That first postwar repudiation of Nazi-era judges by the West German judicial system didn't stick after all. A West Berlin appeals court has overruled the lower Berlin court's posthumous verdict of "not guilty" for Dutch communist Marinus Van der Lubbe. Van der Lubbe was executed by the Nazis in 1933 for allegedly starting the Reichstag fire -- the incident that Hitler exploited to repress political resistance and consolidate his rule.
In a country in which the judicial profession deems it shameful to criticize Hitler-era colleagues, the West Berlin court of first instance caused a sensation last December when it nullified the 1933 court judgment. Hitler's 1933 court, the 1980 Berlin court said, had bowed to the political power holders in illegally sentencing Van der Lubbe under a decree that was issued only after and because of the arson.
Now the West Berlin appeals court has overruled this nullification. A contemporary West German court, it decided, has no competence to consider a verdict made in a totally different judicial system in a totally different predecessor state.
After the reversal of the reversal, one supreme court justice was quoted as commenting that "It is the 'great disgrace' of German postwar justice that it has never called to account a single one of those Nazi-era 'murderers in judges' robes.'"
He was referring to the fact that despite hundreds of judicial murders under Hitler, no judge from that period has ever been convicted (and had the conviction upheld) in the various retrospective trials under the postwar occupation powers or in West German courts. And judges and lawyers from Nazi times continued in active practice and even in high positions in West German courts after the war.
By now most of these people are retired or dead. But the West German judiciary has never dissociated itself from them.
Van der Lubbe's brother plans to appeal the lat est decision.