1939, her husband reported to the Wehrmacht , but was drafted into an infantry regiment of the Waffen SS. In 1940 he was transferred to the main SS court office in Munich. Due to his specialist knowledge, her husband was very quickly promoted to Sturmbannführer (January 1943) in the SS jurisdiction. Her husband was mostly occupied with legal history work and was still doing his doctorate in July 1944 in Göttingen with a thesis on Norwegian peasantry. In other works he especially campaigned for the full independence of the judiciary and true justice in state life.

As a family, she would not have had any advantages from her husband's membership in the SS, on the contrary. Separations caused by the war, evacuations, loss of housing and property had been a heavy burden on her: "For our good faith, we should have been punished hard enough for our good faith to do our duty." She asked not to send her husband to a labor camp, but to him To give an opportunity to prove oneself.

She is "firmly convinced that he will fit in with the rebuilding without reservation and will always endeavor to make himself useful through voluntary physical work ... Since no special accusations can be made against her husband other than belonging to the SS, we hope, soon to be able to start a new life together on the most humble basis. "

Reactions from relatives

The eldest son did not conceal from his future wife that Dietrich Bonhoeffer was sentenced to death by his father. His wife came from a pastor's family and of course she had heard of Bonhoeffer. Her uncle, Karl Steinbauer , was a pastor of the Confessing Church himself and a committed resistance fighter. Hanna Thorbeck remembered that Bonhoeffer pleaded in his “Accountability Report” to believe that good can still thrive on the soil of evil. Because God is not an impersonal fate that cannot be influenced, but someone with whom one can talk and whose answer can be expected.

Hanna Thorbeck, who dealt with her problematic family history all her life, dedicated an obituary to her father-in-law in 1993 in which she applied the famous New Year's Eve poem of his victim Bonhoeffer to him “daringly, but with radically Christian reasons”. Through death and the grace hoped for by the “highest authority”, all judgments had become null and void, she mused, the files of judge Thorbeck and those of the defendant Thorbeck. “ Wonderfully safe from good powers … I know his life. They are the same arms into which the judge and those he condemned fell. I trust that. ”As expected, the obituary - published seventeen years after Thorbeck's death - caused outrage. In a radio broadcast, again twelve years later, in 2005, Hanna Thorbeck tried to clarify her train of thought: “Both got caught up in the web of National Socialism , Otto Thorbeck through his bondage, Dietrich Bonhoeffer through his resistance. [...] But even today I still believe that it is really the same hands that both fell into. ”Dietrich Bonhoeffer, the resistance fighter with a big heart, might even have agreed.

Elke Endrass reports in her book that Otto Thorbeck's daughter was incomprehensible, that her father had adapted to the regime over the years and that he did not want to stand by his mistakes after the war. There was no confrontation with his past: "His form of coping was to cling convulsively to fascism even after the war so that he did not have to admit that he had been a player in a major injustice regime."

The second oldest son first learned in confirmation class what role his father had played in National Socialism. Thorbeck avoided his son's uncomfortable questions. He denied that systematic extermination operations had taken place in the concentration camps . The son refused to attend the radical right-wing youth camps that the father had chosen for him. He tried not only politically to take a different path than his father, he also wanted to be different from him in character. The worst thing for him was that his father didn't regret anything, but continued to be a "Nazi" who voted for the NPD until his death .

Thorbeck's wife only found out about the impending trial against her husband on the radio in 1952 and couldn't believe that her husband hadn't told her about the whole story. Still, she stuck to him. That was typical: “The wives of the perpetrators took over the ideology of the men without being asked and mostly clung to it even after the man had long since died. Ursula Thorbeck didn't have much time for doubts or feelings of guilt, because she had to look after the family all by herself when her husband was away. She never took part in political discussions, not even when the children went in opposition to her husband. Otto Thorbeck was able to assert himself well in the small town - despite some hostility that did not fail to materialize after the lengthy process. He gained a reputation as a respected and popular lawyer. This was not least due to the fact that he helped everyone who came to him, even if they could not pay anything or not much. "

The youngest son was only 16 years old when Thorbeck died in 1976. For him, the straggler, the confrontation with his father's National Socialist past was no longer as important as it was for his siblings. "I would have preferred it if my father had been on the side of the resistance fighters and not on the side of the perpetrators," he once said, adding: "My father was not a typical Nazi perpetrator."

