"Non-Germans" Under the Third Reich (134 page)

48.
Directive of the deputy Führer of March 30, 1936, in Diehl-Thiele,
Partei und Staat im Dritten Reich
, 234 n. 77.

49.
RArbG,
JW
(1937): 2311. A negative value judgment by the NSDAP with regard to an employee did not relieve the court of the duty to reach its own judgment. However, the question of the legal authority of decisions reached by a Party body must be clearly separated from the question of the de facto importance that must attach to the view taken by the district leader. In the administration of justice, it had to be recognized “that unjustified reproaches, even unfounded suspicion on the part of the proper authorities, were of such gravity that by themselves they could give grounds for dismissal” (cf. also
Land
Labor Court, Munich, July 31, 1937,
DJ
[1937]: 1159).

50.
Regarding the character of the head of Department 1 (H. Nicolai) and other leading officials in the Reich Ministry of Justice, see Bracher, Sauer, and Schulz,
Die nationalsozialistische Machtergreifung
, 409 f., 412; and Diehl-Thiele,
Partei und Staat im Dritten Reich
, 57 n. 70; Mommsen,
Beamtentum im Dritten Reich
, 171 n. 1; regarding the character of the Reich minister and head of the Reich Chancellery, H. H. Lammers, the only lawyer on Hitler’s staff of whom the Führer spoke approvingly, see Bracher, Sauer, and Schulz,
Die nationalsozialistische Machtergreifung
, 409 ff., 583; Diehl-Thiele,
Partei und Staat im Dritten Reich
, 242 n. 96. For an account of the appointments to leading posts in the Reich Ministry of Justice, see a note from the Reich Ministry of Justice to the Reich propaganda minister of December 17, 1942 (BA R 22/20337), a note from the Reich Ministry of Justice on a discussion with RFSSuChddtPol on September 18, 1942 (BA R 22/4062); further details are in Nuremberg doc., NG-587; and Heiber, “Zur Justiz im Dritten Reich” (1955), 283, 296; a sworn affidavit by Dr. Joël of March 6, 1947 (Nuremberg doc., NG-915); Johe,
Die gleichgeschaltete Justiz
(1967), 233; notification of the Reich Ministry of Justice in
DJ
(1942): 551 and
DJ
(1943): 157 (also in Nuremberg doc., NG-643); Nuremberg docs., NG-413 and 525; letter from the head of SIPO and the SD to the Reich Ministry of Justice (BA R 22/1462, sheet 98); Bracher, Sauer, and Schulz,
Die nationalsozialistische Machtergreifung
, 526; Heiber, “Zur Justiz im Dritten Reich,” 275 ff.

51.
With a marginal comment from the Reich Cabinet councillor Leo Killy of the Reich Chancellery: “Where did he get them all from?” (BA R 43 II/421); the deployment of fellow Party members proved particularly problematic when—as was largely the case in the East of the Reich—they had no administrative experience; cf. also a note from the Reich Ministry of the Interior to RMuChdRkzlei of May 26, 1941 (BA R 43 II/1136 b), which says, inter alia: “of the Prussian
Landrat
offices, 62.75% [are] occupied by trained administrative officers, 5.75% by lawyers without training in administration, and 31.5% by unqualified persons…. In the non-Prussian
Länder
, 93.75% are trained administrative officers and only 6.25% are persons without training…. The results [of the initial restaffing of the
Landrat
offices in the Annexed Eastern Territories] is shocking…. Of the 63
Landrat
offices, 40 [were] filled by unqualified persons, some of them young Party members…. Almost half the staff had failed within 1½ years.”

52.
Up to January 30, 1933, only 30 of the approximately 7,000 Prussian judges were active members of the NSDAP (0.4%). For an account of the situation in the Cologne district State Superior Court, where most judges joined the Party under political duress at the end of April, see Wolfram and Klein,
Recht und Rechtspflege in den Rheinlanden
(1969), 218; Schorn,
Der Richter im Dritten Reich
(1959), 36 f.; for Hamburg, see Johe,
Die gleichgeschaltete Justiz
, 58 ff.

