Abstract: The article is devoted to the history of the institution of the judicial letters (Richterbriefe), the implementation of which was one of the measures of the German Reform of 1942 of justice institutions and judicial system. According to the idea of its creators, this institution was supposed to form a «correct» view of judicial manpower concerning the judicial practice, corresponding to the needs of society and of the state, by means of the selective publications of extracts from judgements on specific cases. The Imperial Ministry of Justice was assigned to make the systematisation of the judicial practice for its «streamlining» and «direction». Law reviews and generalisations were published in a specially created press organ with a Ministry’s assessment of the correctness of the judgements. The task of the judicial letters was not to create direct, meaningful directives on the judgements to be made in specific cases, but indirectly to formulate principles for evaluating positive law through the prism of society’s needs in certain adjudication. The article describes the conditions for the establishment of the institution of judicial letters in Nazi Germany, defines also the causes and the motives of the reform of justice announced in 1942, its goals and objectives, as well as its measures to overcome the «crisis of justice». Concerning the institution of judicial letters, the article represents the provided by the reform process of the collection and systematisation of judicial practice, the selection criteria for publication of court decisions, analyses the methodological impact of judicial letters on the law enforcement process, describes the introduction of this institute into practice, including the distribution of judicial letters, and related complications relating to this history. Such a way of influencing the process of administration of justice was not accepted by the German judiciary. It was manifested in the large-scale evasion of judges from fulfiling the obligation to send copies of judgements to the Ministry for systematisation of judicial practice, strengthening with the end of the war approaching. More experienced and old judges interpreted the judicial letters as an instrument for intrusion into their exclusive competence area, which was protected by the principle of judicial independence. Nevertheless, the institution of judicial letters was in general an effective means of directing and unifying the judicial practice.

Keywords: History of state and law; history of German law; explanations of the court proceedings; Nazi Germany; sources of law; legal regulation; legal proceedings; civil process; criminal procedure; judicial independence.

He was in S.S. for fourteen years. He was a camp physician in Auschwitz for six years… [He] making great strides, too, saving lives rights and left… If he keeps going at his present rate, working night and day, the number of people he’s saved will equal the number of people he let die – in the year 3010.

Kurt Vonnegut. Cat’s Cradle¹

Instead of foreword

The idea for this article was largely spontaneous. In legal practice, the author has come across an approach which is not particularly theoretical but very fully reflects the current preferences of courts. A commercial court wants to leave the claim without consideration on the basis of item 4 of part 1 of Art. 148 of the Commercial Procedure Code of the Russian Federation (hereinafter – CPC RF) believes it sufficient to refer in the ruling to leave a claim without consideration not on the federal law but on the explanations of judicial practice contained in Information Letters of the Presidium of the Supreme Commercial Court of the Russian Federation (hereinafter – SCC RF) or Ruling of Plenums of the Supreme Court of the Russian Federation (hereinafter – SC RF) or the SCC RF.

Thus, according to the wording of item 4 of part 1 of Art. 148 of the CPC RF, a commercial court leaves the claim without consideration if, after the acceptance for proceedings, it finds that the claim under the federal law shall be considered in the bankruptcy proceeding. Having failed to find any provisions in the text of the current Federal Law “On Insolvency (Bankruptcy)” (hereinafter – the Law on Bankruptcy)² in support of the conclusion that the claim shall be left without consideration, the commercial court in the case in which the author participated as a party representative felt possible and sufficient to refer only to clause 18 of the Ruling of the Plenum of the SCC RF No. 63 dated 23 December 2010 “On Certain Issues Related to the Application of Chapter III.1 of the Federal Law “On Insolvency (Bankruptcy)”, pursuant to paragraph chapter 3 of which “a claim of an insolvency administrator and any other interested persons to invalidate the sales of debtor’s property, including the sales held during the enforcement procedure, after the introduction of a monitoring procedure and up to the completion of bankruptcy case shall be brought in the bankruptcy case under the rules of Chapter III.1 of the Law on Bankruptcy”³. The commercial court thus equated the federal law and explanations of the Plenum of the SCC RF in terms of legal force⁴.

The Ruling of the court of first instance was upheld by the courts of appellate⁵ and cassation instances⁶ even though the Ruling of the Plenum of the SCC RF No. 63 dated 23 December 2010 constituted a clarification of the procedure for applying Chapter III.1 of the Law on Bankruptcy “Challenging Debtor’s Transactions”⁷ in its original version. At the same time, after the adoption of this Ruling of the Plenum of the SCC RF and the Ruling of the Plenum of the SCC RF No. 59 dated 30 July 2013 slightly amended it, the Law on Bankruptcy was significantly amended. As a result of it, the norms commented upon by these Rulings underwent fundamental changes. This, in the author’s opinion, obliged the commercial courts when applying the explanations proposed by the Plenum of the SCC RF, to correlate them at least with the current text of the legal norms to which they refer and the general concept of the legal institution of challenging debtor’s transactions determined taking into account the legislative revision undertaken.

