In Germany, special courts are courts for special issues. They distinguish themselves from the ordinary jurisdiction , the specialized jurisdiction ( labor , administrative , financial , social jurisdiction ), from stand courts and exceptional courts . Historically, courts established outside of the (originally) legally provided jurisdiction are referred to as special courts. The term special court is particularly well known in connection with the time of National Socialism in Germany.
Germany until 1933
There were special courts in Germany before the Nazis came to power in 1933. With them, the respective state power reacted to unrest by removing whole complexes of criminal offenses from the competence of the ordinary judiciary and assigning them to specially set up judiciary bodies.
In the Kingdom of Prussia , the respective military commander was able to set up special courts based on the State of Siege Act of 1851. In practice, however, this law did not apply until the First World War .
In the Weimar Republic , special courts with different powers and procedural rules were set up several times on the basis of an emergency ordinance issued by the Reich President under Article 48, Paragraph 2 of the WRV , and in 1922 the “State Court for the Protection of the Republic”, which was abolished in 1926. The Bavarian People's Courts , which were established in November 1918 and had passed around 31,000 judgments by their dissolution in May 1924, are a special feature of this period .
Following the emergency decree “Against Political Terror” of August 9, 1932, the Reich government under von Papen ordered the establishment of special courts in certain higher regional and regional court districts. The proceedings were characterized by a massive restriction of the defendant's rights of defense and the exclusion of legal remedies against the decision of the court. In detail:
- An oral hearing on the arrest warrant does not take place (Section 10).
- A decision to initiate proceedings is not issued after the indictment has been received by the special court (Section 13).
- Loading periods are 3 days, can be shortened to 24 hours (§ 13).
- The court may refrain from taking evidence (Section 14).
- The results of interrogations during the main hearing do not have to be recorded (Section 16).
- Only in cases in which the jury would otherwise be competent is a defense necessary and a defense attorney to be appointed ex officio (Section 11).
- There are no legal remedies against the decisions of the jury (§ 17).
With effect from December 21, 1932, these special courts were repealed.
time of the nationalsocialism
Special courts were known above all as part of the Nazi judicial crimes , in which they stood out due to the massive imposition of death sentences or long prison sentences or imprisonment in concentration camps for mostly minor offenses. In the legal sense, they are indistinguishable from the for Wehrmacht again decorated in 1934 by military courts (courts martial) , which also in 1934 set up the People's Court and the for trial of each in the throes of the Third Reich in February 1945. "perpetrator" arranged in specific cases courts-martial , the could only decide on death and (theoretically) on acquittal or referral to a legally provided court. What they all have in common is that they made political judgments.
Number and responsibility
As early as March 21, 1933, a special court was set up for each higher regional court district across the empire, making a total of 26. With the expansion of their substantive jurisdiction, the number of special courts set up also increased. At the end of 1942 there were a total of 74 special courts. The administration of criminal justice was therefore largely in the hands of the special courts endowed with the special powers described; In Hamburg, for example, the special courts dealt with 73% of all criminal proceedings.
The special courts were initially equipped with limited jurisdiction for special criminal offenses that the Nazi rulers had introduced to enforce their rule, namely crimes under the " Reichstag Fire Ordinance " of February 28, 1933 and under the " Deceptive Ordinance " of March 21, 1933. Their jurisdiction has been expanded several times. Since 1938 they have been responsible if the public prosecutor's office was of the opinion that an immediate trial was required with “consideration for [...] the reprehensibility of the act or the public excitement”. In this way, the National Socialist “ healthy public sentiment ” became the benchmark for the administration of justice. For serious political crimes, however, special senates of the higher regional courts or the Reichsgericht and later the People's Court remained responsible.
Special courts are to be seen as part of the unjust National Socialist state . While they can still be counted as part of the normative state in the sense of Ernst Fraenkel's fundamental, already contemporary distinction , it is important for the overall assessment that large parts of the ethnic group did not even have this rudimentary legal protection claim in principle, but from the outset the arbitrariness of the administration - according to Ernst Fraenkel: were delivered to the state of action. This included not only Jews, but also the peoples of the East such as Poles, Russians and others (see for details on protective custody ).
