"Non-Germans" Under the Third Reich (110 page)

(1) In the interpretation and application of the law applying in the Annexed Eastern Territories, attention must be paid to the special requirements resulting from assimilation into the German Reich.

(2) In the event that in individual instances, the application of a regulation would give rise to a result incompatible with the effect of assimilation, the regulation shall not be applied and a decision shall be taken that complies with the effect of assimilation.

Of course, this provision was principally intended for all litigation by Poles against Germans. The question the court had to examine first was the extent to which German law applied. The provision did not clarify matters but merely legalized the previous ambiguity, as there was no binding regulation governing occasions when a regulation complied with the “requirements of assimilation”; the consequence was that—as expounded in the literature—the German jurist had to bear within himself the “guiding principle of his activities,” namely, the unequal treatment of those seeking the protection of the law in accordance with the “ethnic way of life and legal system.”
⁴⁴
The next question was about how to proceed if German law did not apply. The provision in paragraph 2 provided something novel for this, by calling on judges to breach the law overtly if the application of a regulation was politically undesirable. Here, too, no binding standards were laid down. In the opinion of practitioners, the decision should be “drawn directly from the way of life of the German national community.”
⁴⁵

The provisions of section 4 can be viewed as an approximate counterpart to the conventional analogy. It differs from the analogy provision of section 2 of the Code of Criminal Procedure of 1935 in that the latter allows for the punishment of an offense under the terms of a penal regulation and on the basis of the “sound thinking of the people” in cases where a legal basis was
nonexistent
, whereas section 4, paragraph 2, of the Decree on the Civil Law in the East instructed the judge not to apply a fundamentally
applicable
regulation if it was incompatible with the “effect of assimilation.”

With regard to the general political line in the application of section 4, there was agreement that the German law implemented in the Annexed Eastern Territories should never have a detrimental effect on the Germans living there,
⁴⁶
which was nothing other than a paraphrasing of the unequal treatment of the “non-Germans.” Essentially, everything hinged on the “ethnic struggle,” which meant that “non-Germans” could not make use of German courts as a right, but only if this was “compatible … with ethnic interests.”
⁴⁷
In the examination of whether
any
legal protection or right to due process of law could be granted, citizenship and nationality therefore played a crucial role.
⁴⁸
Essentially, section 4, paragraph 2, of the Decree on the Civil Law in the East thus represented a charter for the judges to proceed at their own discretion without being bound to existing law: they were to declare prevailing law inapplicable in individual cases or generally (“on the basis of an interpretation of the law that takes the Nazi ideology into account”),
⁴⁹
so as to “maintain their freedom of action in the interpretation of the law after the coming into force of the Decree on the Civil Law in the East.”
⁵⁰

Nonetheless, because the “proven line” of the “ethnic struggle” was decided by the political leadership, only judges “who had made themselves conversant … with the aims and wishes of the political leadership” could develop “law-creating activities,” as an official of the Ministry of Justice stated.
⁵¹
As a judge at the Posen Court of Appeal remarked, this included “carefully following the events of the day (in other words, the practice of routine discrimination)”; they would then see how “regulatory duties and development concepts are put into practice.”
⁵²

However, the provisions of section 4, paragraph 2, of the Decree on the Civil Law in the East achieved general significance beyond their original area of application. They were understood to be a general principle and “authorization” to deviate from all provisions of the law to be applied in the Annexed Eastern Territories, depending on the needs of political expediency, an authority that had never before been granted to German judges.
⁵³
The justification for this, though, was more than banal: the decree of September 15, 1941, was entitled the Decree on the Civil Law in the East, so its fundamental principles applied to all fields of the law.
⁵⁴

b. Areas of Application of Section 4

No generalized assessment of the extent to which the courts made use of the interpretation potential of section 4 in their rulings can be reached using the few published sources available.
⁵⁵
However, a number of underlying trends are evident.

Not permitted, for instance, was the nonapplication of German regulations to Poles solely because they were Poles. In a December 4, 1942, ruling, the Posen Court of Appeal, for example, declared inadmissible a Wartheland court’s refusal to examine by way of juridical assistance a Polish defendant. The case involved a claim for child maintenance; the defense alleged that someone else had fathered the child. The lower court had denied the Pole this
Mehrverkehr
defense simply on the grounds that he was a Pole.
⁵⁶
However, German law was not to be applied if it would give Poles rights contradicting the “effect of assimilation” (the policy of discrimination). In addition, contradicting its wording, which related only to “individual instances,” its general significance meant that section 4, paragraph 2, was extensively interpreted in such a way that the courts could rule the nonapplication of German law to parallel or similar
groups
of individual instances.
⁵⁷
Moreover, numerous discriminatory regulations under written law in the First Implementing Regulation to the Decree on the Civil Law in the East were viewed in the prevailing opinion as being merely an expression of the concepts contained in section 4 and thus also subjected to extensive interpretation.
⁵⁸

One particularly important area where discrimination was practiced on the basis of section 4 was marriage and family law, where Reich law applied, but with substantial variations.