Sickness and death

Thorbeck suffered from Parkinson's for many years . However, the illness was not the immediate cause of his death. “He just didn't want to anymore,” said his daughter. Because he regarded the life of a seriously ill person as rather worthless and as an unreasonable burden for others.

In the last years of his life he sought contact with the church and with a pastor he knew . One of the sons: “At that time I asked my brothers whether our father might have regretted some things. We thought: What do you do after a life like this in which you have loaded so much guilt on yourself? ”This question remained unanswered. “Nobody knows exactly what actually went on in Otto Thorbeck in the end” - including his family.

Belated coming to terms with the Nazi injustice

Nine violations

After six judgments in almost seven years, the Huppenkothen / Thorbeck trial in 1956 came to an inglorious end for German jurisprudence. It was not until the mid-1980s that the final BGH judgment was critically scrutinized due to a generation change within the judiciary. The Würzburg criminal law teacher Günter Spendel was able to prove in his dispute with these judgments that there were actually nine (!) Most serious legal violations that would have resulted in a different result. In detail, he found the following legal violations:

  1. the inadmissible formation of the "Standgericht" months after the clarification of the facts, which does not become lawful even by Hitler's order, because "the question of the legal basis of a procedure becomes ... pointless if one assumes that it is bound to every legal one Regulation is omitted ";
  2. the lack of jurisdiction of an SS court martial, because at least the imprisoned officers were subject to military or martial law;
  3. the occupation of the stand court with the concentration camp commanders, d. H. with “executioners” of the regime;
  4. the arbitrary failure to appoint a defense attorney;
  5. the unfounded failure to consult a secretary;
  6. the ill-treatment of the Defendant Canaris, as evidenced by credible testimony;
  7. the short duration of the proceedings as evidence of the lack of effort to reach a fair judgment;
  8. failure to obtain the “confirmation of judgment”;
  9. the inhumane and disgusting way of "executing a sentence".

It is more than regrettable that such misjudgments could occur in the post-war period in view of these serious violations of the law, which not only “should immediately jump into the eyes of every lawyer” , it is shameful. Even if the nine legal violations did not each require criminal liability for perversion of the law and aiding and abetting murder, at least cumulatively the unambiguity of the infraction of the law in the SS “stand trial” was almost obvious.

New principles of the BGH

On 16 November 1995, the Supreme Court revised a landmark decision to prosecute lawyers in the GDR its previous case law and criticized by reference to work of the Würzburg Criminal teacher Günter Spendel the rulings against members of the Nazi justice. So it says in the judgment:

“A particularly critical review of death sentences is necessary against the background of the experience of the Nazi dictatorship. The inhuman National Socialist regime was supported by compliant judges and public prosecutors who perverted the law. The cruelty that shaped the image of the judiciary during the Nazi era culminated in an unprecedented abuse of the death penalty. (...) The Senate does not fail to recognize that standards such as those used in the Federal Republic of Germany when assessing Nazi lawyers were far less strict. The realization that a death penalty can only be regarded as not curative if it was intended to punish the most serious injustices should have led to the conviction of judges and prosecutors of the Nazi regime in a large number of cases. Despite the thousands of abuses of the death penalty, particularly in the years 1939–1945, there are only very few such convictions. Overall, the Senate tends to the finding that the failure of the persecution of Nazi judges was primarily due to too extensive a restriction in the interpretation of the subjective prerequisites of the fraudulent law. "

- Federal Court of Justice : judgment of the BGH for perversion of justice by a judge from the GDR by participating in death sentences from November 16, 1995.

