"Non-Germans" Under the Third Reich (111 page)

a. Rejection of Polish Claims on the Basis of “General Legal Principles”

Because of Poles’ fundamental inequality in law, the most important
unwritten
basic concept of procedural law was that Poles (“protected-status subjects” or stateless persons) had no automatic right to due process of law in the courts and were only allowed to bring any action under the strictest conditions. Such permission was not to be granted whenever political reasons did not preclude it but, as the head of the Security Police and the Security Service explained to the head of the Party Chancellery, only if due process of law was necessary in the German interest.
⁷⁶
In other words, this involved a certain extension—affecting particular persons—to the material political condition of section 4 of the Decree on the Civil Law in the East. This unwritten legal principle was derived in part from general “legal principles” and in part directly from section 4, with the aim of enforcing the slowly emerging “aliens law” for Poles in the field of civil law,
⁷⁷
as was openly expounded in the literature.
⁷⁸
This principle was therefore based on an equally unwritten condition: that there was initially a presumption opposing the granting of due process of law to eligible Poles. To clarify the question of whether German interests “demanded” that the proceedings be conducted, two strategies were formulated to provide a preliminary examination—or “filter”—of suits filed by Poles.

In all civil proceedings (including noncontentious proceedings) in which Poles were involved, an examination was first to be made as to whether the granting of a right to due process of law, that is, the admission of the suit, was in accordance with “German interests,” as described by the commentaries of the practitioners (judges in the Eastern Territories) on the Decree on the Civil Law in the East. For litigation involving only Poles, it can be assumed that such an interest was normally denied. In such cases, the petitioner or claimant was given verbal notice of rejection.
⁷⁹
A German interest was to be approved
as an exception
in litigation involving Poles if the granting of the right to due process of law served to “retain the working capacity of the Pole in the interests of the German Reich”
⁸⁰
or if other German interests were affected. In contrast, a German interest in a lawsuit filed by a Pole was to be denied if Poles enforced claims that were aimed against the legal position of a German. On the basis of section 4 of the Decree on the Civil Law in the East, claims in such cases that were “substantiated under procedural law, but materially [meaning politically] unsubstantiated” should be capable of being rejected “automatically” “in this way.”
⁸¹

b. The Principle of Political Reservation toward Claims by Polish Nationals (Sec. 5)

For those cases whose “conduct” could “
not be prevented
” (my emphasis) solely on the basis of the umbrella clause (sec. 4), the special additional provision of section 5 of the Decree on the Civil Law in the East was created as an omnibus provision to prevent any lawsuits filed by Poles from reaching the courts. This provision represents the procedural counterpart to section 4 and epitomizes the now familiar compromise between the judicial authorities and the Party with regard to the political right of preliminary examination of claims by Poles. In cases in which a suit by a Pole was not inadmissible in any case due to a lack of “German interest,” section 5 provided for a general right of control by the responsible appeal court presidents:

(1) In the event that a claim is enforced or any other application is made against a German state subject that contests the legal position of a German state subject or an ethnic German in the course of litigation instigated by a protected-status subject of Polish nationality or a stateless Pole, and in the event that the court has reservations about whether the conduct of the proceedings might be at variance with state or ethnic concerns, the court must obtain an decision from the president of the court of appeal. This decision shall bind the court and cannot be challenged. In the event that the president of the court of appeal declares that the conduct of the proceedings is at variance with state or ethnic concerns, the proceedings shall be discontinued where they are affected by the decision.
⁸²
At the request of the president of the court of appeal, the court shall issue an interim order on the enforcement of any decision ruling already taken. Until the decision is received, the court may take only such measures as permit no stay of proceedings. It may issue orders necessary for the ruling.

(2) Instead of making the decision himself, the president of the court of appeal may obtain from the Gauleiter and
Reichsstatthalter
(or from the Gauleiter and higher district president in those areas where no
Reichsstatthalter
has been appointed) a statement specifying whether the proceedings are at variance with state or ethnic concerns. Paragraph 1, sentences 3–6, apply correspondingly.
⁸³

The concept of “state or ethnic concerns” in section 5 was worded in much broader terms here than the concept of “German interests” in the section just before this one (a. “Rejection of Polish Claims on the Basis of ‘General Legal Principles’ ”). Whereas the latter was based on
practical
considerations (e.g., of a financial nature), as described in the examples above, the former related to
political
decisions of all kinds, to bring the judicial authorities in line with the general political policy, which was to be practiced—without consideration for individual cases and the will of those involved—not by the judge but by the responsible senior bureaucrat, who acted in this instance not as an organ of justice but as an organ of the political leadership.

Nothing would have prevented transferring such preliminary examinations to the individual courts, whose “activities in creating law” were praised to the skies so frequently in official statements. But these were mere phrases without any practical effect. When it came to making political decisions, the courts often had no say whatsoever; rather, the decisions were centralized in the hands of the responsible appeal court presidents, who at that time were political civil servants in the real sense of the word.

This centralization was justified with the cynical argument—but one quite appropriate to the situation—that the interpretation of the concepts of “state or ethnic concerns” could not be left to the courts because the question of whether the enforcement of a claim by a Pole was politically “tolerable” or not “regularly exceeded the potential awareness of the individual judge,”
⁸⁴
who “was not always aware of the political line being followed by the leadership”;
⁸⁵
the “central authorities” were in a better position to have a clear view of the “political requirements.”
⁸⁶
In other words, whereas the courts (either on the basis of general principles or on the basis of section 4 of the Decree on the Civil Law in the East) could decide independently whether the lawsuit of a Pole was at all in “German interests,” section 5 of the decree covered cases in which such interests could be established but where such a lawsuit would offend “state or ethnic concerns,” taking account of the legal concept (already contained in the Law on the Participation of the Public Prosecutor in Civil Law Matters of July 15, 1941)
⁸⁷
that “the political leadership must be assured a possibility to influence court rulings in individual cases … notwithstanding the fundamental position of the judge.”
⁸⁸
Proceedings were regulated as follows.

