What is a hypothesis in criminal justice

Crime and Criminal Law

Heribert Ostendorf

Prof. Dr. Heribert Ostendorf, born in 1945, worked as a judge for four and a half years after completing his studies, primarily as a juvenile judge. He then taught for eight years as a professor of criminal law at the University of Hamburg. From 1989 to 1997 he was Attorney General in Schleswig-Holstein. From October 1997 to February 2013 he headed the research center for juvenile criminal law and crime prevention at the Christian-Albrechts-Universität zu Kiel.
In addition to textbooks and legal commentaries, Professor Ostendorf has published numerous scientific treatises, especially on juvenile criminal law. His textbook "Juvenile Criminal Law" and his commentary "Juvenile Courts Act" have been published in the 9th and 10th edition and are considered standard works.

Political justice decides depending on political influences. It punishes people not because of specific crimes, but because of their convictions. Political opposition is fought with criminal law, crimes committed by one's own ideology are concealed.

Political Justice in the Weimar Republic

In the Weimar Republic there was a political judiciary that was "blind in the right eye" in order to look all the more closely with the left. The trial of Adolf Hitler and other defendants for the attempted coup on August 8th / 9th is indicative of the indulgence against the right November 1923 in Munich, when Hitler and General Erich Ludendorff tried to seize power in Bavaria and overthrow the Stresemann government with a march on Berlin. The indictment was high treason: "The accused, based on the armed forces of the Kampfbund and the armed might of the infantry schools, undertook to forcibly abolish the Bavarian government and the imperial government, to violently change the imperial constitution and that of the Free State of Bavaria and unconstitutional To establish governmental powers. "

The accused - in addition to Hitler and General Ludendorff, the former Munich police chief Ernst Pöhner, the later Reich Interior Minister Wilhelm Frick and six leaders of the "German Combat League", including Ernst Röhm - were able to use the hearing as a forum for their agitation against the republic and its representatives without serious rejection use by the court. The verdict was extremely mild. Hitler was sentenced to five years of imprisonment in a fortress and at the same time he was given the prospect of probation after serving six months in the courtroom. The provision of the Republic Protection Act, according to which non-Germans who were convicted of high treason were to be expelled, was not applied to Hitler, who at that time was still an Austrian citizen. The reason was: "For a man who thinks and feels as German as Hitler [...] in the opinion of the court, the provisions [...] of the Republic Protection Act [...] cannot apply." On December 14, 1924, Hitler was released from imprisonment and was able to continue his struggle for power.
The judiciary ruled far more harshly in the trial against the later (1936) Nobel Peace Prize laureate Carl von Ossietzky in 1931. As editor and editor of the "Weltbühne", Ossietzky had an essay printed on military armament in German aviation and the cooperation between The Reichswehr and the Soviet Union, contrary to the provisions of the Versailles Peace Treaty, were pointed out. As a result, he and the author of the article were sentenced to one year and six months imprisonment for divulging military secrets, even though they had only exposed violations of the Treaty of Versailles.

On February 28, 1933, the morning after the Reichstag fire, when the National Socialists took the opportunity to purposefully eliminate opponents of the regime, the committed pacifist and democrat Carl von Ossietzky was arrested again and later taken to a concentration camp.
In the Weimar Republic, a political judiciary measured two things: While Adolf Hitler was punished comparatively mildly for his attempted coup in 1923, the journalist Carl von Ossietzky (picture on the right, flanked by his lawyers) was convicted in 1931 for betraying military secrets, although he was merely convicted Had uncovered violations of the Versailles Treaty. (& copy Interfoto / Institute for Contemporary History)
Press drawing (from March 4, 1924) of the trial against Adolf Hitler for his attempted coup in 1923 - one of the few original documents of the trial that have survived (& copy SZ Photo / Süddeutsche Zeitung Photo)

Nazi dictatorship: perversion of the law

Every dictatorship seeks the appearance of legality. Coercive measures to maintain power are therefore clothed in the form of a law by dictatorial regimes. The Nazi dictatorship also went this way, whereby ultimately even the "Führer's order" was transfigured with the legitimacy of a law. This instrument allowed Hitler to issue orders that were "above the law" and were immediately valid.

In his report on the suppression of the alleged Röhm putsch, which was connected with the murder of around 100 SA leaders and political opponents, he had already shouted to the Reichstag: "At that hour I was responsible for the fate of the German nation and thus the highest court lord of the German people. " The leader of the 300,000 strong SA, Ernst Röhm, was seen by Hitler as a rival for power in the state. That is why Hitler used an allegedly imminent putsch by Röhm at the end of June 1934 to smash the SA and to have its leadership as well as other unpopular personalities murdered - without any trial. With the "Law on State Emergency Defense Measures" of July 3, 1934 - passed one day after the end of the murders - these crimes were declared "legal" in order, as Hitler asserted before the cabinet, "to legalize an action by which that whole people were saved from immeasurable harm ". By resolution of the Reichstag on April 26, 1942, Hitler finally had himself appointed supreme court lord.

Nevertheless, the National Socialists initially seemed anxious to maintain the facade of the rule of law. They only restricted the law - or circumvented them through special courts - where they stood in the way of persecuting their opponents. The alleged arsonist of the Reichstag, Marinus van der Lubbe, was sentenced to death on the basis of a law that was only passed after the offense. This became the rule of law "nulla poena sine lege" (Latin: no punishment without a law) abandoned.