Drafting the complaint to the Constitutional Court of the Russian Federation on the violation of constitutional rights and freedoms of a citizen by the provisions set out in paragraph 4 of item 3 of part 4 of Art. 170 of the CPC RF, inasmuch as, in the meaning attached to them in law enforcement practice, they make binding the explanations of the judicial practice of the SC RF and the SCC RF, the author collected a significant amount of materials on such a phenomenon functionally connected with the explanations of the judicial practice as Richterbriefe. The author believed that time and place, as well as reasons and conditions of the establishment of this procedural law institution, may be used as additional arguments in favour of the unconstitutionality of the current Russian judicial practice of substitution of legal provisions by explanations of the higher courts on the procedure of their applications. Although the Constitutional Court of the Russian Federation which at the moment of receipt of the said complaint was immersed in consideration of the issue of the constitutionality of the contributions for capital repair of the common property in the apartment house limited itself to a formal reference to the existence of the SC RF right to give, pursuant to Art. 126 of the Russian Constitution, explanations on the issues of judicial practice and the similar right of the SCC RF, now abolished, under the previously valid Art. 127 of the Russian Constitution without correlating the relevant provisions to the foundations of the constitutional order under Art. 16 of the Russian Constitution, refused to take the complaint into consideration⁸. The author has had at his disposal developments of purely scientific value both for historians and theoreticians of state and law, as well as for specialists in the procedural branches of modern law. These are brought to the reader’s attention.

In order to avoid hasty conclusions regarding the extrapolation of the material characterising Germany in the 1940s years to the contemporary Russian reality, the author would like to assure that he, firstly, in no way equates the German Richterbriefe on the one hand and Russian explanations of judicial practice, on the other, considering them exclusively as functional analogues. Secondly, the author does not call for immediate repeal and complete eradication of the Rulings of the SC RF and the Ruling of the SCC RF remaining in force, at least because practical consequences of such a step will result in many times greater harm. The current level of normativity and quality of legal writing of domestic laws characterised by a significant amount of contradictions and incompleteness in the absence of explanations of their application will result in the removal of such a qualitative feature of law as its formal certainty. It will lead to the adoption of conflicting judgements formally based on the same legal provisions⁹.

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The institution of judicial letters (Richterbriefe) was a part of judicial reforms implemented in Germany between 1942 and 1945. This reform was officially aimed at overcoming the “justice crisis” that had allegedly erupted in Third Reich before the Second World War. The prevailing perception in contemporary German doctrine is that the “justice crisis” hardly existed in reality and was “staged” by the National Socialists as a convenient excuse to implement decisions aimed at finally subordinating justice to the objectives of the “total war” and at the further political radicalisation of it¹⁰.

The idea of a “justice crisis” culminated in Hitler’s speech in the Reichstag on 26 April 1942. The main complaints on the state of the Reich the judicial system were formulated in it. These essentially consisted in handing down judgements and verdicts which are “alien to people”, the anti-people image of all lawyers and, especially, judges who had been educated in the democratic values of the Weimar Republic and were unable to act in accordance with new values of National Socialistic state, as well as a perception that the principle of judicial independence was alien to law¹¹. While the last two points are self-explanatory, in regard to the first one, it is worth pointing out that this “negative quality” of judicial system was not a matter of inability to pass fair punishment for crimes against the state, the regime, and the army, but rather of the overly lenient sentences for common crimes. In his speech, Hitler refers to the injustice of the 1937 verdict, in which the court handed down to an accused a penalty of five years imprisonment for killing his wife. Hitler presents the situation as if it were an unjust, overly lenient punishment for a domestic tyrant who systematically tortured his family, but who has sentenced only to “five years imprisonment while tens of thousands of valiant German men must die defending the homeland against the threat of Bolshevism”¹².