If the court was convinced from the outset that the pursuance of a claim by a Pole against a German would offend “state or ethnic concerns,” the suit was to be rejected at that time as inadmissible on the basis of the general political condition explained above.
⁸⁹
Section 5 was applied only if the court had reservations about the conduct of the proceedings but considered them generally admissible. In such cases, the matter was to be submitted for a decision. If the appeal court president established no violation of “state or ethnic concerns,” the proceedings were continued.
⁹⁰
If he established such a violation, the proceedings were regarded as suspended (secs. 293 ff., Code of Civil Procedure) in terms of procedural law but de facto as unfounded, that is, as “settled.”
⁹¹
The matter was simpler if a Pole was enforcing a claim by way of defense (setoff, contestation) or objection (e.g., right of retention); where they violated “ethnic concerns,” defenses or objections were not considered in the ruling of the court (sec. 43, First Implementing Regulation).

c. The Principle of Political Reservation for the Recognition of Decisions by Polish Courts and for Their Enforcement

Although as regards individual claims, it had now been “expressed in law for the first time that Poles are not equal to Germans in the field of civil law,” thus preparing the way for the “emergence of aliens law for Poles,”
⁹²
this inequality corresponded to the provisions for the recognition of rulings by
Polish courts
contained in sections 42 ff. of the First Implementing Regulation to the Decree on the Civil Law in the East. The fundamental principle involved was that on the one hand, proceedings that had ended in a final and conclusive ruling should be left as they were, but on the other, ethnic Germans should be protected “from litigation based on unjust Polish judgements.”
⁹³

The extent to which the courts in the Annexed Eastern Territories made use of the possibility of political preliminary examination of suits by Polish claimants or of former decisions by Polish courts (if they did so at all) can only be surmised, since no relevant decisions were published in the general literature. This is no doubt because under section 5 of the Decree on the Civil Law in the East, neither relevant submissions at the appeal court presidents’ offices nor the decision of the appeal court president were announced publicly. The question of the treatment of Polish rulings was probably also of little interest to the wider judicial public.

To sum up, it may be assumed with some certainty that in the field of civil law, judges were allowed numerous facilities for ensuring inequality and arbitrary decisions but that this probably had a less detrimental effect on the Poles than in the field of penal law. The administration of penal justice was subject to stricter controls by the judicial administration than was the administration of civil law. In addition, the boundless special umbrella clauses of the Decree on Penal Law for Poles were almost exclusively decisive in the “penal law for alien peoples,” with the provisions of Reich law having only a subsidiary relevance,
⁹⁴
whereas under the Decree on the Civil Law in the East, all provisions of civil law were essentially implemented, and in formal terms, special-law elements were introduced only in part. Despite the political clauses of the Decree on the Civil Law in the East, the need for the judge to examine each civil law regulation of Reich law for its compatibility with the “effect of assimilation” (sec. 4, par. 1) must have had a certain restraining or inhibitory effect. This did not, of course, eliminate arbitrary and unjust decisions, but it did prevent
universal
special-law practices by the courts, controlled from above. The fact that the right of political preliminary examination under section 5 did not provide for a examination of the compatibility of lawsuits by Polish claimants with “ethnic concerns,” which was generalized by categories of cases, but instead—formally—a separate examination of each individual case, kept the
direct
influence of central political agencies at a distance and allowed the courts substantial freedom of choice. It was up to them to grant or deny Polish claimants the due process of law. In contrast to penal law, the invoking of “recommendations” or “principles” of the judicial administration to avoid taking responsibility for decisions was not possible here, or certainly not to the same extent. The same applied for the provision of section 4, paragraph 2, of the Decree on the Civil Law in the East, under which the application of a civil law regulation could only be departed from “in individual instances”; even if this provision opened up numerous possibilities for practicing special law, it can be assumed that in overall terms court rulings did not reflect the
centrally
controlled, universally anti-Polish line in every single decision.

Section Three

The Implementation of Völkisch Inequality in the General Government

INTRODUCTION

Main Contours of the Legal Policy: Continuation of Domestic Law and Primacy of the German Supervisory Authority

The conditions in the General Government contrast strongly in several respects with the extreme form of discriminatory legislation as practiced in the Annexed Eastern Territories. Although the principle of
völkisch
inequality remained the unquestioned maxim of the judicial administration in the General Government, as elsewhere, the political aims underlying its implementation were fundamentally different. In the Annexed Eastern Territories, discriminatory legislation was used both to segregate “non-Germans” from the German population and to bring about their total disfranchisement; in the General Government, the major aim of the legal policy, as set out in the official report on development in the General Government, was the segregation and encapsulation of Germans and “non-Germans,”
¹
in line with the idea of a minority German ruling class in the colonial
Ostraum
.
²
Accordingly, in this first attempt at German judicial administration “in alien territory,”
³
the most important principle was to ensure that German law and German jurisdiction should benefit the Germans living there. No German should have to come before a “non-German court”; Germans were entitled to German justice.
⁴
The segregation concept not only served technical ends, but of course it was also used for propaganda purposes: the German courts became the platform from which the privileged position of the German master class could be proclaimed. The privileges were not limited to jurisdiction but extended also to procedure and the execution of sentences.
⁵