"Non-Germans" Under the Third Reich (241 page)

12.
Spohr,
Das Recht der Schutzhaft
, 67, with references; Prussian Supreme Administrative Court, 97, 103; 99, 85; 103, 137; Supreme Administrative Court, Hamburg,
JW
(1937): 3335; Maunz,
Gestalt und Recht der Polizei
, 48 ff., 51 ff; Neubert, “Die Schranken richterlichen Prüfungsrechts” (1933); Lüdtke, “Die Schutzhaft gemäß der VO vom 28. 3. 1933,” 2241; see also the references in note 9 above.

13.
See the example given in Fraenkel,
Der Doppelstaat
(1974), 246b.

14.
Full details in Weinkauff and Wagner,
Die deutsche Justiz
, 143 ff.

15.
Cf. Schlegelberger’s statements at the Nuremberg Judiciary Trials (III), 4325 f. (see note 1 above); Schlegelberger also spoke of other arbitrary orders by Hitler. Between September 1939 and Schlegelberger’s resignation on August 20, 1942, alone, Hitler
personally
had subsequently “corrected” at least 25 to 30 indefeasible judgments in this manner, quite apart from the
advance
execution of alleged criminals (affidavit by Hitler’s adjutant, Schaub, and Schlegelberger’s personal adviser, Dr. Hans Gramm, Nuremberg docs. NG-5263, NG-4798). With regard to the judicial foundation for the Führer’s right to veto any court decision, see R. Freisler,
DJ
(1939): 1565 ff. (1570) and 1597 ff. (1598).

16.
More details in M. Broszat, “Nationalsozialistische Konzentrationslager” (1965), 107, 109; see also the situation reports of February 3, 1940; August 3, 24, 1942, by the chief public prosecutor, Bamberg (BA R 22/3365); the situation report of July 7, 1942, by the chief public prosecutor of Hamm (Nuremberg doc. NG-395); the situation reports of July 31, 1940; May 31, December 1, 1941, by the chief public prosecutor of Celle (quoted in
VjhZ
[1958]: 452 ff.); situation report of March 10, 1942, by the presiding judge of the Brunswick Court of Appeal (BA R 22/3357); situation report of March 28, 1940, by the presiding judge of the Hamburg Court of Appeal (BA R 22/3366).

17.
Situation report of January 27, 1942, by the chief public prosecutor to the Prussian Supreme Court, Berlin; report of November 18, 1941, by the president of the Hamburg District Court (
Landgericht
) to the presiding judges of the Hamburg Courts of Appeal (both quoted in Johe,
Die gleichgeschaltete Justiz
[1967], 167).

18.
See the collection of documents from Hamburg of November 1939, according to which there was a growing number of killings on escape or “against resistance” (quoted in ibid., 158 ff.). Weinkauff and Wagner,
Die deutsche Justiz
, 125, are somewhat more reserved. According to a Reich Ministry of Justice register dated September 28, 1939 (Nuremberg doc. NG-190), also reproduced in Broszat, “Zur Perversion der Strafjustiz” (1958) (Doc. 6 B), in the period from September 6, 1939, to January 20, 1940, alone, that is, in less than five months, a total of 18 people were shot by the police, either before their trial or following their conviction by the special court, at the order of Hitler, the RFSS, or the head of the Security Police. After 1942 the number of executions of prisoners of justice increased sharply; the reports to the Reich minister of justice by the presiding judges of the courts of appeal and the chief public prosecutors are full of complaints of encroachments on the part of the Gestapo (Weinkauff and Wagner,
Die deutsche Justiz
, 144, 156, with references). In February 1942, 11 people accused of “suppression of evidence” (i.e., looting) were shot by the police without trial on a single day (
Völkischer Beobachter
, February 16, 17, 1942, quoted in the situation report by the chief public prosecutor, Hamm, of February 27, 1942, Nuremberg doc. NG-395a, reproduced in
VjhZ
[1958]: 435 f.).