Struggle for the rehabilitation of Bonhoeffer

Parallel to this change in the highest court rulings, the end of the East-West conflict also promoted the social debate with the Huppenkothen / Thorbeck case. For many civil rights activists in the GDR, Dietrich Bonhoeffer was an important figure to identify with, who after the fall of the Wall and the peaceful revolution in the GDR were shaken by the fact that the death sentence against Bonhoeffer was still considered lawful in the Federal Republic (Bavarian Law No. 21 on the reparation of National Socialist injustices in the criminal justice system of May 28, 1946, only a few were known at that time). The former GDR civil rights activist Bärbel Bohley with her initiative Gerechtigkeit für Dietrich Bonhoeffer and various lawyers successfully fought for a rehabilitation of Bonhoeffer.

Klaus von Dohnanyi , son of the murdered Hans von Dohnanyi, put forward the not-to-be-dismissed thesis in 1996 in a radio broadcast on Deutschlandfunk (DLF) that this rehabilitation was an “absurd goal” because the murdered did not need any rehabilitation more, the story had long since rehabilitated Bonhoeffer, Dohnanyi and the other comrades-in-arms. If, on the other hand, the initiative had wanted to take action against the judgments discussed above in the trials against the murderers of the six resistance fighters, this is understandable, but then this should have been carried out under this "title". In addition, Klaus von Dohnanyi rightly pointed out that the BGH in the Huppenkothen / Thorbeck case did not have to deal with the victims, but with the perpetrators of the Nazi jurisdiction. The BGH was not concerned with the honesty of the motives of the victims (= the resistance fighters), which it actually never questioned, but with the guilt and criminality of the perpetrators, which it judged incorrectly.

Annulment decision of the Berlin Regional Court

With the decision of the Berlin Regional Court on August 1, 1996, the court ruling against Bonhoeffer was officially overturned. This annulment was done with the remark: “A decision on the matter itself is, however, denied to the Chamber. The death sentences passed by the SS court martial in Flossenbürg against Bonhoeffer and the resistance fighters executed with him on April 9, 1945 are already due to the Bavarian Law No. 21 on the reparation of National Socialist injustice in the field of criminal law of May 28, 1946 (Bavarian Law - and Ordinance Gazette 1946 p. 21) repealed. The regulations contained therein are taken over as occupation law on the basis of Art. 1 Sentences 2 and 3 of the transition agreement of May 26, 1952 (Federal Law Gazette II p. 405) law of the Federal Republic of Germany and thus still in force. "

On the grounds for annulment, it was stated, among other things: “The purpose of the court martial was therefore not to research the truth and to allow law and justice to prevail. Rather, the purpose of the proceedings was solely to be able to remove the prisoners, who had become uncomfortable due to their resistance activities, under the appearance of a judicial process that had de facto taken place in disregard of all principles of a constitutional process. This is all the more true as at the time of the execution the Allies' suppression of the National Socialist regime was imminent. Nevertheless, knowing this fact, Hitler endeavored right up to the end to get rid of politically dissenters. Thus, only the retention of power and the revenge of the leading National Socialists because of the events on July 20, 1944 determined the passing of the death sentences against those affected. "

The reference to the fifty-year-old Bavarian law caused a political skirmish in 1996: Federal Minister of Justice Edzard Schmidt-Jortzig reproached the Bavarian state government for not referring to this law no. 21 early enough ; this could have saved a lot of discussions. The Munich Ministry of Justice countered that the “Watsch'n from Bonn” was unjustified, the Bavarian legal gazettes were certainly also available in the Federal Ministry of Justice .

The Bavarian Evangelical Church, on the other hand, was surprised that the state government did not use the commemoration celebrations for Bonhoeffer's 50th anniversary of his death in Flossenbürg in 1995 to clarify the legal situation in public. Quotation from the statement of the church leadership: "One wonders how it can happen that something that is supposedly known for a long time is not known by anyone."

Decision of the German Bundestag

On May 28, 1998, the German Bundestag passed the second and third reading of the law to repeal wrongful National Socialist judgments in the criminal justice system (NS-AufhG) . It was announced on August 25, 1998.