As early as March 1933, the "Law to ward off insidious attacks on the state and the party and to protect the party uniform" (tightened in December 1934) was passed, according to which anyone who "publicly hateful, inflammatory or low-minded statements" about the NSDAP , the state or Hitler made, could be punished with up to two years imprisonment.

The Gestapo Act of February 10, 1936 formally eliminated all judicial control of state police actions and left the Gestapo free to determine its area of ​​responsibility itself. For example, unwanted people could now be sent to a concentration camp by the Gestapo even after they were released from prison. Thus the legal protection of the individual was abolished. Leading German lawyers like Carl Schmitt (1888–1985) gave themselves up to legitimize this early perversion of the law through constitutional law.

The National Socialists became clearer in the discrimination against the Jews and their total deprivation of rights, even if they tried to keep secret the fact that they had the Jewish population deported to concentration camps and systematically murdered there. The same applied to the persecution of other groups such as the disabled, homosexuals and Sinti and Roma. The law was integrated into the Nazi ideology as a means to an end. What was supposed to benefit the people was right; the dictator or the regime determined the benefits.

Gustav Radbruch (Reich Minister of Justice 1921/22 and 1923) branded such laws in 1946 as "legal injustice". On the other hand, he called for "supra-statutory law" and thus gave priority to recognized human rights. Judgments for crimes against humanity were passed on a similar basis in the Nuremberg war crimes trials. In 1946, leading National Socialists, but also criminal organizations such as the SS, Gestapo and NSDAP were convicted by the international military tribunal in Nuremberg. Between 1946 and 1949 another twelve trials against political, social and military leadership groups of the Nazi regime took place in Nuremberg before American military courts.

Death sentences
The Nazi injustice laws were compliantly and extensively applied by the criminal justice system - and not only against "ordinary" criminals. In particular, the political criminal "law" served as a means of suppressing any opposition. Both the People's Court, established in 1934, as well as the special courts and the courts-martial, thus became instruments of terror. The special courts were set up as early as March 1933. At first they were directed against political opponents; later (1938/39) their area of ​​responsibility was expanded to include serious and medium crime. There has been a long-term political dispute over the number of death sentences passed by the Nazi judiciary. Initially, only the death sentences in civil justice were counted.

Source text

Death sentence of the People's Court

In the criminal case against the crane operator's wife Emma Hölterhoff,
née Maass, from Erkheim via Memmingen, born on May 28, 1904 in Homberg (Niederrhein), currently in custody on this matter because of degradation of military strength, the People's Court, Bes.Senat, decided on the basis of the main hearing on November 8, 1944 in which have participated

as judge:
President of the People's Court Dr. Freisler, Chairman, People's Court Councilor Dr. Greulich, Major General of the State Police a. D. Meißner, SA group leader Aumüller, Head of the Reich Main Office Giese, as representative of the Oberreichsanwalts: Senior Public Prosecutor Dr. Weisbrod,

recognized for right:
In the fourth year of the war, Mrs. Emma Hölterhoff told soldiers to throw away the rifle at the front and play dead. So she dared to disintegrate our armed forces, has thus forever become the dishonorable maid of our enemies and is punished with death for this.

Ms. Emma Hölterhoff is a 40-year-old woman, mother of four children, who, as she says, has had her husband outside for four years.
In a bombing raid on Homberg am Niederrhein, her place of residence, she was able to save all her belongings, namely furnishings, laundry and other things, but had to be evacuated to the Memmingen area because the house in which she lived was damaged and was no longer habitable.
In January of the fourth year of the war, she was sitting in the kitchen-cum-living room of the Goll family, where she lived as an evacuee, with Ms. Goll playing a game of man-angry-not. In the room was Frau Goll's son, who had just been released from the Reich Labor Service, and besides two other young boys also Grenadier Vg. ("Volksgenosse") Arnold Häring, who was just at home on his first vacation.
The conversation turned to the war, and Frau Emma Hölterhoff now said how the Vgn. Arnold Häring and Hans Goll unanimously state that you are stupid; if I got out I would throw the rifle away and play dead. Both witnesses further stated in the preliminary proceedings that they also badly insulted our Führer and that they had added the sentence to their request to the young boys, including the soldiers: "If my husband would come out, he would do exactly the same."
Ms. Hölterhoff denies this abuse of the Führer and this last sentence. It can certainly be assumed that she said that too, because otherwise neither of the national comrades would make it known. But it was not necessary, for the sake of this finding, to let the two national comrades make the long journey here and burden the railway with it, because Frau Hölterhoff herself admits the core of her utterances. And this core already contains an invitation to the soldier and to those who will soon have to become a soldier to act in this way. [...]
The defense attorney wanted to emphasize that the defendant was primitive. The question of whether one is allowed to do something like this is not a question of simplicity or sophistication of knowledge, but is the question of decency of disposition and loyalty. And it has nothing to do with knowledge or primitiveness.
Anyone who talks like the accused, even if she should have done it only once, has thus degraded himself undignified and forever dishonor to the handmaid of our enemies of the war [...].
But anyone who becomes such a corrosive agent of our war enemies must be removed from our midst. Because his behavior is a tremendous danger for our fighting people and thus for our victory, so for our life and our freedom. In such a case, after the offense has been clearly established, the assessment of the required punishment must be based entirely on Germany's need for protection. And this calls for the death penalty in order not to let a development like the one in World War I arise again.
Because Mrs. Emma Hölterhoff has been convicted, she also has to bear the costs.

signed: Dr. Freisler, Dr. Horrible

Quoted from Helmut Ortner, The Executioner. Roland Freisler - murderer in the service of Hitler, Vienna 1993, p. 214 ff.