53.
A particularly good example is the Frankfurt district, where the Gauleiter, Jacob Sprenger, demanded that a judicial officer marry as a precondition for promotion (personal files, Chief Public Prosecutor, Frankfurt, Federal Ministry of Justice). Of course, the NSDAP influence was exerted above all on the leading posts, which were occupied exclusively by Party-approved candidates. For the appointment of the presiding judge of the State Superior Court and chief public prosecutor, it was necessary to have the approval of the Reich leadership of the NSDAP as well as that of the responsible Gauleitung (letter from State Secretary Freisler–Reich Ministry of Justice to Gauleiter Bracht [Upper Silesia] of March 22, 1941, with reply from Bracht on March 29, 1941 [personal files, presiding judge of State Superior Court Kattowitz (Katowice), Federal Justice Ministry]). Moreover—as is clear from the corresponding personal files—
all
personnel matters regarding judicial officers in the
Länder
were apparently discussed with the responsible Gauleiter, whose suggestions and complaints were largely taken into account. See also the next note.

54.
Cf., for example, a letter from the chief public prosecutor of Düsseldorf to the Reich Ministry of Justice dated September 18, 1937; also a memorandum from Reich Minister of Justice Thierack of December 10, 1942, about a visit by Gauleiter Grohé, Cologne (BA 22/4062), who wanted to have the presiding judge of State Superior Court, Cologne, and the chief public prosecutor and presiding judge of the State Court of Appeals in Aachen replaced; memorandum from Reich Minister of Justice Thierack of November 1942 regarding requests and complaints from the Gauleiter of the
Gaue
Franconia, Vienna, Hamburg, and Saxony about the replacement of members of the judiciary (BA 22/4062). In Frankfurt the Gauleiter campaigned for the removal of the chief public prosecutor, who had been appointed before 1932, with the result that he volunteered for retirement in 1944. (Where no source is given, see the sources detailed in note 79.) The removal of the presiding judge of State Superior Court, Nuremberg, Döbig, in 1943 was the result of pressure exerted by the Party. It was said that he was steeped in “stagnant ideas” and pursued an anti-NSDAP personnel policy (letter from the NSDAP’s legal adviser in Franconia to the deputy Gauleiter of Franconia on December 18, 1943, accompanied by a twenty-two-page “indictment” against Döbig [Nuremberg doc., NG-2167]; letter from the deputy Gauleiter of Franconia to the Reich Ministry of Justice on January 11, 1943, with postscript [Nuremberg doc., NG-2125]; memorandum from the State Superior Court presiding judge, Emmert [successor to Döbig], dated June 1, 1943 [Nuremberg doc., NG-2167]). For an account of the tension between the presiding judge of State Superior Court Rostock and the Gau leadership of Mecklenburg, see a note from Reich Minister of Justice Thierack dated November 6, 1942, according to which the Gauleiter had asked for the removal of the State Superior Court presiding judge. The arrangement made was that the candidate for the post put forward by the ministry should “present himself [!] to the Gauleiter” (BA R 22/4062). Regarding the pressure applied by the NSDAP on the chief public prosecutor of Frankfurt/Main, who had been in office since 1932, see the personal files of the chief public prosecutor of Frankfurt (Federal Ministry of Justice). For an account of the tensions between the Party and the judiciary in the Cologne district State Superior Court, see Wolfram and Klein,
Recht und Rechtspflege in den Rheinlanden
, 219 ff., 223, 236 f.

55.
Letter from the Moselland Gauleiter (G. Simon) to the Reich Ministry of Justice, dated December 9, 1942, concerning the Cologne district State Superior Court of which it was said that “an active and heartfelt National-Socialist personnel policy could not be expected” (BA R 22/281); reply from Reich Ministry of Justice of December 9, 1942, to the effect that for the time being all matters not essential to the war effort should be deferred (ibid.). A corresponding circular was sent out on June 16, 1943 (ibid.); cf. also Wolfram and Klein,
Recht und Rechtspflege in den Rheinlanden
, 219 ff., 223, 236 f.

56.
This was the home district of the Prussian minister of justice, H. Kerrl, a former
Justizobermeister
(ranking above
Justizmeister
, the lowest rank in the administration of the judiciary), who thoroughly purged the top echelons of all the courts. On July 25, 1933, the presiding judges of the
Länder
Courts (State Courts of Appeals) in Koblenz, Trier, Bonn, and Cologne were removed from their posts; the presiding judge of the State Superior Court–Court of Appeal (
Oberlandesgericht
) was transferred to the Prussian Supreme Court (
Kammergericht
) in Berlin. In principle, the top posts were reserved for “Old Campaigners,” though they were few in number. The new district court presiding judge in Bonn was a drunkard who lasted only a few days in the job; his successor was a Frankfurt lawyer. Several municipal court judges were promoted to presiding judge positions for political reasons (Wolfram and Klein,
Recht und Rechtspflege in den Rheinlanden
, 219 ff., 223).