Final chord

In 2002, the then President of the BGH, Günter Hirsch , on the occasion of the 100th birthday of the former judge at the Reichsgericht, Hans von Dohnanyi, distanced himself from the judgment of the BGH from 1956, a judgment for which one ought to be ashamed and that had devastating consequences for the prosecution of Nazi lawyers:

“One must be ashamed of this ruling by the Federal Court of Justice, in which a judge also participated, who was an assessor in a special court in the Third Reich and later a senior war judge. I am expressly addressing this to you, the members of the von Dohnanyi, Bonhoeffer, Goerdeler families and the other victims of the judicial murders that were left unpunished by the Federal Court of Justice.

The consequences of this judgment were devastating. Not a single judge, not a public prosecutor was convicted in the Federal Republic of thousands of judicial crimes in the Third Reich. After the conviction of Judge Rehse, who together with Roland Freisler had worked on dozens of death sentences against resistance fighters in the People's Court, was finally overturned in 1968 , the public prosecutor's offices closed all investigations against former judges.

This failure of post-war justice is and will remain a dark chapter in German judicial history. "

- Günter Hirsch : Address at the ceremony on the occasion of Hans von Dohnanyi's 100th birthday

swell

  • Bavarian Advisory State Committee: Law No. 21 on the reparation of National Socialist injustices in criminal justice of May 28, 1946, promulgated in No. 11 of the Bavarian Law and Ordinance Gazette of July 4, 1946, page 180 ff. ( Online ).
  • Judgment of the Federal Court of Justice for aiding and abetting murder in court martial proceedings : Federal Court of Justice, February 12, 1952 - 1 StR 658/51 in: OpinioIuris (Thorbeck as witness).
  • Judgment of the BGH on appeal : BGH, November 30, 1954 - 1 StR 350/53 in: Wolters Kluwer Germany (Thorbeck and Huppenkothen as defendant).
  • Judgment of the LG Augsburg from October 15, 1955, 1 Ks 21/50. In: Justice and Nazi crimes . Collection of German criminal judgments for Nazi homicidal crimes 1945–1966 , Vol. XIII, edited by Irene Sagel-Grande, HH Fuchs, CF Rüter . Amsterdam: University Press, 1975, No. 420, pp. 283-358 ( online version ).
  • Hermann Weinkauff : Legal opinion on the military right of resistance (1956) , in: July 20, 1944. A drama of conscience and history. Documents and reports , Freiburg: Herder 1961, pp. 204–221.
  • Judgment of the BGH for aiding and abetting murder in the SS special jurisdiction : BGH, June 19, 1956 - 1 StR 50/56 in: OpinioIuris .
  • Judgment of the BGH because of GDR perversion of the law : BGH, 15.09.1995 - 5 StR 713/94 in: OpinioIuris .
  • Federal Supreme Court: judgment of the BGH for perversion of justice by a judge from the GDR by participating in death sentences . BGH, judgment of November 16, 1995 - 5 StR 747/94; LG Berlin ( online at lexetius.com/1995,464 ).
  • Berlin Regional Court: Decision to overturn the death sentence against Dietrich Bonhoeffer from August 1, 1996, LG Berlin, August 1, 1996 - 517 AR 4/96 (2 P Aufh. 1/96) .
  • German Bundestag: Second and third deliberations of the ... Act on the Repeal of National Socialist Injustice Judgments in the Administration of Criminal Justice (NS-AufhG) , in: Stenographic report, 238th session , Bonn, Thursday, May 28, 1998 ( online version ), Pp. 128-143.
  • Law on the Repeal of National Socialist Judgments in Criminal Justice of August 25, 1998 ( online ).

