100th Birthday of Hans von Dohnanyi
Address of the President of the German Federal Supreme Court of Justice, Prof. Dr. Günter Hirsch at the Ceremony on the Occasion of the 100th Birthday of Hans von Dohnanyi on 8th March, 2002
The German Federal Supreme Court and along with it the entire justice have a special reason to honor and commemorate Hans von Dohnanyi. This is not only because as a judge he was one of our predecessors. Rather the person and the case Hans von Dohnanyi confront the justice and thus the judiciary in Germany with their past and with a coming to terms with it.
During the period of one human life, the justice in Germany was involved in two systems of injustice and was faced twice with the task of reappraising judicial injustice. Hans von Dohnanyi represents the efforts and the honor of the German justice, but he was also their victim.
Hans von Dohnanyi was a judge at the Reichsgericht (supreme court of the German Reich) –‒ the court whose tradition the German Federal Supreme Court has seen itself as carrying on from the beginning. He was murdered by criminals who called themselves judges. Ultimately, the perpetrators were acquitted of this judicial murder by a judgment of the German Federal Supreme Court in 1956, with the consequence that not one of the judges who had passed 50,000 death sentences during the Nazi rule, was held accountable. The German Federal Supreme Court explicitly distanced itself from this Dohnanyi judgment in 1995 in the course of proceedings about judicial injustice in the former German Democratic Republic.
These few sentences show that you cannot push to the back of your mind the role of justice in systems of injustice and in the reappraising of judicial injustice when commemorating the resistance fighter Hans von Dohnanyi.
The vast majority of the judiciary in the Third Reich consisted of “upright lawyers from imperial times,” in quoting Golo Mann. Taking the step from being a German nationalist to being a National Socialist was not particularly difficult for many, especially under the threat of dismissal for lack of loyalty to the regime.
The majority of the judges did not pervert justice, but many gave in to a formal law, even though materially it was injustice. The danger of a lawless state is not so much that it frontally causes judges to break the law, but that it lays down injustice in statutory form, assuming that judges will stop asking about what is right once they have a law handy.
The Enabling Act and emergency decrees destroyed the Weimar Republic in a legal sense; the road to terror was paved with laws.
Any remaining doubts in many as to the legality of the regime were eliminated by many prominent figures of the law. Let me mention here the distinguished teacher of constitutional law, Carl Schmitt, who ended up being the gravedigger of the Weimar Constitution and the “crown jurist of the Third Reich.”
With his essay “The Fuhrer protects the law” he gave the murderers of the so-called “Röhm Putsch” not only the justification of a state emergency above the law, but declared the Fuhrer’s deed to actually have been true jurisprudence. It was per se not under the authority of justice but was itself supreme justice. Theodor Maunz, Ernst-Rudolf Huber, Ulrich Scheuner, Ernst Forsthoff – the list of prominent university lecturers the Nazis were able to refer to is long. Karl Larenz deprived the Jews in Germany of their legal capacity and thus of their civil existence with the phrase, “The only fellow partaker of law is he who is a fellow national; the only fellow national is he who is of German blood.”
Is it any wonder – in view of these intellectual pioneers – that judges raised and trained in the spirit of the German subject, as described by Heinrich Mann in his famous novel, applied the law without questioning?
On April 6th, 1945, Hans von Dohnanyi was sentenced to death and executed in the Sachsenhausen concentration camp by an SS drumhead court martial by order of Hitler. On April 9th, Admiral Canaris, General Oster, Army Chief Justice Dr. Sack, Reverend Dietrich Bonhoeffer, and Captain Gehre were also sentenced to death and executed in the Flossenburg concentration camp by an SS drumhead court martial. Presiding judge of the SS drumhead court martial was Dr. Thorbeck, the prosecutor was Walter Huppenkothen.
Even as the law stood then, the procedure violated formal and substantive law in the most serious way. For example, the SS drumhead court martial did not at all have jurisdiction over the defendants who were not SS members, the court was not properly staffed with the concentration camp commander as assessor, no defense attorneys had been appointed, there was no clerk of the court, the defendants had obviously been tortured, the evidence was not according to the rules. Therefore after the end of the Nazi regime, Huppenkothen and Thorbeck were accused of aiding and abetting murder, among other things. The German Federal Supreme Court dealt with this case three times. With its first two judgments it repealed the respective acquittals by the jury court and pointed out in an impressive way how laws that do not even strive for justice and grossly disregard legal convictions about the value and dignity of human personality common to all civilized peoples, create no right, and a conduct according to such laws remains wrong.
Since hereupon, in the third round the defendants were sentenced to severe penal servitude for aiding and abetting murder, the German Federal Supreme Court changed its view fundamentally, repealing these convictions in 1956 and acquitting the defendants of the charge of aiding and abetting murder with the court martial proceedings. In the statement of reasons the German Federal Supreme Court viewed the SS drumhead court martial as a proper court, the obvious mock trial as due process, and the sentence according to then applicable law. The statement of reasons is a slap in the face. The resistance fighters are attested having committed treason and high treason “according to the then applicable laws of inarguable legal effect.” The SS judges could not be reproached for not examining the question whether the behavior of the accused was justified.
Thus the German Federal Supreme Court explicitly turned its back on “Radbruch’s formula,” according to which positive law is not applicable if it contradicts justice to such an intolerable degree “that the law being incorrect law has to give way to righteousness.”
The final outcome was that the German Federal Supreme Court maintained the conviction of Huppenkothen for aiding and abetting the murders of Bonhoeffer, Canaris, Oste, Sack, and Gehre, yet not because of the death sentences, but because he had been involved in the execution of these sentences without obtaining the necessary confirmation of the judgment from the “supreme lord of the courts.” This does not make the judgment any better but rather worse.