This was last Hitler’s speech in Reichstag, which were no longer convened¹³: The Reichstag decision dated 26 April 1942 gave the Führer unlimited authority to act in any capacity and to any extent necessary. This not only repeated the functions of head of state and commander-in-chief of the armed forces, but also officially united the three branches of state power, for the first time gave him authority of the supreme judge¹⁴. The idea of separation of powers in a totalitarian state was put to rest. However, political demagoguery which was not backed up by concrete steps could not have any significant impact on the administration of justice on the ground. The implementation of ideas on a “new justice” requires either a total renewal of the judicial staff or a significant limitation of the judges’ power. Since the lustration possibilities were severely limited due to the “total war”, the only option left was the second way.

The ideologists behind the reform of justice outlined in this way were Otto Georg Thierack (1889–1946), who was appointed Reich Minister of Justice on 20 August 1942, on the same day he became the President of the Academy of German Law and leader of National Socialist League of Law Guardians, and Curt Rothenberger (1896–1959) who took up the post of the state secretary at the Reich Minister of Justice also on 20 August 1942. The reform of justice they envisaged included, among other things, immediate measures of a personal nature. They included almost halving the number of judges in office and raising the age limit for judges to 35 years¹⁵; establishment of on-site inspections of court activity in districts by the Reich Ministry of Justice top-level management¹⁶; obligatory reporting by judges and coordination of judgements with the Ministry of Justice¹⁷, as well as the president of their court¹⁸, which was called “giving aid” to the judge hearing the case and shall be strictly adhered to in criminal cases¹⁹; the reform plan also included the broadest reforms to the court and system and legal education. However, one of the most symptomatic measures to “streamline” judicial practice from the point of view of ensuring that judges were oriented towards the needs of society and the need to achieve uniformity in the law enforcement practice of German judges in accordance with National Socialists ideas was the establishment of the judicial letters (Richterbriefe), that idea did not belong directly to Thierack. It was suggested to him by a “third party” and was judged “so good” that he immediately reported it to the Führer²⁰.

The institution of judicial letters was intended to give the judicial staff “right” perception of judicial practice in line with the needs of society and the state by selectively publishing extracts from judgements. The information to be published on the case included 1) a brief title of the case and details of the judgement in the first instance; 2) a brief description of the background of the case; 3) a statement of the reasoning of the judgement; 4) a position on the correctness of the judgement rendered. In order to ensure the representativeness of such reviews of judicial practice, the courts were obliged to send copies of the judgements rendered to the IV Division of the Reich Ministry of Justice which carried out the preliminary systematisation of judicial practice. The resulting judicial practice reviews were to be published in a specially created printed organ of the Ministry of Justice, “Richterbriefe: Mitteilungen des Reichsministers der Justiz” (Judicial letters: Notices of the Reich Ministry of Justice). A total of 21 such judicial letters were published during the period of this institution existence, of which the first was dated 01 October 1942 and the last on 01 December 1942.²¹

It is of interest that the judicial letters were not an instrument of direct influence on judicial practice. Deriving their content and the method to the antipositivist paradigm which prescribes the assessment of the applicable law from the perspective of the current needs of society, judicial letters did not contain a clear algorithm of the judge’s procedure. It was limited to the evaluation of the correctness of the published judgements and the reasons for such assessment by the Ministry. The direct instructions relating to the “right” to establish judicial practice were not contained in the judicial letters. The purpose of the judicial letters was not, therefore, to provide direct substantive directives on the judgement to be rendered in particular cases, but to form indirectly the principles of the evaluation of positive law through the prism of the needs of society in the specific resolution of the case²².

According to Ingeborg Maus, this approach to the drafting of judicial letters was explained by the official concept of law enforcement in the Third Reich which was based on the free search for the content of legal norms through the needs of society. So, the Ministry was responsible for encouraging judges to adapt the positive law created in the pre-Nazi period²³. This idea is clearly expressed in judicial letters, German lawyers should protect the values of the people and not be slaves of the law²⁴. The judicial letters encouraged the independent search for a system of reasoning which would allow differentiating judicial practice in particular cases depending on the factual circumstances while maintaining the criteria for such differentiation²⁵.

In addition, judicial letters were intended to reflect the “chaos of law enforcement” in order to dispel any normativist illusions on the part of lawyers that law enforcement based on formal logical connections and a hierarchy of legal rules could find an objective scale in itself. I. Maus observes that in the cited judgements, there is a total incomparability of the result even in the cases comparable from the National-Socialist point of view. One-third of judgements published demonstrate the fallacy of the methodology which led the judge to the conclusion that too severe punishment should be imposed²⁶.

The judgements published in the judicial letters assessed from the methodological point of view can generate the conviction that justice shall be achieved not through the formal-normative binding of the enforcer but through the value unification of the result obtained in the course of law enforcement²⁷. In this respect, I. Maus points out that the ideas that led to the collapse of independent justice in Nazi Germany were based on the same principles that had determined the law development until 1993. They remained within formal frameworks of the written and largely obsolete legislation and drew recourses for further development of legal doctrine from general clauses and open rules and defined the vector of its development based on the needs of civil society and civil commerce²⁸.