literature

  • Gustav Radbruch : Statutory injustice and supra-statutory law , in: Süddeutsche Juristenteitung 1946, pp. 105-108 (excerpt) (PDF; 50 kB).
  • Günter Spendel : Perversion of the law through jurisprudence. Six criminal law studies , Berlin: de Gruyter 1984, ISBN 3-11-009940-3 ; therein: 6. Justice and Nazi crimes: The “stand trial proceedings” against Admiral Canaris and others in the post-war jurisprudence, pp. 89–115.
  • Ingo Müller : Terrible lawyers . Kindler-Verlag, Munich 1987, ISBN 3-463-40038-3 ; New edition Edition Tiamat , Berlin 2014, ISBN 978-3-89320-179-2 ; on Thorbeck: esp.p. 316 f.
  • Christoph Schminck-Gustavus : The "trial" against Dietrich Bonhoeffer and the release of his murderer , Bonn: JHW Dietz Nachsteiger 1995 ( description online ).
  • Philipp Mohr: The lifting of the death sentences against Dietrich Bonhoeffer and his colleagues and the post-war case law , in: Neue Juristische Wochenschrift (NJW) 1997, pp. 914–918.
  • Christian Feldmann : Dietrich Bonhoeffer - “We should have screamed”. One life. A certificate , Freiburg: Herder 1998; Cross 6th, revised and expanded edition 2015; therein: acquittal for the blood judge , p. 177 ff. ( excerpt online ).
  • Johann Claussen : Light that sticks in the eyes , in: Deutsches Allgemeine Sonntagsblatt No. 2, January 8, 1999, p. 24 ( online at geschichte-bk-sh.de ).
  • Günter Müller: Dietrich Bonhoeffer and his judges , in: Encounter & Conversation. Ecumenical Contributions to Education No. 129, July 2001 ( online ).
  • Günter Hirsch : Address by the President of the Federal Court of Justice at the ceremony on the occasion of Hans von Dohnanyi's 100th birthday on March 8, 2002 in Karlsruhe ( online at bundesgerichtshof.de ).
  • Rolf Bossi : demigods in black. Germany's justice in the pillory , Frankfurt am Main: Eichborn 2005, therein p. 245 ff: Perversion of the law, conditional and unconditional ( excerpts online ).
  • Elke Endraß: Bonhoeffer and his judges. A trial and its aftermath , Stuttgart: Kreuz 2006.
  • Hanna Thorbeck: No reconciliation without memory , in: WeiterGehen 2007. Texts for reflection , Lahr: Kaufmann Verlag 2006, 4. – 10. February ( online at geschichte-bk-sh.de ).
  • Stephan Alexander Glienke: The dagger under the judge's robe. The processing of the Nazi justice in society, science and jurisprudence in the Federal Republic , in: Zeitgeschichte-online , December 2012.
  • Heinz Ponnath: The legitimation of the murder of Pastor Dietrich Bonhoeffer , in: Deutsche Richterzeitung 93 (2014) 414-419.
  • Hubert Seliger: The trial against Walther Huppenkothen and Otto Thorbeck 1949–1956 , in: Lexicon of Political Criminal Trials , June 2016 ( online ). In the download version , the title is: The trials against Walther Huppenkothen and Otto Thorbeck 1950–1956 .
  • Alexander Hoeppel: Nazi justice and perversion of the law. The criminal prosecution of German judicial crimes after 1945 , Tübingen: Mohr Siebeck 2019.
  • Martin Rath: Nazi Justice: It was not the only evil , in: Legal Tribune Online from September 1, 2019 ( online ).

