Dr. Stephan Heidenhain acting for a client from Buenos Aires has achieved the reversal of a historic miscarriage of justice after exactly 88 years, in the form of annulment of a jury court verdict handed down by the district court Altona on 7 November 1935 against the client’s grandfather, Leo Smechow, for “attempted racial defilement”.
Dr. Stephan Heidenhain, attorney-at-law at the Prague office of bnt acting for a client from Buenos Aires (Argentina), has achieved the reversal of a historic miscarriage of justice after exactly 88 years, in the form of annulment of a jury court verdict handed down by the district court Altona (today Hamburg-Altona) on 7 November 1935 against the client’s grandfather, Leo Smechow, for “attempted racial defilement”. The prosecutor’s office in Hamburg confirmed the annulment on 7 November 2023. The petitions of the Argentine granddaughter and her son for naturalization are still pending, the question here being whether they are entitled to German citizenship not least because of the injustice done to their predecessor.
The conviction of 88 years prior was the culmination of a criminal case which at the time drew much attention within the Reich (with reporting by the Berliner Tagblatt and the Frankfurter Zeitung of 8 November 1935) as well as abroad (cf. a report by the Jewish Telegraphic Agency of 11 November 1935) but must probably be considered all but forgotten today; the defendant before the Altona jury court was Leo Smechow, “a merchant and … commercial agent for wine”, “of Mosaic extraction”, born 1912, a stateless Jew (who had previously held Polish citizenship, but the Polish authorities had recently denaturalized him). Leo Smechow had been charged with attempted rape, on 8 October 1935 near the Hamburg harbor, of “witness Hilde Häbermann, née Kohl, … Aryan”, a married functionary of the Nazi organization BDM. This kind of crime was punishable at the time pursuant to Sec. 176 or Sec. 177 of the German Penal Code of 1871, as “aggravated fornication” or “rape”, but possibly also as “racial defilement” under the Nuremberg Laws, i.e., specifically, the “Law for the Protection of German Blood and German Honor” (Sec. 2, Sec. 5 (3)), which had only recently come into force on 17 September 1935.
There were open juridical questions: Was the mere attempt of racial defilement punishable? Could foreigners or stateless individuals of Jewish faith (within the meaning of the Nuremberg Laws) be perpetrators? The Jewishness of Leo Smechow, born in Kolno in Poland, resident in Germany since 1913 (at first in Halberstadt, then in Hamburg) (and eventually living out his long life in Israel, where he died in 2004), was beyond contention – but he was no citizen of the German Reich (nor could he have been under the Nuremberg Laws; at the time of the “crime”, he was stateless, having been denaturalized by the Polish authorities). In the end, the chamber of the jury court at the Landgericht Altona (composed of presiding judge Tüxen and judges Hall and Dr. Hartz) sentenced him to nine months’ imprisonment for “attempted racial defilement”. Considering the circumstances, this was a fairly lenient sentence. Leo Smechow served his nine-month sentence in Hamburg and in 1936 managed to emigrate, together with his wife, to Uruguay (and eventually to Argentina).
Only as of 2000, when the Law on the Annulment of Unjust National Socialist Verdicts came into force, criminal judgments passed (inter alia) under the Nuremberg Laws are deemed annulled or may be annulled upon request, as they automatically qualify as unjust National Socialist verdicts. One may also file a motion to obtain confirmation of the annulment. bnt, acting on behalf of Leo Smechov’s descendant, successfully pushed for such confirmation in a procedure which was completed on 7 November 2023 and which rehabilitated Leo Smechow after 88 years to the day.
At the same time, motions are pending in the Federal Office of Administration (BVA –Bundesverwaltungsamt) in Cologne (Köln), filed in March 2023 by the grandchild and great-grandchild of Leo Smechow as they seek to be awarded German citizenship under Sec. 15 of the Nationality Act (Staatsangehörigkeitsgesetz – StAG). bnt has been representing the petitioners also in this administrative procedure. Sec. 15 of the Nationality Act came into force (alongside an amended Sec. 5) on 21 August 2021; pursuant to Sec. 15, first sentence, No. 4, émigrés who emigrated from the German Reich after 30 January 1933 and all their descendants may seek German citizenship as a form of restorative naturalization if they left “Germany” due to persecution for “racial and political reasons” within the meaning of Art. 116 (2) of the German Grundgesetz (Basic Law) (whereas former German citizens come within the purview of Art. 116 (2) because most of them became stateless on 27 November 1941 if they permanently resided outside the borders of the “Greater German Reich” as at that date). In the case of Jews, the assumption is that these reasons were present – Leo Smechow’s case stands out in that he was actually being prosecuted in a court of law. Seeing as he came from Hamburg (as opposed to, say, Danzig, Memel (Klaipėda), the Sudetenland, Prague, or Vienna – Sec. 15 No. 4 of the Nationality Act is ambiguous in this respect), he emigrated from “Germany”. However, the petitions of the grandchild and great-grandchild of Leo Smechow for naturalization are still pending – unfortunately, the Federal Office of Administration in Cologne now reports processing times of up to 6 (six!) years, having been inundated with almost 20000 petitions pursuant to Sec. 15 of the Nationality Act. bnt is representing dozens of applicants, e.g. from Danzig, Memel, Prague, but also Romania and Eastern Galicia. We hope that a decision on the petitions by the Smechow family will become available much sooner than in 2029 – after all, justice to redress the misfortune suffered by Leo Smechow must be served swiftly in order to be truly restorative.