862.105/39

The Ambassador in Germany (Dodd) to the Secretary of State

No. 2043

Sir: As a question having a possible bearing on cases concerning the protection of Americans in Germany, I have the honor to report that the Chief Administrative Court of Prussia (Oberwaltungsgericht) has decided that actions of the Secret State Police in the performance of its duty are not judicable by the ordinary courts in Prussia.

This decision was handed down by the superior Court at its sitting of May 2 in a case referred to it on appeal from a lower court concerning the confiscation by the Secret State Police of the property of a Frankfort masonic lodge in November 1933. The judgment has only just been made public and occasion is taken by the German papers to discuss it in its various aspects. While the written arguments in support of the decision have not as yet been published, the press, drawing its conclusions from the oral statements of the President of the Court, set forth the basis of reasoning as follows.

Under Prussian law there is no general legal protection against official actions, and administrative as well as judicial recourse against such action can only be admitted if special provision to that effect is made. With respect to the ordinary police, recourse is envisaged under certain conditions by the Police Administration Law of 1931. The Law of April 26, 1933, providing for the establishment of a Secret State Police Department, attributed to this newly-constituted body the character of a state police authority, and moreover admitted in principle the possibility of rescission of its actions. This law, however, was superseded by the Law of November 30, 1933, which removed the Secret State Police from the jurisdiction of the Prussian Ministry of the Interior and made it immediately subordinate to the Minister-President. The latter law, it is explained, states: “The Secret Police constitutes a separate branch of the internal administration.”

The Chief Administrative Court drew the conclusion that the Secret State Police thereby became a special police authority. As there is no explicit provision envisaging legal remedy, and as the legal remedy [Page 276] provided by the Police Administration Law of 1931 does not apply to special police authorities, the court decided that since December 1, 1933, the date on which the Law of November 30, 1933, became effective, there are no means of legal recourse of any kind against duly authorized actions of the Secret State Police.

The judgment applies not only to confiscation but also to all other actions of the Secret State Police admissible through the supersession of former basic laws of the Reich, such as arrests (including so-called preventive arrests), house searches, examination of the mails and interception of private telephone conversations, telegrams, etc. It is interesting to note that whereas National Socialist judicial commentators have previously attempted to justify the exemption of the Secret State Police from court jurisdiction on the ground that it is acting in a primarily political capacity, the superior Court has endeavored to base its decision on positive legal provisions. The Court intimated that although there is thus no way of bringing suit for the rescission of measures decreed or taken, or of having the legality thereof examined by a court, complaints may presumably be lodged with the district supervisor, and if the same authority has so decided, remonstrances may be submitted.

The judgment is held to apply only to Prussia and therefore the status of the same question with respect to other parts of the Reich where the Secret State Police operates, is somewhat ambiguous. In view, however, of the current program of Reich reform for which Prussia has provided the general pattern, and in view also of the steps being taken to complete the national unification of justice, it is assumed that the decision is potentially of universal application, particularly as the Secret State Police now has competence throughout the entire Reich.

Respectfully yours,

William E. Dodd