57.
Cf. Reich Ministry of the Interior to RMuChdRkzlei, urgent communication (BA R 43 II/ 421, 421a).

58.
This is also underlined by the following overview of the religious affiliations of the State Superior Court presiding judges and chief public prosecutors.

59.
For more details, see Zunker, “Institutionengeschichte und Regierungslehre” (1975), 62; Köhler,
Lebenserinnerungen
(1964), 197. For example, the State Superior Court presiding judges and chief public prosecutors—as detailed in the sources given in note 79—had mostly been alumni of student fraternities (
Altherrenbünden
) or members of student (dueling) corps or societies, in some cases also of other groups on the right or extreme right of the political spectrum (of the State Superior Court presiding judges, 2 were members of the Pan-German League [Alldeutscher Verband], 1 of the Stahlhelm, 1 of the Deutschbund [the oldest
völkisch
association in Germany], 1 of the Deutschvölkischer Schutz- und Trutzbund, and 1 of the Nationalverband deutscher Offiziere [of which 1 chief state prosecutor was also a member]). Many top civil servants in the Reich Ministry of Justice and the Reich Ministry of the Interior had been members of the Deutschnationale Volkspartei (
DNVP
) before 1933; see notes 65 and 68 below.

60.
Statement of the former head of Hitler’s Presidential Chancellery, Secretary of State Otto Meißner, at his interrogation at the Nuremberg trial of lawyers, in Kempner,
Das Dritte Reich im Kreuzverhör
(1969), 166.

61.
Kübler, “Der deutsche Richter und das demokratische Gesetz” (1963), in particular 109 ff.

62.
Cf. Federal Supreme Court of April 30, 1968 (
NJW
[1968]: 1339, Rehse judgment), according to which the (independent) position of a career judge in the Third Reich could not be changed by any actual circumstances to the extent that the Court of General Sessions (which had condemned Rehse as associate judge of the former People’s Court [
Volksgerichtshof]
) assumes.

63.
Circular from the Reich Ministry of Justice dated November 14, 1935 (
DJ
[1935]: 1656).

64.
Kolbe,
Reichsgerichtspräsident Dr. Erwin Bumke
(1975), 221.

65.
For details of Reich Minister of Justice Franz Gürnter, who had been a member of the Deutschnationale Volkspartei and held office from 1932 to 1941, see Reitter,
Franz Gürtner
(1976); cf. also Kolbe,
Reichsgerichtspräsident Dr. Erwin Bumke
, 219; in 1933 some of the Reich Ministry of Justice departmental heads were also taken over (
Handbuch der Justizverwaltung
[1942], 23). According to Schneller, the former head of the Budget Department of the Reich Ministry of Justice, the following were dismissed from the Reich Ministry of Justice after 1933 on political grounds: 15 senior civil servants (
höhere Beamte
), 7 principal administrative officers (
Amtsräte
), 2 senior clerks (
Amtmänner
), and 2 inspectors (Nuremberg doc., NG-560).

66.
Reich Minister of Justice Thierack, who took up his office on August 20, 1942, as successor to Dr. Franz Gürnter (who died in January 1941), conducted wide-ranging purges. There are lists of staff changes with much accompanying detail in BA R 22/4378; numerous leading officials (State Superior Court presiding judges or chief public prosecutors) in top positions in the districts left the Reich Ministry of Justice through temporary retirement and pensioning off or transfer to the Reich Supreme Court. For biographies and further details on this subject and on the new appointees in the Reich Ministry of Justice, see Nuremberg doc., NG-413 (BA All. Proz. 1 XVII B 1, 24), 525, 587, 643, 915;
Handbuch der Justizverwaltung
, 166 (BA A VI R 9); letter from head of SIPO and SD to Reich Ministry of Justice (BA R 22/1462); note in
DJ
(1942): 551; Johe,
Die gleichgeschaltete Justiz
, 233; Heiber, “Zur Justiz im Dritten Reich,” 283, 296. Cf. also notes 76 and 77 below.

67.
Thus, Dr. Franz Gürtner, who became Reich minister of justice in 1932, remained in office because Hitler—as he said in 1942—had not found “anyone better”; Freisler was “a Bolshevik in his whole manner, and as far as the other one [meaning Secretary of State Schlegelberger] is concerned: he is just what he appears, and to look at him once is enough” (table talk on evening of March 29, 1942, quoted in Picker,
Hitlers Tischgespräche
[1968], 67).