A specific feature of the preparation of judgements for publication in the judicial letters deserves attention. While the factual circumstances of the favourable judgement were mostly reduced, in the case and verdicts that were unfavourable to the Ministry, the court rendered such a judgement was not named in the text of the judicial letters. This decision was motivated neither by a desire to lower the judge’s self-esteem nor by a desire to prevent reprisals by the regime fanatics. This decision was based on purely practical considerations. Since the court presidents were obliged to send copies of judgements to the Ministry for the purpose of drafting the judicial letters, the ideologists of the justice reform feared that mentioning the court that issued the unfavourable judgement in the judicial letter would be made the court managers evade this rule enforcement and, in long run, it may lead to the shortage of the material for systematisation. The Ministry, therefore, was interested in cooperation with courts since, without pre-selection in the field, the search for interesting judgements by the ministerial staff alone would have taken years²⁹.

Strictly speaking, Nazi German law did not include an obligation on judges to follow the position reflected in judicial letters, nor did judges have any liability for judgement which contradicts such explanations, nor was it possible to overturn or challenge the judgement rendered without regard to such explanations. Nevertheless, even judges in the Third Reich were firmly resentful of such attempts to interfere in the course of justice. It was evidenced by the frequent evasion of judges to send the copies of judgements to the Reich Ministry of Justice for systematisation of judicial practice which increased when the war drew to a close. Although the courts initially sent copies of judgements to the Ministry of Justice³⁰, they did so only very slowly and during the last year of the war which was still a very stable period the Ministry had to remind the judges several times that they shall send the copies of judgements³¹.

In 1944, the institution of judicial letters was slightly modified with the result that the judges were obliged to “send not only, as previously required, single judgements of various categories but also brief reports on matters in which the practice itself felt the need of guidance”³².

In terms of content, the judicial letters shall have covered not only criminal verdicts but also civil judgements and “judgements of all kinds”, although in reality most of the published materials covered criminal cases. This is explained on the one hand by the assignment of the work of preparing the judicial letters to Division IV of the Ministry of Justice responsible for criminal justice and by the reduction on the other hand of the legal field of the National Socialist state to the level and extent of the criminal law³³. The aim of the judicial letters was, as pointed out, not to create new casuistry, but to encourage judges to seek new solutions based on current social needs, i.e., to root a new legal method in judicial staff³⁴. For criminal justice, the objectives of the proposed adaptive approach to exegesis by judges have been formulated as follows: the legal qualification of an act and sentencing of a criminal case involving harm to the prisoner of war poses an extremely difficult task for the judge, which it will only be able to solve if, in addition to the statutory offence, it always keeps the special political and military content of the criminal sanction in mind. The extent of this assessment of guilt and wrongfulness of prohibited acts against a prisoner of war is a political necessity which is determined by the meaning and purpose of the law³⁵.

Therefore, the judicial letters strove to find a system of reasoning which would enable the judicial practice to be based on a fundamentally new differentiated approach by placing political necessity above formal equality and evaluation of all actions and events exclusively through the legal prism. Criteria of differentiation and discrimination applied in each particular case were subjected to a value judgement. This judgement completely excluded the comparability and expectation of the judicial actions in terms of the formal logic of the law, but not in terms of presumed or better said finagled expectations of society and the state. Ingeborg Maus points out that this quality of the judicial letters was a perfect illustration of G. Göring’s thesis that in the National Socialist state the rule of law is based not on the law itself, but on its uniform administration³⁶.

The target audience of the judicial letters was not only the judges, but also other legal professionals involved in the judicial process. This probably explains why the idea of a separate institution of guidance for attorneys-in-law, similar to the judicial letters, was not successful. The only Letter to Attorneys-in-Law was published on 01 October 1944³⁷. There was no need for them since the necessary guidelines for shaping an attorney-in-law practice were set directly by the judicial letters.

A curious point related to the system of dissemination of judicial letters to the legal professions is worth noting. The literature indicates that every judge and every prosecutor in the public prosecutor’s office was given a copy of the judicial letters by their superior against signature. Prosecutors in local courts were not given their own copy, but their content was brought to their attention by the president of the relevant local court³⁸. The content of the letters was regularly communicated to the party and the Reich chancellery, as well as to the security office³⁹. For the purpose of informing attorneys-in-law, there was originally a project to send the judicial letters to the President of the Reich Bar Association for the lower chambers. However, it was abandoned. So, it was left to the attorneys-in-law to familiarise themselves with the contents of the letter⁴⁰.

