Franz Gürtner

Biography

Gürtner was the son of Franz Gürtner (locomotive engineer) and Marie Gürtner, née Weinzierl. After the gymnasium in 1900 in Regensburg, he studied law at the Ludwig Maximilian University of Munich. After eight semesters he made in 1904 his university examination. His preparation for Bavarian civil service was interrupted for the military service in the Königlich Bayerisches 11. Infanterie-Regiment „von der Tann“. After his second Staatsexamen in 1908 he worked as syndic for a Munich brewery association. On October 1, 1909, he entered the higher civil service of the Bavarian ministry of justice. On August 7, 1914 Gürtner was drafted as a reserve officer for military service in First World War. He served with the 11th Infantry Regiment on the Western Front. He rose to deputy battalion commander and received the Iron Cross II and I. Class and the Military Merit Order (Bavaria) IV class with swords. From September 1917 he took part with the Bavarian Infantry Battalion 702 (as Expeditionary Force) in the fights in Palestine. Therefore, he received the House Order of Hohenzollern with swords <and the Gallipoli Star>. His appointment as battalion commander on October 31, 1918 was the day of the surrender of the Ottoman Empire. He led the battalion back to Konstantinopel and arrived on March 17, 1919 in Wilhelmshaven, where he was demobilized.

After the war, Gürtner pursued a successful legal career, being appointed Bavarian Minister of Justice on 8 November 1922, a position he held until his nomination by Franz von Papen as Reich Minister of Justice on 2 June 1932.

A member of the German National People's Party (Deutschnationale Volkspartei, DNVP) and an old-school bureaucrat, Gürtner was sympathetic to right-wing extremists such as Hitler. During the 1924 Beer Hall Putsch trial, Hitler was allowed to interrupt the proceedings as often as he wished, to cross-examine witnesses at will, and to speak on his own behalf at almost any length. Gürtner obtained Hitler's early release from Landsberg Prison, and later persuaded the Bavarian government to legalize the banned NSDAP, and allow Hitler to speak again in public.

After serving as Minister of Justice in the cabinets of Papen and Kurt von Schleicher, Gürtner was retained by Hitler in his post, and made responsible for coordinating jurisprudence in the Third Reich. Although Gürtner was not a Nazi, he was an authoritarian by inclination (as were many of his DNVP colleagues by this time). He fully supported the Reichstag Fire Decree, which effectively wiped out civil liberties in Germany. Indeed, on the day before the Reichstag fire, he proposed a bill that was almost as heavy-handed as the Reichstag Fire Decree; it would have instituted severe restrictions on civil liberties under the pretense of keeping the Communists from launching a general strike. He also merged the German judges' association with the new National Socialist Lawyers Association (Nationalsozialistischer Rechtswahrerbund), and provided a veil of constitutional legality for the Nazi State.

At first, Gürtner also tried to protect the independence of the judiciary and at least a facade of legal norms. The ill-treatment of prisoners at concentration camps in Wuppertal (Kemna), Bredow and Hohnstein (in Saxony), under the jurisdiction of local SA leaders, provoked a sharp protest from the Ministry of Justice. Gürtner observed that prisoners were being beaten to the point of unconsciousness with whips and blunt instruments, commenting that such treatment

"reveals a brutality and cruelty in the perpetrators which are totally alien to German sentiment and feeling. Such cruelty, reminiscent of oriental sadism cannot be explained or excused by militant bitterness however great."

In 1933, Gürtner came into conflict with one of his subordinates, Roland Freisler, over the issues of Rassenschande (literally: "racial disgrace"), or sexual relationship between an "Aryan" and a "non-Aryan", which Freisler wanted immediately criminalized. Gürtner, in a meeting, pointed out many practical difficulties with Freisler's proposal. This did not, however, stop the passing of the Nuremberg Laws two years later, criminalizing it.

In the weeks following the Night of the Long Knives, a purge of SA officers and conservative critics of the regime that resulted in perhaps hundreds of executions, he demonstrated his loyalty to the Nazi regime by writing a law that added a legal veneer to the purge. Signed into law by both Hitler and Minister of the Interior Wilhelm Frick, the "Law Regarding Measures of State Self-Defense" retrospectively legalized the murders committed during the purge. Gürtner even quashed some initial efforts by local prosecutors to take legal action against those who carried out the murders.

By the end of 1935, it was already apparent that neither Gürtner nor Frick would be able to impose limitations on the power of the Gestapo, or control the SS camps where thousands of detainees were being held without judicial review. During World War II, the feeble protestation of the Ministry of Justice was weakened still further, as alleged criminals were increasingly 'dealt with' by the Gestapo and SA, without recourse to any court of law.

Instead of resigning, Gürtner stayed on, even going as far as joining the Nazi Party in 1937. He provided official sanction and legal grounds for a series of repressive actions, beginning with the institution of Ständegerichte (drumhead courts-martial) that tried Poles and Jews in the occupied eastern territories, and later for decrees that opened the way for implementing the Final Solution. A district judge and member of the Confessing Church, Lothar Kreyssig, wrote to Gürtner protesting (correctly) that the T4 program was illegal (since no law or formal decree from Hitler had authorised it); Gürtner promptly dismissed Kreyssig from his post, telling him, "If you cannot recognise the will of the Führer as a source of law, then you cannot remain a judge."

Gürtner died on 29 January 1941 in Berlin.