"Non-Germans" Under the Third Reich (115 page)

b. Procedure

The procedure of the special courts was also based mainly on the model of the Reich,
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that is, the Code of Criminal Procedure and the specific provisions in the Special Courts Decree of March 21, 1933,
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and the Jurisdiction Decree of February 21, 1940);
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unlike substantive penal law, however, Reich legal procedural law was not to be instituted directly, but in principle only by analogy, unless the decree of November 15, 1939, provided otherwise.
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The purpose of these arrangements was to endow the special courts with considerably broader responsibilities than the regular courts and thus implicitly to broaden their jurisdiction over “non-German” offenders. They also provided for a rationalization of procedure, which could thus be implemented from the start, much earlier than in the Reich judiciary.
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In accordance with the principle of introducing a simpler court organization and procedure in the annexed and occupied territories than in the motherland,
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the organization was tightened up, the procedure simplified, and the position of the sole judge strengthened.

Thus, in contrast to the Reich regulations,
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the retrial procedure was not employed to transfer special-court proceedings to a regular court.
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A motion for retrial was decided upon not by the criminal division of the regular court, as was the case in the Reich,
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but by the special court itself,
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that is to say by the very court whose decision was contested.

The main difference between the special courts of the General Government and those of the Reich resided in the position of the sole judge. The relevant General Government regulations contained no explicit provisions on this point. Since the analogous application of procedural law offered great freedom to decide whether or not to apply the Reich norms, the sole judge, a legal entity designed for the court of first instance, was simply pasted onto special-court procedure. This was done not by way of the legislation but by the easier route of internal administrative regulations. The original implementing regulations issued by the Central Department of Justice provided for the jurisdiction of a single judge when the maximum sentence to be expected was six months’ imprisonment. With the coming into force of the Reich Jurisdiction Decree of February 21, 1940, which greatly enhanced the punitive power of district court judges, this change was carried over to the sole judge at the special court, whose position was “comparable to that of the district court judge.” This was manifestly false, however, since the right of appeal was available against judgments by the court of first instance but not against those of the special court. In the same way, the summary procedure before the district court judge (secs. 28 ff. of the Jurisdiction Decree of February 21, 1940) not only was carried over analogously to the special court procedure, but also was transferred to the special court judge,
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so that henceforth a single judge before a special court could pass sentences of up to two years’ hard labor and up to five years’ imprisonment in a summary trial.

Regulations on the issue of orders imposing punishment were a further move toward cost-saving and “technical rationalization” (O. Kirchheimer). Whereas under Reich law prison sentences of up to three months could be imposed by punishment order (and from September 1, 1939, up to six months),
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in the General Government the authority of the sole judge at the special court was extended to the issue of punishment orders for up to one year’s imprisonment or collection of a fine (secs. 8, 9 of the Decree on Special Courts of November 15, 1939).
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The year 1942 saw an amendment unique in the history of German law, when the Decree on the Simplification of Criminal Jurisdiction in the General Government of October 24, 1942,
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passed the authority to issue orders imposing punishment (sec. 5) to the chief German public prosecutor at the seat of the corresponding German court. Even in the Reich itself, public prosecutors had never been invested with such power, however much their authority had been extended. Only toward the end of the war, in December 1944, were they awarded this right in order to take pressure off the courts.
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The decree of October 24, 1942, was part of the policy of strengthening the position of the public prosecutor, as had also been attempted in the Eastern Territories, where the Reich governor of the Wartheland, Greiser, had pressed for such an arrangement (“The Poles don”t make any difference between a judge and a public prosecutor in any case”), but this demand was refused by the Ministry of Justice, which insisted on maintaining the authority of the judges. No such scruples existed in the independently administered General Government, and indeed the position of the public prosecutor was also enhanced in other respects. Thus, he was authorized to make an arrest in the course of preliminary proceedings even without an arrest warrant issued by a judge, and he had the right to pass penal matters “of lesser importance” to the Polish authorities (sec. 1, par. 1, and sec. 2, decree of October 24, 1942).

The other procedural provisions also diverged from Reich law. The defendant had the right to (court-appointed) counsel only insofar as this was “feasible” (sec. 6 of the Decree on Special Courts of November 15, 1939), whereas under Reich law such cases were clearly enumerated and defense counsel was always appointed if justified by the “seriousness of the act or the difficulty of the technical and legal situation” (compulsory representation, sec. 32 of the Jurisdiction Decree of February 21, 1940).

None of these procedural rules contained special provisions discriminating against “non-Germans,” in order to preserve the appearance of fair treatment of all suspects. It was nevertheless clear that the extensions of the special-court powers referred to were directed primarily against “non-Germans,” who constituted the great majority of arrests. Discriminatory law was also practiced by way of the established directives, as illustrated by the example of the defense of “non-Germans” before German courts given below.
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But the Special Courts Decree of November 15, 1939, nevertheless still provided “non-Germans” with a more or less orderly trial and certain legal rights. The procedure of the special courts in the General Government thus appear a model of moderation in contrast to the conditions reigning in the Annexed Eastern Territories. At the same time, it must not be forgotten that the most important field of criminal law, namely resistance against the occupying powers, had been taken out of the hands of the special courts and transferred to the military courts or the summary drumhead police courts. The basic Decree on Combating Acts of Violence in the General Government of October 31, 1939 (death sentence for all violent acts against “the German Reich,” German individuals, or German property [see below]),
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provided for transfer of a case to the public prosecutor at the competent special court only if its complexity or difficulties of obtaining evidence made it unsuited for judication by a summary police court (sec. 11, par. 2). The decision in this regard was at the discretion of the police court, and the extensive interpretation of the term
violent offense
by the SS and the police ensured that the special courts dealt only with cases of passing interest.

