West Germany agonizes over Hitler-era judges

Once again the unexorcised ghost of judicial complicity in Hitler's murders is haunting West German courts.

For the West Berlin prosecutors who have just begun interrogating the first of 56 Hitler-era judges that it may indict, what is at stake is the honor of present-day West German courts and their willingness - finally - to repudiate ''judicial murders'' in Nazi Germany.

For the state of Lower Saxony, however, what is at stake is more the honor of the judicial guild and the proper solidarity of jurists in not criticizing fellow professionals. That at least has been the reasoning over almost four decades by those who have successfully fought off any previous calling to account of Hitler's judges.

Formally, Lower Saxony has said only that questions of priorities and costs underlie its objection to a second initiative on the issue, a seminar on ''justice in the Nazi state'' planned to be held next year at the German Judges Academy in Trier.

If this all sounds vaguely familiar, the reason is that it's something of a rerun of 1968. That year saw the acquittal on appeal of Hans-Joachim Rehse, a former assessor on the notorious Volksgerichthof, the special court established by Hitler.

Mr. Rehse had previously been sentenced to five years' imprisonment by a lower court on seven counts of complicity in murder. He had at least 230 death sentences to his name out of the Volksgerichthof's 5,300 death sentences. Rehse's lawyers contended that he had simply followed the existing laws of the land.

Many younger West German jurists - and Robert Kempner, US deputy chief counsel at the Nuremberg war crimes trials - still consider Rehse's acquittal a travesty of justice. They maintain that the Volksgerichthof trials were political and illegal even under existing laws. As evidence for this, they cite the application of retroactive laws, the silencing of defense lawyers, and the turning over of the court to Nazi propaganda.

They also find it scandalous that after the war - even though many former German military officers, politicians, and (until the full onset of the cold war) industrial magnates were barred from public office or even private positions of influence - no such purge ever swept the courts.

The known survivors among the 560 Volksgerichthof judges and prosecutors flocked to positions on the bench in the new democratic West Germany and rose as high as - in one case - director of a state appeals court. When publicity about previous death sentences by some of them got too uncomfortable, these men were simply allowed to retire early, with pension. That was the only penalty.

It is not yet clear if this decade's attempt to establish legal repudiation of the Volksgerichthof's death sentences will have any more success than the 1960s' attempt did. Certainly a new generation of judges has moved up to the West German bench in the intervening years, and younger jurists feel little solidarity with their predecessors in the Third Reich. (Typically, the director of the West Berlin prosecutors' investigation is in his 30s.)

At this point, however, the key factor may be less the professional commitments of judges or prosecutors than a race against time. All 56 ex-jurists being investigated are retired by now and are in their 70s or 80s. Any indictments that are brought against them will not be ready before the mid-1980 s.