This is even more true since Huppenkothen was acquitted despite his undisputed participation even in the execution of the death sentence of von Dohnanyi for lack of evidence, because it had remained unclear whether this sentence also had been executed without the required confirmation from the “lord of the courts.”
Of this judgment of the German Federal Supreme Court, by the way with the participation of a judge who during the Third Reich was assessor of a special court and later Judge-Advocate, one needs to be ashamed. I am explicitly addressing you, the members of the von Dohnanyi, Bonhoeffer, Goerdeler families, and family of the other victims of the judicial murders left unatoned-for by the German Federal Supreme Court.
The consequences of this judgment were devastating. Not a single judge, not a prosecutor was sentenced in the Federal Republic for the thousandfold justice crimes committed during the Third Reich. After the sentence of Judge Rehse, who had participated along with Roland Freisler in dozens of death sentences on resistance fighters at the Volksgerichtshof (People’s Court), was finally repealed in 1968, the prosecuting attorney’s offices dropped all investigations of former judges.
This failure of post-war justice is and will remain a dark chapter in German justice history.
The German Federal Supreme Court was again confronted with the inability of post-war justice to atone for injustice [done] by the National Socialist justice when the conduct of judges in the former GDR was to be evaluated criminally. After the fall of the Berlin Wall, German courts – for the second time within a few decades – were faced with the problem of the justice having to reappraise the conduct of judges having been stooges of totalitarian regimes. Even though these two systems of injustice cannot be equated, it must be noted that there were an estimated 150,000 to 200,000 political criminal proceedings and 60 or 70 politically motivated and executed death sentences in the former GDR.
In this situation the judiciary were not only true to their responsibility to reappraise judicial injustice, but the German Federal Supreme Court also seized this historic opportunity to distance itself in no uncertain terms from its own case law, particularly the fateful third Dohnanyi judgment. This often gets forgotten when the role of the German judiciary is critically evaluated in the course of reappraising judicial injustice.
Because of its importance I will literally quote the essential statement from the judgment of the 5th Criminal Division, which explicitly speaks of an overall failed debate on Nazi justice:
“The National Socialist tyranny had caused a ‘perversion of the legal system’ that could have hardly been worse, and it is not without reason that the jurisdiction of the day has often been referred to as ‘blood justice’ in the face of the excessive passing of death sentences. Although the corruption of members of the judiciary by the rulers of the Nazi regime was evident, considerable difficulties were encountered in the criminal prosecution of Nazi injustice in this realm. The death sentences passed by the Volksgerichtshof (People’s Court) have remained unatoned for, none of the professional judges or district attorneys working for the Volksgerichtshof (People’s Court) was sentenced for perversion of justice, neither were the judges of special courts or court martials. The jurisdiction of not least the German Federal Supreme Court had a substantial part in this development. This jurisdiction has been the object of substantial criticism, which the Senate considers justified.”
There is a Higher Law
The evaluation of the German Federal Supreme Court that the resistance fighters surrounding von Dohnanyi were not sentenced to death for high treason by a proper court in a lawful trial but became the victims of a judicial murder, was a late rehabilitation of the victims by the German Federal Supreme Court and may show you, their families,
that the German judiciary have found their way back to Radbruch’s doctrine [stating] that there is a higher law than the written law.
One must never forget history, but one must not become the prisoner of history either. That the German judiciary, as almost all societal and political forces in the 50s and 60s, were not ready to face their history, is a historic fact but also an exhortation for us judges today.
The justice is a mirror of society, but judges have to be more than mere reflectors of societal stereotypes or political goals. The German Federal Supreme Court consciously takes the occasion of the 100th birthday of Hans von Dohnanyi to face the dark side of its history in order to reaffirm its responsibility in the present. To do it justice, the judiciary needs judges who feel obligated to the stated core values, stated in the Basic Law but also in ethical parameters. It is not without reason that a judge, according to the Basic Law, is not only bound by law but by law and justice. Just as a cathedral is more than the sum of its stones, justice is more than the sum of its paragraphs. It is the notion of justice, the ambition of righteousness, that legitimizes laws and ennobles the legal decision.
A jurisdiction bound to this calls for judges that are bound to this. Even just the appearance – however wrong it may be – that judges are elected and promoted based on criteria other than professional competence and their constitutional integrity, undermines the confidence in the judicial power. Membership in a party cannot be a criterion in personnel decisions on judges. Moreover, parliamentary responsibility of those who have exclusive human resource competence must be coupled with a transparent decision-making process.
Their fame before God
Let me conclude these explanations by quoting what Golo Mann said about forgetting and suppressing the men and women of the resistance, the “true elite” of Germany, in the post-war era:
“Thus they were ignored and forgotten twice… The indifference of the nation strangled the living and forgot the dead. By making the attempt of saving the purpose, continuity, and honor of German history, all of which was not able to be saved anymore, they also are part of a closed chapter of history, and their fame before God is far greater than that which well-meaning authorities labor to eke out for them in the eyes of posterity.“
With this event the German Federal Supreme Court aims to counteract oblivion.
We, the judges of the German Federal Supreme Court, bow before the former judge of the Reichsgericht (supreme court of the Reich) and resistance fighter, Hans von Dohnanyi, and before all who became victims of the justice. We feel your fate and your story to be an obligation to protect the weak and defend justice.
My thanks to all of you, ladies and gentlemen, for coming. The families – the sons, daughters, grandchildren of the von Dohnanyi, Bonhoeffer, and Goerdeler families – have bestowed great honor upon the German Federal Supreme Court with your presence.
Link to text in German: 100. Geburtstag Hans von Dohnanyi
And on our German website, “This post should help you understand the German legal system better.”
Only subtitles added to the above translation with a few important points, of a very important speech, highlighted.