Disenfranchisement of the accused
The procedure before the special courts was based on the maxim of extreme speed. This was served by the abolition of the preliminary investigation introduced in the criminal justice system for reasons of the rule of law and the opening decision and the shortening of the summons to 24 hours. Later the arrested person could even be tried on the spot. The chairman of the court could even issue an arrest warrant for the accused . Later even the possibility of appeal against this decision was abolished. The special court had free discretion whether and what evidence it wanted to raise to prove the allegation. The convict had no right of appeal against the judgment. Only the public prosecutor's office could lodge the so-called nullity complaint, which was almost always to the detriment of the convicted person.
Task and function of the special courts
With these regulations, the National Socialist rulers linked the expectation of a merciless ruling practice. The State Secretary of the Reich Ministry of Justice and later President of the People's Court, Roland Freisler , put this into the following words in 1939:
“They have to be as fast as the armored forces, they are equipped with great fighting power. No special court can say that the legislature did not give it enough fighting power. They must have the same urge and the same ability to seek out, find and locate the enemy, and they must have the same resounding accuracy in hitting and destroying the recognized enemy. "
In September 1939, Reich Justice Minister Franz Gürtner wrote in a memorandum addressed to Adolf Hitler that the special courts were practically equivalent to martial arts. They are just not designated as such.
Tightening of the substantive criminal law and judgment practice
With the expansion of the substantive jurisdiction of the special courts, the National Socialist rulers combined considerable tightening of penalties. The number of crimes that could be punished with the death penalty rose to 46 by 1943/1944. A new central criminal provision was the so-called People's Pest Ordinance .
The enormous tightening of the penalties was not primarily the result of the tightening of substantive law, but the result of the merciless judgment of the courts. A speech by Hitler on April 26, 1942 before the Reichstag caused the case law to be even more harsh. Referring to an alleged misjudgment, Hitler accused the judges of judging in an unnational socialist manner and insisting on well-earned rights instead of accepting privations like other national comrades in the interests of victory. He threatened unpopular judges to personally throw them out of office.
On the night of March 21-22, 1942, Hitler complained to the executive Minister of Justice, Schlegelberger , from the Führer headquarters about the aforementioned “misjudgment” . The then State Secretary Freisler reported to Hitler the following day. Hitler thereupon ordered the abolition of the sentence and the execution of the perpetrator. As early as March 24th, Attorney General Emil Brettle filed an extraordinary objection. In a hastily arranged appointment before a special criminal division of the Reichsgericht , a “Führer's Court” chaired by the President of the Reichsgericht Erwin Bumke , the judgment was corrected on March 31st and the death penalty was imposed instead of 5 years in prison.
On April 13, 1942, the Reichsgericht continued its tightened line. The 3rd Criminal Senate of the Reichsgericht under Bumke's chairmanship changed a judgment of the Bremen Special Court, which had sentenced the person concerned to 5 years in prison and preventive detention for stealing a coat, to a nullity appeal by the Reich Prosecutor. The Senate imposed the death penalty for the theft taking place in the special circumstances of an air raid. The annulment complaint was lodged by the later Federal Prosecutor General Wolfgang Fränkel - at that time seconded to the Reich Prosecutor's Office as a research assistant - and based on the fact that the national community was entitled to protection from a habitual and violent criminal like the accused. That was the first decision of the Reichsgericht, in which it imposed the death penalty itself on the annulment complaint instead of letting it pass judgment, as usual, by referring the matter back to the special court.
Hitler's head-on attack increasingly led the judges to clarify with the public prosecutor's office, the superiors, the ministry and the party offices which verdict was desired before the verdict.
Number of death sentences
The total number of death sentences (special courts, people's court and ordinary courts, excluding military courts ) is around 16,500 according to a well-founded estimate. The special courts alone have probably passed 11,000 death sentences. Reliable information can no longer be given. The increasing tendency, however, is also evident from the figures given by the Reich Ministry of Justice itself: 1941 1292 death sentences, 1942 3660, 1943 5336. It is not entirely clear whether this affects all of the above-mentioned courts together or only the special courts.
