Monday, March 08, 2010

Leniency of West German Courts in Euthanasia Trials, 1948-1959

This table shows the decisions reached in major West German euthanasia trials held between 1946 and 1959. It can be clearly seen that sentences fell markedly from 1948 onwards. There were numerous acquittals and many defendants were found guilty of manslaughter or of being accomplices rather than being given murder sentences.

The main reason for this is that judges began to apply the principles of "conflict of duties" (Pflichtenkollision) and extra-statutory necessity (übergesetzliche Notstand). These had originally entered German law in 1927, as Lenckner shows here, to protect doctors who carried out abortions when the mother's life was in danger. They were extended to euthanasia trials after pressure from theological authorities, such as pastors, who opposed continued Nazi trials in the late 40's and argued that it was legitimate to take life if such taking of life prevented the taking of greater numbers of lives. Conservative judges were thus given a green light to choose to believe the defendants' claims that they had killed limited numbers of their patients rather than resigning, because by resigning they would have been replaced by someone who killed larger numbers of patients.

Most significantly, as Bryant has shown, this West German legal interpretation was not shared by the British occupying authorities, whose court sometimes overturned such acquittals. For example, the Supreme Court for the British Zone overturned the decision of the Duesseldorf court that had acquitted Creutz and four others on the grounds of extra-statutory necessity. However, the British court could only refer such decisions back for retrial in the state courts, which upheld the principle of West German law that was applied in the original cases. Creutz and his colleagues were thus acquitted for a second time, in case Ltd 191.

This is another nail in the coffin of denier legalism, which would have us believe that the West Germans were just puppets of their occupiers, who spent the whole of the occupation period staging show trials to make the Nazis look evil.

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