The Holocaust and Fundamental Rights. Case studies for reflections on the work of officials
Article in the German weekly “Der Spiegel” on a court ruling on Schlegelberger’s pension
GERMANY the necessary severe penalty OFFICIALS (the death sentence) to be SCHLEGELBERGER carried out.” His Struggle On 3 September 1959, Finance Minister Schaefer had struck off The 86-year-old Professor Dr Dr h. the Professor and former State c. Franz Schlegelberger, who once Secretary’s retirement income; served as acting Justice Minister on 8 November of the following and thus as Hitler’s highest ranked year, following a complaint from lawyer, has still not given up his Schlegelberger, the minister was struggle for a pension: the latest ordered by the Schleswig hearing will take place between 28 Administrative Court to revoke and 30 November, this time at the his order. Higher Administrative Court in In court, Schlegelberger, Lüneburg. sentenced in 1947 to life The disputatious old man’s imprisonment for “crimes opponent is the state government against humanity” by a of Schleswig-Holstein, which is Nuremburg court, even cited unwilling to pay the former State Reich Propaganda Minster Dr Secretary a pension on the Joseph Goebbels as a character grounds that Schlegelberger’s witness. actions during the Nazi era were Schlegelberger declared to his “in breach of the fundamental judges that Goebbels’ diary principles of the rule of law”. entry for 19 March 1942 Schleswig-Holstein’s Finance includes the note that: “The Minister Dr Carl-Anton Schaefer bourgeois element dominates alleged that Schlegelberger had, (the Reich Justice Ministry)… for example: and because heaven and the → committed the 74-year-old Jew Führer are very far away, it is Markus Luftglass, who had been extraordinarily difficult to sentenced to 30 months’ prevail against these tough and imprisonment for hoarding eggs, sullenly working officials.” “to the Gestapo for execution”; At that time, Goebbels asked for → impinged on the dispensation of relief, and was given it. The justice by writing to Hitler on 10 deceased Reich Justice Minister March 1941 that “it would be Gürtner was succeeded by the invaluable” if the Führer could President of the National inform him “should a judgement Socialist People’s Court, not meet with his approval”; Thierack. Schlegelberger, who as → acted in breach of the State Secretary had been fundamental principles of the rule running Ministry business since of law by inviting Reich Ministries Gürtner’s death, retired at the “to apply the prescriptions against age of 66. treason retrospectively on a case by case basis to enable…
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The Holocaust and Fundamental Rights. Case studies for reflections on the work of officials
[Photo] Ex-State Secretary Schlegelberger A denazification certificate from Goebbels …
Given this judgement of Goebbels’, which they considered equivalent to a denazification certificate for the elderly plaintiff, Schleswig’s administrative judges were unwilling to turn Franz Schlegelberger down. Admittedly, they considered, Schlegelberger had committed “violations of duty.” But: “The peculiarity of his behaviour is… that in a conflict he acted against his duty with the intention of preventing worse injustice.”
[Photo] Kiel Finance Minister Schaefer … secures half his pension
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The Holocaust and Fundamental Rights. Case studies for reflections on the work of officials
To this well-worn self-justification, certain behaviour.” made by all indicted Nazi grandees, With this high court decision at its the administrative judges added back, the Finance Ministry in Kiel the appendix that: “the… plaintiff once more suspended payments to had… not been aware that he had Schlegelberger as of 31 December failed in his duty.” 1960. However, the ex-State Moreover, the Schleswig judges Secretary was too well versed in also absolved Schlegelberger of the law to contemplate accepting the indictment of the Nuremburg decision of the Ministry in Kiel Court: If that court had then unchallenged. Schlegelberger known of Goebbels’ diary, “it complained again – and again he would not have reached the was successful. judgement (that Schlegelberger On 27 March 1961, the Higher had committed crimes against Administrative Court in Lüneburg humanity)”. ruled in a partial judgement that The outcome of the legal dispute the plaintiff Schlegelberger would in Schleswig: the state was ordered continue to have the right to half to repay Schlegelberger, cleansed of his retirement income as State of nearly all guilt, his cancelled Secretary until the court had made pension plus four per cent interest. a final judgement. In addition, Hitler’s former State In the course of the trial scheduled Secretary was to be paid a pension for the coming week, ahead of a of DM 2,894.08 per month from final decision by the Higher state funds from now on. Administrative Court in Lüneburg, Finance Minister Schaefer the Bonn lawyer Dr Konrad appealed on the grounds that a Redeker, appointed by the state judgement made by the Federal government of Schleswig-Holstein Court of Justice had established to represent its interests, is now the principle that doubts about the seeking to present further material legitimacy of a decision were to be against Schlegelberger, some of “resolved through thought or which was first published by the enquiry”. SPIEGEL (SPIEGEL, 12/1961). “To that end,” the Federal Judges Redeker’s dossier includes, for had philosophised, “it is necessary example, a message from to exert the conscience; in a Schlegelberger of 27 April 1943, degree determined by the addressed to his Führer, according circumstances of the case and the to which, he was investigating a sphere of life and professional Jewish woman for fraud. The non- circles in which the individual Aryan had sold her breast milk to moved.” an Aryan paediatrician. Furthermore: “By exerting the This sale, argued the then State conscience… we mean that the Secretary of the Justice Ministry, perpetrator is obliged to make use could legally be considered fraud of all his powers of cognition and because “breast milk from a Jew all his ethical and moral values (could) not be considered food for when it comes to forming a German children.” judgement on the lawfulness of a
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The Holocaust and Fundamental Rights. Case studies for reflections on the work of officials
Redeker is also prepared to Redeker will also quote a use the 1941 speech in which speech made by Professor Dr the former State Secretary, Schlegelberger on the same now seeking his pension, occasion to demonstrate prepared the attorneys what we should make of the general and presidents of Schleswig judges’ maxim that regional appeal courts in Schlegelberger had only Hitler’s Gaus for the Third wanted to prevent worse Reich’s euthanasia measures. injustice: “My most urgent priority is to ensure that all Complaints from a possibly officials within the Reich outraged population, Justice Ministry… align Schlegelberger suggested, themselves with the National could be sent on to him Socialist state.” unprocessed. The complaints did not only remain Redeker doubts that after unprocessed, they went reading this document the unanswered. The acting Higher Administrative Court Justice Minister just filed in Lüneburg will agree that them. the plaintiff Schlegelberger was unaware of his wrongdoing.
Source: Der Spiegel, 47/1962, 22 November 1962.
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