Web links

media

Individual evidence

  1. ^ The following curriculum vitae comes from the judgment of the LG Augsburg from October 15, 1955 ( online version ).
  2. ↑ Cf. on the whole: The files of the conspiracy , in: Christoph U. Schminck-Gustavus: The "Trial" against Dietrich Bonhoeffer ... , 1995, pp. 51-62.
  3. ↑ The “Zossen file find” also contained a kind of “Nazi scandal chronicle”, which Bonhoeffer's brother-in-law Hans von Dohnanyi had meticulously compiled. From murders and attempted murders in the concentration camps to the usual foreign currency shoving by the Gauleiter and the unpleasant filthy mess within the Hitler Youth and the SA leadership , there was hardly a crime that was not recorded in this chronicle. According to Dohnanyi, these documents had to suffice "to open their eyes to Hitler and his regime to anyone who is willing to see" (quoted by Günter Müller: Dietrich Bonhoeffer and his judges ... , 2001, p. 3). For the further content of the Zossen files, see the compilation in the judgment of the LG Augsburg from October 15, 1955 ( online ).
  4. ↑ In the Reichstag resolution of April 26, 1942 , Hitler's authority and domestic political power were strengthened by a far-reaching extension of his authority to issue orders with the argument that he wanted to enable him to proceed flexibly: “In the struggle of the German people to be and not to be [...] must the leader [...] - without being bound by existing laws - in his capacity as leader of the nation, as supreme commander of the armed forces , as head of government and chief holder of executive power, as the supreme court, Mr and as leader of the party to be able at any time , if necessary, to prove to every German [...] in the event of a breach of duty after a conscientious examination regardless of so-called well-earned rights with the atonement due to him and in particular to remove him from his office, from his rank and position without initiating prescribed procedures. "( RGBl. 1942 I p. 247; quoted in Düring / Rudolf, Texts on German Verfa ssungsgeschichte , Verlag CH Beck, Munich 1979.)
  5. ↑ The court martial against v. Dohnanyi , in: Justice and Nazi Crimes ... , 1975 ( online version ).
  6. ↑ See Thorbeck's report on the event, namely his admission as a defendant in the Augsburg trial in 1955 ( online version ).
  7. ↑ Günter Spendel: Rechtsbeugung durch Jurisdiction ... , 1984, p. 93.
  8. ↑ Dietrich Bonhoeffer had been asked for his work in the Foreign Defense Office uk : “On behalf of the resistance group in the Foreign Defense Office, Bonhoeffer tried leading figures of the Anglican Church , in particular Bishop Bell-Chichester , to broker an armistice between the Western Allies and the proposed new German government. For this purpose, Bonhoeffer made use of the Ecumenical Movement , an association of Protestant churches; the connection was established through the church circles in Sweden. The failure of the assassination attempt and the coup d'état of July 20, 1944 finally led to the complete smashing of the resistance movement . ”(Factual presentation in the judgment of the LG Augsburg of October 15, 1955 ).
  9. ↑ The Berlin district court for almost twenty years ruled on 1 August 1996, after Thor Beck's death: "It is true that the scope of Law No. 21 so far limited to Bavaria, as it only applies a system of judgments given in Bayern court judgments.. However, the effect of a declaration of impunity ordered in one country is not limited to the binding of the courts and law enforcement authorities in one's own country. Rather, the principle prevails here that, for the exercise of criminal jurisdiction, the Federal Republic of Germany and its Länder must apply as a unified whole and all courts, public prosecutors and police authorities operating in the federal territory are to this extent to be regarded as organs of one and the same criminal authority. The measures taken by a country in this sense are therefore binding for all courts, and thus across national borders. ”The admissibility of the application by the Berlin public prosecutor's office for the repeal of the Nazi injustice judgments was based on the Berlin law for the reparation of National Socialist injustice in the area of ​​the Criminal Law of January 5, 1951 ( Ordinance Gazette for Berlin , 1951, Vol. I, No. 2, p. 31; first published in: Responsibility 19/1996, pp. 467–478).
  10. ↑ Hubert Seliger: The trials against ... , 2016, PDF version, p. 13.
  11. ↑ Hubert Seliger: The trials against ... , 2016, PDF version, p. 13.