The jurisdiction of the special courts was thus limited to criminal cases passed over from the police courts or less serious offenses not covered by the Acts of Violence Decree of October 31, 1939 (for example anti-German remarks).
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Until 1942 political crimes that did not involve violence, such as high treason or espionage, fell within the purview of the Reich court-martial, not the special courts.
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The authorities of the General Government were not willing to accept this reduced competence, and in their desire for autonomy they made efforts to establish their own people’s court for such cases and to recruit a former assistant judge there as adviser. The justification given was the excessive caseload of the Reich court-martial. The plan was of course attacked by the justice administration of the Reich, and State Secretary Freisler above all spoke out against the proposal to establish a branch of the People’s Court in the General Government.
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The legal situation changed in 1942, however, and the Wehrmacht used its newfound authority to transfer more and more of these offenses to the special courts;
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finally they were dealt with centrally by the Special Court of Kraków.
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To summarize, the effective jurisdiction of the special courts was such that all nonpolitical offenses having a bearing on German interests, such as economic crimes (smuggling, black-market dealing, unauthorized sale of ration cards) and violations of the governor general’s decrees, were transferred to them;
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further purely criminal acts directed in any way against Germans or German institutions (e.g., blackmail, impersonation of an official) and moderate and serious criminal offenses came under the general clauses mentioned above.

2. Jurisdiction and Procedure of the “German Courts”

The German courts also existed for dealing with “non-German” crimes. Their jurisdiction was very limited and their role doubly subordinate, however, for the governor general’s crucial Decree on German Jurisdiction in the General Government of February 19, 1940,
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explicitly maintained the powers of both the summary police courts and the special courts (sec. 2, pars. 2, 3). The named responsibilities of the German courts were offenses committed “in a building, room, or installation serving the purposes of an official German agency” or “in the service of the German administration” (sec. 7, par. 2, subpars. 3, 4). The other competences were summarized in a general clause in sec. 7, par. 2, subpars. 1, 2):

This jurisdiction applies to other persons not already subject to German criminal jurisdiction under the terms of section 2 of the Decree on Special Courts in the General Government of November 15, 1939 (
VoBl. GGP
, p. 34), and who have committed offenses that

(1) are directed against the security and reputation of the German Reich and German people, its interests, and the life, health, honor, and property of German citizens and German nationals;

(2) are punishable under decrees issued by the governor general or under his authority.

The implications of these broad formulations are even greater than they appear, for in effect the German courts were competent to deal only with offenses of minor importance with no political impact and without interest for special-court proceedings, such as crimes by Poles and Jews among themselves or minor offenses such as violations of statutory closing hours, refusal to work, refusal to wear the yellow star, and so on.
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This was an omnibus clause intended to cover all offenses by “non-Germans” that could in some way harm German interests. Given the wide-ranging jurisdiction of the summary police courts and the special courts, however, the number of those offenses was inconsequential. Thus, few cases were dealt with by the German courts,
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which had a correspondingly simple structure and procedure.

Although in penal matters the special courts were to implement Reich procedural law analogously, provided no other provisions applied,
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the special rules set out in sections 10–15 and 26–28 of the decree of February 19, 1940, contained so many derogations that essential Reich principles were lost in the process. The exceptions referred to simplifications of procedure and a strengthening of the position of the sole judge. (The same exceptions applied to special-court procedure.) Thus, it was not obligatory for a representative of the public prosecutor to be present in criminal cases tried before the German court. In accordance with a decree issued by the Central Department of Justice on December 4, 1941, the Reich regulations on the summary procedure before the court of first instance were to be applied analogously by the German courts (as well as by the special courts).
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A decision by the German lower court could be contested only by an appeal against sentence or an interlocutory appeal to the German Superior Court (with a time limit of two weeks), which gave a final ruling. Recourse to an appeal on points of law was done away with “for the sake of simplicity.”
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Further simplifications were the inadmissibility of private prosecution, the abolition of the right to court-assigned defense, which was permitted “only insofar as feasible,” and finally the aforementioned extension of the authority of the public prosecutor, who as a result of the Simplification Decree of October 24, 1942, was also authorized to issue a summary punishment order of up to one year’s imprisonment by way of the regular procedure.
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The Simplification Decree of October 24, 1942, the advent of which coincided approximately with the first deportations of Jews from the ghettos of the General Government to the extermination camps, further introduced special procedural provisions that explicitly discriminated against “non-Germans,” valid also in the special courts. Thus, the swearing in of Jews as witnesses in criminal proceedings was proclaimed generally inadmissible earlier than in the Reich,
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so as to render their statements valueless. Notwithstanding sections 59 and 60 of the Code of Criminal Procedure, the German courts were further empowered to refuse to swear in a witness even if the defendant and the defense counsel (sec. 4) were not averse to it, a regulation that of course was also aimed at “non-Germans.” Particular simplifications were introduced for criminal proceedings against Jews who had been resettled by a decree from the Central Department of Justice dated August 21, 1942,
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promulgated precisely at the time of the first Jewish resettlements from Warsaw. Thus, an indictment could be waived in accordance with section 153a, paragraph 3, Code of Criminal Procedure,
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or subsequently dropped (it no longer being necessary in view of the imminent extermination of the accused). A Jew who was already in custody was to be handed over to the “competent authority,” the Security Police. Judgments were not to be executed, except for the death sentence.