The Sondergerichte – Special Political Courts

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The fundamental principle of criminal justice system in Western democracies is: “it is far better to let ten guilty individuals to walk free than to convict one innocent”. The fundamental principle of Soviet criminal “justice” system under Stalin was exactly the opposite: “it is far better to convict ten innocent individuals than to let one guilty person walk free”.

For Adolf Hitler and the Nazi neither principle was acceptable. They were already facing almost impossible odds in their Quantensprung project so they could not afford any opposition at all. And thus simply could not allow “ten guilty to walk free”.

On the other hand, they needed to radically increase (more than double) the support of the German population for their ideology, their policies, their Party, their State and their projects – from just under 44% that they received in March 1933 national elections to over 90%. Hence they could not “convict ten innocent individuals” either.

Prevention of the resistance activities was largely taken care of by the Reichstag Fire Decree. It was implemented in practice with Schutzhaft (“protective detention” order) used by Gestapo to detain indefinitely without trials individuals deemed to present a political security theat.

And with Vorbeugungshaft (“preventative detention order”) used by Kripo to prevent regular crimes by detaining indefinitely and without court order habitual and professional criminals, gang members and members of organized crime.

Great care has been taken by both Gestapo and Kripo to make sure that only genuine political opponents of the regime and genuine criminals were sent to concentration camp (i.e. that no innocent person ended up behind the barbed wire).

Hence all denunciations (80% of Gestapo investigations started with one) were thoroughly investigated and German citizens were strongly discouraged by the political police from making false denunciations.

However, there was still a very important question – what to do with political criminals (i.e. resistance activists) after the fact. In other words, after the crime has been committed.

Proving their guilt beyond the reasonable doubt (another fundamental principle of Western – and Weimar – criminal justice system) was not acceptable as it would have inevitably allowed way too many political criminals to walk free while one such case for the Nazis was one too many.

Hence that latter (predictably) set up special purpose political courts (Sondergerichte) that operated under a fundamentally different principle (“more likely than not”) thus severely limiting the rights of defendants – and the chances of a guilty one to walk free. By the end of 1933, there were 26 such courts; by the end of 1942 its number almost tripled to 74.

Both branches of Nazi criminal justice – the one that dealt with regular crime and the one that dealt with political one – had a very different objective from both Western and the Stalinist system.

The former was designed to protect the rights of the accused to the maximum extent possible and to avoid conviction the innocent (not to make sure that “the justice was done” as is commonly and erroneously believed).

The latter had a much more direct and primitive objective – to scare the Soviet citizen into a total submission to the Soviet State and personally to the “Red Emperor” Joseph Stalin.

It other words, to transform them (through fear instilled in their hearts, minds and souls by the Soviet repressive system) into obedient slaves. Which led to a very unexpected result for the Soviet leader and his Bolshevist state – the catastrophic defeat of his invasion army in the summer and fall of 1941 (the most spectacular military disaster in human history).

The objective of the Nazi system was to eliminate all crime – both regular and political. The Western system could not do it as the requirement to prove guilt beyond the reasonable doubt makes it completely impossible to eradicate both the organized crime and political extremism and violence (i.e. terrorism).

The Stalinist system could not do it either as it was designed for arbitrary mass terror, not for careful targeting the criminals and criminal organizations to be eliminated.

Consequently, if the Western nations ever decide to eliminate organized criminal activities such as racketeering, money laundering, human trafficking, illegal drug production and distribution as well as political extremism, violence and terrorism (from Islamic to white supremacist), it will have no other choice but to adopt the system of Nazi special purpose courts (and possibly even preventive custody). Adapting them, obviously, to the realities of the modern world.

The legal basis for the Sondergerichte (Adolf Hitler personally insisted that all anti-resistance activities must be legal) was created by the Reichstag Fire Decree and expanded by the three laws passed specifically for the purpose:

  • Decree to Protect the Government of the National Socialist Revolution from Treacherous Attacks (enacted on March 21st, 1933),
  • Law for the Guarantee of Peace Based on Law (October 13th, 1933)
  • Law against insidious Attacks upon the State and Party and for the Protection of the Party Uniform (December 20th, 1934)

After the beginning of the World War II the rights of the Sondergerichte were predictably expanded.

A special court had three judges, and the defense counsel was appointed by the court. Cases were prepared in exactly the same way as in the “normal” Western system of criminal justice. The whole process is very realistically depicted in the movie that I already mentioned – “The Last Days of Sophie Scholl”.

Gestapo investigated political crimes and if the investigating officer decided there was enough evidence for a conviction (it was not always so – hence lots of cases were dropped), referred the case to a prosecutor.

Who reviewed the case and if he agreed with the Gestapo (which happened usually but not always) sent it (and the defendant) to the Sondergerichte. And this is when the procedure became fundamentally different from both the Western and the Stalinist system.

In the latter both the prosecutor and the criminal court (or what passed for the latter in the Soviet Union) were essentially rubber stamps for the decision made by the officer of the political police (Cheka/GPU/NKVD/MGB/KGB).

No one cared about the truth (and thus about justice) – not the political police, not the prosecution, not the judges, not even the defense council. Contrary to a very popular misconception, neither does anyone in the Western criminal justice system (which often has nothing to do with justice).

Prosecution wants to convict the defendant no matter what as losing cases is bad for prosecutor’s career. Defense wants to make the defendant go free – even when the defense lawyer knows perfectly well that the client is guilty of a horrific murder (i.e. of a rape and murder of a child).

And the judge cares only about “following the law”. Law not justice (it is not always the same thing). Hence, child rapists, horrible murderers, mafia bosses and even serial killers get acquitted “on a technicality” much more often than is commonly believed. And continue committing horrible crimes.

Nazi Sondergerichte were designed (at least in theory) to fix these obvious deficiencies of the Western criminal justice system. In the special court system prosecutor, defense council and judge were supposed to work together to find the truth.

Thus eliminating the fundamental adversarial principle of the Western system and making sure that all three parties involved worked not for or against the defendant (or for the law for that matter).

But for the society that is not interested in the “letter of the law” or even the rights of the defendant. It is interested only in justice being served. In sending the guilty to jail, concentration camp or (in the most severe cases) to the guillotine or the hangman’s noose and in setting the innocent one free.

Unlike the Amtsgerichte (“regular courts”), the Sondergerichte operated according to the “more likely than not” principle. While in cases involving individuals this principle is highly questionable (to put in mildly), in cases involving organized crime activities (street gangs, mafia, etc.) and political crimes (extremism, violence, terrorism, etc.) it is far more efficient in getting the justice served than “proof beyond the reasonable doubt”.

Still, the idea of the judge, prosecution and defense working together (rather against each other) to establish the truth and make sure that the justice is done (instead of the letter of law being followed) is something that the modern society (IMHO) should investigate carefully.

Once the truth (or what passed for the latter in a specific case) was established, the justice was swift. There was no possibility of appeal (not a good idea), and verdicts could be executed at once.

Including the death penalty. Which was not as swift as in the Soviet Union where the condemned could be dead less than half an hour after the verdict, but still swift – the convicted could meet the guillotine in a matter of a few days.

By far the most famous (actually, the only well-known Sondergericht) was the People’s Court (Volksgerichtshof). It was created in April 1934 for dealing with cases of treason or attacks on national or regional government members. Being the “supreme political court” (in a way), Volksgerichtshof took only the most important cases.

 

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