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Nazi law used to block back-pay fight

A special AWTW investigation

A former civilian security guard at a Nato base in Germany has come up against a law enacted by the Nazis in his long-running fight for unpaid shift allowances for himself and a group of colleagues. Michael Smith was employed as a security guard by the British Army at Mönchengladbach, from January 1990 until he was dismissed in March 2004 on what he claims were trumped-up charges.  

He believes there are 30-50 million Euros at stake as up to 800 other people are also employed under the same contract with the Ministry of Defence and its German agents. The Ministry of Defence has used scare tactics to warn off would-be claimants against an outdated, unworkable contract which was implemented on 1st January 1967.   

Work-related problems escalated in July 2000 when Smith finally obtained a copy of his contract of employment in English. The MoD was later to deny the validity of this version, even though they later sent a copy to Smith’s father. He discovered that he was entitled to shift allowances, which were never paid, even though he asked both the works council and his employer about this. This left him with no other choice than to take legal advice and put the matter before a court.

His industrial tribunal hearing in 2001 was farcical. His original lawyer decided to go on holiday instead of representing Smith in court. His last-minute replacement refused to utter a single word in argument and the presiding judge would not allow Michael Smith to say a word! Smith says: “There is also a strong suggestion that the employer’s chief personnel officer wrote the court’s judgement! An employee of the Ministry of Defence did not deny this allegation when it was put to him in writing.”

During his campaign for justice, Smith later discovered that he had run foul of the Law on Legal Advice, introduced by the Hitler regime in 1935. Regulations under the law ensured that Jewish lawyers and judges could no longer be active. In order to prevent struck off lawyers giving free advice and representing clients against the Nazi state, authorised lawyers were given a monopoly on legal services.

After the Second World War, the Allies somehow allowed the Nazi Law on Legal Advice to remain on statute,  although the regulations against Jews were revoked. The German Justice Ministry states the law does not mean what was originally intended, claiming that it now protects the client. The German constitutional court and European Court have both upheld the Nazi law.

In effect, the law prevents people from defending themselves, speaking in court or campaigning against an injustice. They are denied the basic right to legal representation to further their case. In one case, a court in Nuremberg fined a voluntary worker who gave advice to Jewish refugees from Chechnya. Even a lawyer who gave free legal advice to his mother was disciplined under this law.
The Law on Legal Advice effectively overrides the citizen’s rights within the constitution.

The law was undoubtedly a reason why Michael Smith’s union refused to represent him at the tribunal hearing. It was also the reason why the industrial tribunal judge barred him from speaking when his replacement lawyer declined to speak up in court. “She went to extraordinary lengths to obliterate my comments, rewinding the tape of the proceedings to the point before my intervention,” Smith explains. “I believe that the questions I planned to ask would have helped win my case and the judge made it clear that I was to be kept out of the proceedings.”
   
The employer’s “defence” was that because he could walk some 300 metres to work, he did not qualify for shift payments. Some of his colleagues who also did not receive shift allowances lived up to 91 kilometres from work, which rather undermined the employer’s case.  The defence was fraudulent, as Smith explains: “The Ministry of Defence, almost one year after the judgment, outside of the period of appeal, stated in writing that where I lived had got nothing to do with his right to shift allowances. This proved to me that I had a strong case and that the tribunal had been wrong to allow the employer’s defence.”

Immediately after the ruling went against him, he lodged an appeal through another solicitor. This solicitor immediately accepted Smith as a client, then later backed out, giving no reason. It later transpired that this lawyer worked in co-operation with the firm of solicitor’s contracted to the Ministry of Defence in Germany.  By this time, Michael Smith had run out of time to organise an appeal. Efforts to get the European Court of Human Rights to take up the case have proved fruitless and he is still seeking arbitration.  

Michael Smith’s unemployment benefit is running out and he is facing the prospect of becoming homeless. He told A World to Win: “My struggle was to win the right to justice and a fair hearing. I knew the employer was desperate to dismiss me because I was not going to give up my right to be treated fairly and equally before the law. There were millions and millions of unpaid shift allowances at stake.

“The judgment was full of mistakes, contradictions and omissions from the contract and does not once mention the relevant law being contested. It was in effect tried under the Law on Legal Advice 13th December 1935 in its original meaning, which is never admitted in a judgment for obvious reasons. The authorities do not want this matter to go back into a court at all because of the consequences of their illegal actions at all times throughout the affair.

“The Nazi law on legal advice has been used to block my fight. When I told the army I would challenge the ruling on constitutional grounds, the right to resist, they trumped up a charge and sacked me. I stood up to defend the rights of myself and my colleagues. Now it’s turned into a fight for democratic rights to oppose the state in Germany and Britain. It would appear that the ordinary citizen has no right to legal representation and, human rights legislation applies only to the wealthy and criminals.”

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