For comparison: From 1907 to 1932, including the First World War, 1,547 people were sentenced to death in the German Reich. "Only" 393 of these were executed. In fascist Italy under Mussolini , 156 death sentences were passed, of which 88 were carried out.
- On March 8, 1943, the Essen Special Court sentenced an invalid Lithuanian pensioner to death for stealing three tin bowls worth about 3 RM from a shop that was hit by a bomb. The special court stated that "after a particularly severe enemy attack [...] any appropriation, even of low-value items [...], is particularly dangerous" and must be punished with death in the interests of public safety.
- In 1943, a special court sentenced an 82-year-old for taking a leather horse leash lying around during a bombing raid and turning it into a belt and suspenders.
- On April 23, 1942, the Cologne Special Court 1 sentenced a Pole to eight years in prison for stealing clothing that was recognized as worthless. The sentence was based on the fact that the accused was a member of a people who owed deep debt to the German people.
- On July 3, 1942, the Freiburg Special Court imposed the death penalty on 46-year-old Gustav S. for undermining military strength in accordance with Section 5 of the Special War Criminal Law Ordinance (KSSVO) of August 17, 1938. In a private conversation he had stated that it would be best if nobody donate more, then those in front - meaning the soldiers at the front - would stop and the war would end as quickly as possible.
- On February 23, 1945, the Freiburg Special Court sentenced a 42-year-old Polish slave laborer to death for having taken away trousers and a skirt that were lying in the rubble when he was assigned to clean up after an air raid on Freiburg. The judicial expert consulted had granted the defendant less criminal responsibility. The latter was a very rare event, especially after the beginning of the war. The special court was not impressed by this. The accused was mentally limited insofar as his mental faculties were not developed; but he is not insane .
- On August 11, 1942, the Bayreuth Special Court sentenced a 53-year-old disability pensioner to five years in prison for continuing to listen to enemy radio stations and distribute their messages.
- A 40-year-old single worker had a love affair with a French prisoner of war from summer to December 1941. She was therefore sentenced by the Bayreuth Special Court on July 3, 1942 to a prison term of one year and three months.
- A 17-year-old Polish forced laborer called out to a compatriot in Polish when she saw three wounded German soldiers: "Franz, if you had beaten them to death, they wouldn't have to walk around here either." The Bayreuth Special Court therefore tightened it to four years Conviction camps, so concentration camps . She died on March 29, 1943 in Dachau concentration camp .
- A 65-year-old university professor and party member was sentenced to a year in prison by the Bayreuth Special Court on September 13, 1943 because, when asked about a donation on the street, he refused and said: “Oh what, for our soldiers! And the bigwigs get it ”.
- Pastor Georg Althaus was sentenced to six months in prison by the Braunschweig Special Court for allegedly violating the treachery law because he had prayed for the Jews in confirmation class and forbade the confirmands to give the Hitler salute.
- In 1940 the Königsberg special court sentenced the 70-year-old legal knight of the Order of St. John and landowner to nobleman Laukischken in the Labiau district Ludwig Meyländer gnt. Rogalla von Bieberstein to a prison sentence of several years. After 4 months in Wartenburg prison , he was found hung up one morning. On March 20, 1940, the Königsberger Nachrichten wrote under the bar heading “Reactionary farmer in prison” about his conviction: “He had long been ripe for his anti-state behavior, to be judged by the voice of the people.” He had listened to foreign stations, gave a speech hostile to the state at the Christmas party, gave the Polish prisoners of war ample food, tobacco products, etc., and "on principle never (served) the German greeting, yes he even dared to hoist the flag of the German Reich on the gable of his stable, whereas he used to hoist the flag of the Second Reich on the mast on his castle ”.
- The Königsberg Special Court sentenced the well-known press illustrator Emil Stumpp to one year imprisonment in a session in Memel on January 14, 1941 . He died as a result of the conditions in Stuhm Prison .
