W. Germany takes first step in disowning complicity of Nazi-era judges

The first judicial condemnation of a Naziera court's verdict in West German history has profound moral and legal ramifications. It is the first step in acknowledging and disowning the complicity of Nazi-era judges in murder.

It is little short of sensational, since the judiciary had seemed exempt from any legal or societal accounting for its actions for almost half a century.

For decades the absence of any clear rejection of perverted Nazi justice by the West German legal profession has been considered scandalous by domestic and foreign critics of West Germany. No Nazi-era judge has ever been convicted (and had the conviction upheld) in the various Nazi murder trials under the postwar occupying powers or in West German courts. yet sober historians say there were hundreds of judicial murderers among them.

Moreover, judges and lawyers from Nazi times continued in active practice and often in high positions in West German courts after the war. (The "biological amnesty" has in the meantime largely resolved this issue; most of this category are by now either retired or deceased.)

Now for the first time the silence has been broken. In late December a West Berlin court overturned the infamous 1933 Reichstag fire conviction under which the communist Marinus van der Lubbe was executed. The judges in the original case, the Berlin court found, had bowed to the political powerholders in illegally sentencing van der Lubbe under a decree that was issued only after and because of the arson. The original judges were also found to have acted improperly in not letting one defendant who was his own lawyer speak -- while letting "witnessess" Hermann Goering, Nazi premier, and Joseph Goebbels, Nazi propaganda chief, harangue the court freely.

When the subject of the Reichstag fire came up in court a dozen years ago, by contrast, a West Berlin court reached just the opposite conclusion: It found it "strange . . . to accuse the Reich court of having been guided by political motivations." It saw the original acquittal of Van der Lubbe's codefendants and Nazi annoyance at these acquittals as evidence that the court had acted with independence.

Many older West German jurists approved this 1968 West Berlin court acquittal of the Nazi-era judges. They thought jurists shouldn't wash their dirty linen in public.

They argued that even if Nazi law was reprehensible, judges themselves couldn't change the law; they simply fulfilled their duty in administering it.

Both of these contentions have been rejected by the most recent Berlin court decision. In particular, the West Berlin court's posthumous voiding of van der Lubbe's death sentence has cited specific examples of court violation even of the existing law.

In many ways the Reichstag arson trial is a touchstone. It was the drama that Hitler used to justify his repression of the Communist Party before moving on to suppress other groups. The trial took place only a few months after Hitler's accession to power -- at a period when judges were not yet under the kind of personal threat that later became the norm.

(Historians are not completely agreed on the circumstances of the fire. Some think the Nazis instigated the arson to give them an excuse for suppression. Most historians think van der Lubbe did in any case set the fire himself; lawyers for the 1980 plaintiff, van der Lubbe's brother, did not contest this. The legal issue is the punishment rather than the original arson.)

The case is not yet closed. It has been appealed to a higher court in West Berlin -- the same one that gave a contrary verdict in 1968. It could later be appealed even higher, to the West German supreme court.

If the 1980 West Berlin court ruling stands, it could open a Pandora's box of retrials. Every prior court decision in West Germany has been made on the assumption that Nazi-era verdicts are a closed chapter.

Many of the old passions surrounding the whole issue of guilt of nazi-era judges are still around.A January issue of the General jewish Weekly praised the courage of the Berlin court in reaching its decision. It commented further that the decision "has made a contribution to the clearing up" of German history.

Two letters in a recent Die Welt also expressed strongly held views. The first observed, "Representatives of other Nazi power groups like the army or police were and are being brought before the court, and properly so. Only the representatives of Nazi justice are extremely rare [as defendants]."

The next letter writer, on the contrary, objected to all the fuss being made about the original arson trial when "hardly anyone doubts that the communist-steered Dutch vagabond Marinus van de Lubbe committed the crime." The writer regretted instead that no one challenges the "indefensibility" of the Nuremberg trials of G erman leaders as war criminals.