In the law of matrimonial property, the former Polish matrimonial regime was not continued, although under German law for marriages of foreigners (and stateless persons of equivalent status) resident in Germany (in the opinion of the Germans, this applied to the Poles), the law of the native country of the husband was decisive (sec. 15, Introductory Law to the Civil Code), and for all marriages before January 1, 1900, the law prevailing at the time applied (sec. 200, Introductory Law to the Civil Code).
⁵⁹
According to the literature, an examination must be made of each individual case to determine whether German marriage and family law did not offer “unjustified advantages” to the Polish petitioners.
⁶⁰
One expression of this ethnically and racially biased examination was that the marriage license (certificate of nonimpediment to marriage under sec. 14 of the Marriage Law) to be supplied by all “non-Germans” was based on Polish, not German law, since the German racial regulations applied only to the German people.
⁶¹
The defense of
Mehrverkehr
in child-support actions for illegitimate children was not permitted to Polish defendants (counter to sec. 1717 of the Civil Code), because there was a German interest in establishing a “paying father” as quickly as possible so that the child did not become a burden on the German public relief agencies.
⁶²

An important role was played by German-Polish marriages (“mixed-nationality marriages”), which were seriously undesirable “from the point of view of ethnic policy,” with their divorce receiving special support from the government.
⁶³
In line with the divorce policy for German-Jewish “mixed marriages,” not only was a mistake about the nationality of the defending spouse recognized as grounds for nullity within the meaning of section 37 of the Marriage Law of July 6, 1938 (mistake as to a personal characteristic of the spouse), but also a mistake about the “genuine
meaning
of nationality.”
⁶⁴
A further ground for divorce recognized in some instances was the pro-Polish conduct of the defending spouse.
⁶⁵
Particularly in marriage law, where racial aspects were most strongly affected, the political condition of section 4 of the Decree on the Civil Law in the East was interpreted in the relevant literature as a form of
lex specialis
, to which all “special regulations” of German law had to yield.
⁶⁶
A result of this was that impediments to marriage “for political aspects, including those to be observed by the courts,” such as an increase in the marriageable age for Poles in order to depress the birthrate, were regarded as quite permissible: for the same reason, the grounds for nullification and divorce in the Marriage Law could not be transferred to “non-German marriages” straightforwardly. The argument stated was that these provisions were designed only for German marriages, for instance, nullity on the grounds of infertility or sterility (secs. 37, 53, 55, Marriage Law); Polish divorces on these grounds were therefore out of the question.
⁶⁷

Another example of special-law practices differing from Reich law is the treatment of Polish associations, to which the provisions of sections 21 ff. of the Civil Code should have applied. Under section 3, paragraph 1, of the Implementing Regulation, associations with legal status under Polish association law lost their legal status (if they had not already been dissolved)
⁶⁸
if they had not successfully applied for registration in the register of associations by October 1, 1942. Of course, there was no right of registration, because the freedom to form an association had been abolished in the entire territory of the Reich for the protection of the people and the state by a decree of the Reich president of February 28, 1933.
⁶⁹
Registration was therefore at the “dutiful discretion” of the authorities. However, this was merely a sham formula: an application by a Polish association was always to be rejected because, as explained in the comments in the First Implementing Regulation, no further cooperative activities by Poles could be tolerated. This would contradict not only the effect of assimilation under section 4 of the Decree on the Civil Law in the East but also the legal situation in the Reich, where any activities by Polish organizations were forbidden (Decree on the Organization of the Polish Ethnic Groups in the German Reich of February 27, 1940);
⁷⁰
this applied all the more to the Annexed Eastern Territories.
⁷¹
The principle of the extinction of all Polish association activities applied to all associations and clubs, not merely political societies, although sections 61 ff. of the Civil Code did not exclude nonpolitical association activities.
⁷²
Of course, these principles applied with even greater force to Jewish associations.
⁷³
The admission of Poles into associations already registered also had to be prevented, since “it was obvious that the admission of Polish protected-status subjects and stateless Poles to an association must be condemned in view of the way of overall life and legal status in the Annexed Eastern Territories of Polish protected-status subjects in a stateless Poland”; if necessary, came the recommendation, the police could do “what was necessary”
⁷⁴
[arrest those involved—Author]. Further recommendations by judicial practitioners (to the administrative authorities) were that in the case of new associations being formed, a provision should be included in the statutes whereby the association would admit only German members and that the admission of “non-German” members was forbidden.
⁷⁵

In conclusion, it can be established that in the Annexed Eastern Territories, the courts applied discriminatory provisions under special law by invoking the political condition of section 4 of the Decree on the Civil Law in the East with relative consistency in those areas dominated by racial ideologies, such as family and marriage law, or in which discrimination was written into the law. Apart from this, the judicial authorities were probably relatively restrained in the application of section 4, because direct release from the constraints of the law was a most unfamiliar situation for modern German law. It should be assumed that in line with their traditions, judges preferred to tread an indirect course, achieving the desired result by the expansive or restrictive
interpretation
of the law, rather than resorting to the provisions of section 4, difficult to grasp in legal terms as they were.

2. Procedural Law

A second category of principles in the Decree on the Civil Law in the East had a crucial effect on increasing the discrimination against “non-Germans.” Whereas section 4 related to changes in
substantive
law, once the trial was already pending before the court, these principles hinged around the question of whether Poles were entitled to any protection of law whatsoever in German courts.