- The Nuremberg Special Court sentenced the Jewish businessman Leo Katzenberger to death in a show trial for alleged racial disgrace under the People's Pest Ordinance of 1942.
- On March 2, 1943, the Special Court II at the Berlin Regional Court sentenced a “looter” to death who had taken an abandoned bag after a night of bombing. He was executed twenty-four hours after his crime.
- The Braunschweig Special Court sentenced 19-year-old Erna Wazinski to death as a " pest " for alleged " looting " after the bombing of October 15, 1944 on Braunschweig . The case came before various courts several times after the war, but the verdict of the Nazi judges was not overturned until March 21, 1991 by the Braunschweig Regional Court and Erna Wazinski's innocence was confirmed.
- The 17-year-old Walerjan Wrobel was sentenced to death on July 8, 1941 by the Bremen Special Court for arson.
- Lieutenant General Rudolf Huebner was appointed commander of the special flying court west on March 10, 1945. This was founded after the Ludendorff Bridge in Remagen had been conquered by American troops undamaged. His assessors were Lieutenant Colonel Anton Ehrnsperger and Lieutenant Colonel of the Reserve Paul Penth . On March 11, 1945, they arrived at the headquarters of Army Group B in Rimbach near Oberirsen in the Westerwald . There, after the negotiations, Huebner sentenced the majors Hans Scheller, August Kraft and Herbert Strobel, Captain Bratge and First Lieutenant Peters to death by shooting by March 14, 1945. The two captains Bratge and Friesenhahn were tried in absentia. They were already a prisoner of war in America. Captain Friesenhahn was acquitted. The judgments were carried out immediately after the announcement. On April 28, 1945, Huebner was appointed commandant of Munich. In the last days of the war, numerous supporters of the Bavarian Freedom Campaign were executed under his command .
- In the spring of 1944, the Vienna Special Court sentenced the two Czech agricultural laborers Rudolf Schalplachta and Johann Schalplachta, with the participation of the public prosecutor Friedrich Nowakowski , a prominent Austrian criminal law professor at the University of Innsbruck after 1945 , to death for radio offenses, and the sentences were carried out.
Federal Republic of Germany
Federal special courts are courts that can be set up as special courts for specific issues. According to Basic Law (GG), a law is necessary for this. This is an immediate reaction to the experiences under National Socialism. Their establishment is at the discretion of the federal legislature. The courts according to Para. 1, 2, 4 GG are special courts. These are the possible military criminal courts , the existing Federal Patent Court and the former Federal Disciplinary Court . Special courts are usually characterized by special procedural rules. Special courts appointed to decide individual cases in this sense fulfill the characteristic of the " exceptional court " i. S. d. Paragraph 1, Sentence 1 of the Basic Law and are unconstitutional in the Federal Republic.Paragraph 2 of the
- Repeal of Nazi injustice judgments (to evaluate the special courts in post-war justice )
- Unpunished Nazi justice (to come to terms with Nazi judicial crimes)
- Protective custody
- Jehovah's Witnesses under National Socialism
- Central Court of the Army
- Roses for the public prosecutor , film processing of a fictional case.
- Michael Klein: Vera and the brown lucky man. How the Nazi state executed a murderer of Jews; A true story , Neuer Europa Verlag Leipzig 2006, ISBN 3-86695-480-8 .
- Can Bozyakali: The special court at the Hanseatic Higher Regional Court. Publisher Peter Lang: Hamburg 2005.
- Herbert Schmidt : The misery of the Düsseldorf Jews. Chronology of Terror 1933–1945. Droste-Verlag 2005.
- Herbert Schmidt: “Rassenschande” before the Düsseldorf courts 1935–1945. A documentation. Klartext-Verlag 2003.
- Hans-Ulrich Ludewig, Dietrich Kuessner : “So everyone should be warned.” Braunschweig Special Court 1930–1945. Self-published by the Braunschweig History Association in 2000.