  12. ↑ Online at expostfacto.nl
  13. ↑ Extract from: Legal appreciation of the main offense , in: Justiz und NS-Verbrechen ... , 1975 ( online version ).
  14. ^ The trials against ... , 2016, PDF version, p. 13 f.
  15. ↑ Here the BGH puts forward an argument that comes from the Reichstag resolution of April 26, 1942 to expand Hitler's powers: “In the struggle of the German people to be and not to be ...” (RGBl. 1942 I p. 247; quoted in Düring / Rudolf, texts on German constitutional history , Verlag CH Beck, Munich 1979.)
  16. ↑ In the judgment of the BGH of February 12, 1952 it says: “The relationship of the individual to the people and the state cannot be determined unchanged for all times and conditions. State interference in the freedom and life of the individual can and must under certain circumstances be judged differently, depending on whether the community enjoys an unchallenged, secure existence or whether it is in a life-and-death struggle. It corresponds to the historical tradition and common practice of all civilized peoples that a state in times of greatest warlike and political danger allows courts to prevail which have to work objectively with the greatest severity and which enjoy extensive formal freedoms. The accused cannot be criminally accused if nothing else is certain than that he participated in a court martial in which, according to the legal situation at the time, only a few mandatory procedural rules had to be observed and the rights of the accused therefore only to a much lesser extent were secured than is generally customary in peaceful sites. ”Excerpt from: Judgment of the BGH of February 12, 1952 ( online version ).
  17. ↑ Cf. on this: Hermann Weinkauff: Legal opinion on the military right of resistance ... , 1956, pp. 204–221.
  18. ↑ Excerpt from: Complaint of the defendant Dr. T. , in: judgment of the BGH of June 19, 1956 ( online version ).
  19. ^ The trials against ... , 2016, PDF version, p. 14.
  20. ↑ Hermann Weinkauff , the first President of the BGH, had presented the state of opinion on this legal issue in a legal opinion on the military right of resistance in 1956. According to this, there was a dispute among lawyers as to whether the acts of the German resistance actually constituted state treason or high treason. According to Weinkauff, the acts of resistance were justified in any case, since the resistance fighters had acted in an emergency beyond the law. ( July 20, 1944. A drama of conscience and history. Documents and reports , Freiburg: Herder 1961, pp. 204–221.)
  21. ↑ Deutsche Richterzeitung 12/2014, p. 418 f.
  22. ↑ News from March 2, 2019 ( online at reporter-24.com )
  23. ↑ Christian Feldmann: Dietrich Bonhoeffer - "We should have screamed". One life. A certificate , Freiburg: Herder 1998; Cross 6th, revised and expanded edition 2015, pp. 177–185, here p. 181.
  24. ↑ Elke Endraß: Bonhoeffer und seine Richter… , 2006, p. 81 ff.
  25. ^ Dietrich Bonhoeffer: Accountability at the turn of the year 1943: After ten years , in: ders .: Resistance and surrender. Letters and notes from detention , Gütersloher Verlagshaus 2011, p. 17 ff. ( Online version ).
  26. ↑ Elke Endraß: Bonhoeffer and his judges ... , 2006, p. 90 ff.
  27. ↑ See: Johann Claussen: Light that pierces the eyes ... , 1999, p. 24.
  28. ↑ Christian Feldmann: Dietrich Bonhoeffer… , 2015, p. 181 f.
  29. ↑ Elke Endraß: Bonhoeffer und seine Richter ... , 2006, p. 93.
  30. ↑ Elke Endraß: Bonhoeffer and his judges ... , 2006, p. 93 ff.
  31. ↑ Elke Endraß: Bonhoeffer and his judges ... , 2006, p. 96.
  32. ↑ Elke Endraß: Bonhoeffer and his judges ... , 2006, p. 99.
  33. ↑ Elke Endraß: Bonhoeffer and his judges ... , 2006, p. 99.
  34. ↑ See: Günter Spendel: Legal inflection through jurisprudence. Six criminal law studies , Berlin: de Gruyter 1984; Ingo Müller: Terrible lawyers . Kindler-Verlag, Munich 1987.
  35. ↑ Compilation and quotations from Philipp Mohr: Die Aufstieg ... , 1997, p. 917.
  36. ↑ BGH: judgment of November 16, 1995 - 5 StR 747/94; LG Berlin ( online at lexetius.com/1995,464 ).
  37. ^ DLF of July 28, 1996.
  38. ↑ Philipp Mohr: The lifting ... , 1997, p. 918.
  39. ^ First published in: Responsibility 19/1996, pp. 467–478
  40. ^ Christian Feldmann: Dietrich Bonhoeffer ... , 2015, p. 184.
  41. ↑ Online at bundesgerichtshof.de
personal data
SURNAME Thorbeck, Otto
BRIEF DESCRIPTION German SS judge
DATE OF BIRTH August 26, 1912
PLACE OF BIRTH Brieg , Silesia
DATE OF DEATH October 10, 1976
Place of death Stein near Nuremberg