A review of the German literature on this extraordinary institution, which anti-democratic character is unquestionable, reveals the attempt to further demonise this institution by attributing to it special additional qualities in the spirit of the general perception of the Nazi regime. For example, Sarah Schädler, author of a voluminous and wide-ranging study of O. Thierack’s “justice reform”, attempts to classify the judicial letters as secret, apparently, with the aim of making the reader more disgusted by this Nazi invention. She explains it as follows: “It is obvious that the judicial letters were to be kept secret. Secret discussion of them was important to the Reich Ministry of Justice because there was even detailed discussion of whether they should be passed on to a judge’s or prosecutor’s property since in the event of the death of the owner they might become part of the estate and be passed on to relatives which are absolutely inadmissible”⁴¹.

This lengthy statement is not accompanied by any reference to a primary source. On the contrary, the nearest subsequent reference to a source refers to the author’s reasoning that it made sense to regard the judicial letters as state property on loan to an official to be returned after the death of a judge or a prosecutor. However, even in this case, the author’s very responsible statement lacks an authoritative source. The note refers to the letter from O. Thierack to the President of the Supreme Land Court of Zweibrücken dated 25 January 1944. It, firstly, does not have the normativity quality, and secondly, it was written one and a half years after the judicial letters were introduced.⁴². Therefore, in S. Schädler’s study, this thesis, which is of considerable importance, is given the character of a self-evident statement.

However, in reality, there is no reason to assume the secret or, at least, the private character of the judicial letters. It is confirmed at least by the absence of any formalised list of officials entitled to consult the letters, as well as by the lack of information on the regime in place of storage of the judicial letters, and the liability for its violation. Since, according to S. Schädler, there have been discussions on the possibility of these publications being inherited as well as other papers of the deceased, it shall be accepted that they may have been kept at home which is unlikely appropriate for a classified document. The fact that departmental publications have been published by departmental subscription may not, in itself, be evidence of any restrictions on the dissemination of information contained there.

There is another essential point which, apparently, has not been properly evaluated in S. Schädler’s study. It should be borne in mind that the idea of the judicial letters is a way of putting into practice the criticism of the judicial system contained in Hitler’s speech in the Reichstag on 26 April 1042. This speech did not have any degree of secrecy, on the contrary, it was widely used for propaganda purposes. Although there are no doubts on the anti-democratic character of such an institution of uniform judicial practise, the creation of judicial letters was not mentioned as an autonomous crime in the indictment against Curt Rothenberger in course of the proceedings against the Nazi judges nor in his conviction⁴³. However, it was referred to as one of the instruments invented by Nazism to influence the judicial system and to use by the state apparatus of repression for criminal purposes⁴⁴. Of course, during the Nazi dictatorship, far worse things were openly committed in Germany than such an attempt to find an instrument to “streamlining” judicial practice. So, speculation on the secret nature of the judicial letters is unlikely to be true⁴⁵.

The result of using the judicial letters to shape the judicial practice required by the Nazi regime was entirely in keeping with the spirit of the times. Initially interpreted by the judiciary as a sign of a certain strengthening of judicial power following Hitler’s devastating speech, primarily due to the special way in which the Nazi state imposed requirements on judges, which did not involve direct instructions and was limited to outlining methodological guidelines. Nevertheless, the judicial letters provided an essential framework for the exercise of judicial power. At the same time, the combination of clearly incompatible elements in the creation of this institution – the principle of free course of justice based on a search for the true need of the people on the one hand and the total eradication of judicial independence on the other, has often led to attempts to mechanically copy the judgements published favourably received by the Ministry and to the manipulation of incomparable situations for these judgements⁴⁶. Although more experienced and older judges perceived the judicial letters as an instrument of interfering in the sphere of their exclusive competence based on the principle of independence of justice, which was subject to certain criticism by them⁴⁷, soon after the judicial letters were introduced, they were perceived as a necessary and completely indispensable measure to make correct judgements which also allowed them to remove any moral responsibility for a particular judgement⁴⁸.

The judicial letters outlived their creators for a long time. Having been irrevocably eradicated in West Germany in the course of the policy of denazification of society and the state, this institution has essentially found a second life in the socialist German Democratic Republic, where a functional analogue of the judicial letters⁴⁹, explanations of judicial practice, was successfully used until the German unification, although probably originating in Soviet law⁵⁰. ■