- Helmut Paulus: The Bayreuth Special Court 1942–1945 - A dark chapter in Bayreuth's judicial history (= Archive for the History of Upper Franconia, Volume 77), Bayreuth District Court 1997.
- Gerd Weckbecker: The jurisdiction of the National Socialist special courts Frankfurt / Main and Bromberg. Nomos, Baden-Baden 1995, ISBN 3-7890-5145-4
- Michael Hensle: The death sentences of the Freiburg Special Court 1940–1945. 1995, ISBN 3-923646-16-X (Belleville Verlag 1996, ISBN 978-3-923646-16-6 )
- Harald Mager: Traders as defendants before the Mannheim Special Court. in: Regional elites between dictatorship and democracy: Baden and Württemberg 1930–1952, Oldenbourg Verlag, ed .: Cornelia Rauh-Kühne, Michael Ruck , Munich 1993, pp. 263–282.
- Ralph Angermund: German judges 1919-1945. 1990, ISBN 3-596-10238-3
- Bernd Schimmler: Law without justice. On the activity of the Berlin special courts under National Socialism. WAV Verlag Berlin 1984, ISBN 3-88840-222-0 .
- Dieter Kolbe: President of the Reich Court of Justice Dr. Erwin Bumke . 1975, ISBN 3-8114-0026-6
- Walter Wagner: The People's Court in the National Socialist State. 1974, ISBN 3-486-54491-8
- RGBl. I 1932, 403; Digitized on ALEX
- RGBl. I 1932, 404
- Ewald Löwe, Peter Rieß (ed.): The Code of Criminal Procedure and the Courts Constitution Act . tape 1 . Walter de Gruyter, Berlin 1999, ISBN 978-3-11-016446-6 , p. 61 .
- Helmut Kramer: Judge in front of the court. The legal processing of the special jurisdiction. In: National Socialist Special Courts (= Legal Contemporary History North Rhine-Westphalia, Volume 15) 2007.
- Ordinance of the Reich government on the formation of special courts of March 21, 1933 ( Reichsgesetzbl. I, p. 136ff.) Digitized on ALEX
- Ordinance of the Reich government on the jurisdiction of the special courts of December 20, 1934. (Reichsgesetzbl. I, p. 4) Digitized on ALEX
- Ordinance on the jurisdiction of criminal courts, special courts and other procedural regulations of February 21, 1940; Reichsgesetzblatt I p. 405ff. Digitized on ALEX
- Angermund, p. 213
- Angermund, p. 245, footnote 112
- Angermund, p. 217
- Hensle, p. 71
- Hensle, p. 133
- Paulus, Bayreuth Special Court
- Ludewig, Kuessner
- Klein, p. 177
- Wolfgang Gückelhorn: The miracle of Remagen , ISBN 978-3-938208-65-6
- Klaus-Dietmar Henke: The American Occupation of Germany , page 856 ( online in the Google book search)
- Claudia Kuretsidis-Haider: The Engerau case and the post-war jurisdiction. Reflections on the significance of the Engerau trials in Austrian post-war justice history . In: Documentation archive of Austrian resistance (ed.): Yearbook 2001 . Vienna 2001, p. 79 , footnote 44 ( doew.at [PDF]).
- Karen Birgit Spring: Do we need military jurisdiction in Germany? Nomos, Baden-Baden 2008, ISBN 978-3-8329-3594-8 , p. 94 .
- Windthorst: Study Commentary GG . Ed .: Gröpl, Windthorst, von Coelln. 2nd Edition. CH Beck, Nördlingen, Art. 101, p. 752 (Art 101, para. 4) .
- BVerfGE 3, 213 (223)
- Armored Troop of Justice (The Braunschweig Special Court 1930–1945)
- Andreas Heusler, Exploitation and Discipline. On the role of the Munich Special Court and the Munich Stapoleitstelle in the context of the National Socialist foreign worker policy
- Klaus-Detlev Godau-Schüttke, Everyday Justice in the “Third Reich” - Two judgments of the special court in Kiel from the years 1943 and 1944