19.
Speech by Ohlendorf to SD personnel, circulated to all the relevant offices of the Security Police and Security Service in the form of “instructions for operations in the domain of the law” (BA R 22/990).

20.
An example is a case of unlawful slaughtering in which the special court at Leitmeritz (Litom
ice) had condemned a woman, Irene von E., to four months’ imprisonment. She was apparently arrested by the Gestapo before pronouncement of the verdict. A memorandum dated January 6, 1942, from the Reich Ministry of Justice reporting a discussion with the head of the Security Police noted that the latter would ensure that the files of the Dresden Stapo requested by the Reich Ministry of Justice would be made available (BA R 22/4062).

21.
Cf. the letter of April 28, 1942, from the senior public prosecutor, Seidel, in Hamburg, to the Reich Ministry of Justice (quoted in Johe,
Die gleichgeschaltete Justiz
, 168 f.), reporting a decision by the Special Court of Bremen in which the accused was condemned to fifteen years’ penitentiary in opposition to the public prosecutor’s demand. The head of the criminal police office in Bremen had advised him to exert his influence to have the sentence commuted by way of a plea of nullity; “otherwise action might possibly be taken in another place.” The threat was successful, as the sender himself lodged a recommendation for a plea of nullity: “Before the execution K. is still needed to serve as a witness.” In a letter dated May 14, 1942, the head of the criminal police headquarters in Hamburg informed the presiding judge of the Hamburg Court of Appeal that a judgment by the Hamburg Special Court in which a man had been convicted of looting should be revised to one of petty larceny: the court too “would agree.” A plea of nullity was therefore entered with the Reich attorney general (quoted in ibid., 169).

22.
Letter dated October 22, 1942, from the head of the Security Police and Security Service to the Party Chancellery (BA R 22/4203).

23.
Letter dated January 19, 1943, from the SS judge at the RFSS, Munder, to State Secretary Rothenberger (Nuremberg doc. NG-439). Johe,
Die gleichgeschaltete Justiz
, 169, is not so clear about this, referring to this letter and stating that Himmler made no such concession to Rothenberger, since only Hitler decided on executions and publication.

24.
Instruction from the RFSSuChddtPol to all Gestapo posts, January 6, 1943 (ZS, G.J. No. 117, 261; copy).

25.
Regarding the personality of Reich Minister of Justice Gürtner, who, until his death in 1941, did his best to avoid direct confrontation between the ministry and the police (especially its directorate), see Reitter,
Franz Gürtner
(1976).

26.
Memorandum of January 24, 1939, from the Reich Ministry of Justice (Klemm) on a discussion with the presiding judge of the Court of Appeal in Berlin on that day (Nuremberg doc. NG-366) (full details in Johe,
Die gleichgeschaltete Justiz
, 163 ff.).

27.
“No discord” was, e.g., an expression used by the presiding judge of the Graz Court of Appeal at a meeting of chief presidents on January 24, 1939, in Berlin; see the report of January 24, 1939, from the Düsseldorf Court of Appeal district (“good understanding” between the committing magistrates and the Gestapo); memorandum of January 24, 1939, on the meeting of the presiding judges of the courts of appeal in Berlin (see note 26 above). The chief public prosecutor of Posen (Pozna
), Drendel, spoke of “close cooperation and trust with the Security Police” (
Ostdeutscher Beobachter
, June 24, 1939); report of July 4, 1941, by the president of the Hamburg District Court to the Reich Ministry of Justice (Johe,
Die gleichgeschaltete Justiz
, 166).

28.
See the letter of November 30, 1939, from the Reich Ministry of Justice to the RFSSuChddtPol (Nuremberg doc. NG-190), also reproduced in Broszat, “Zur Perversion der Strafjustiz,” 411 ff.).

29.
Minutes of a meeting of the presiding judges of the Hamburg courts on February 1, 1939, quoted by Johe,
Die gleichgeschaltete Justiz
, 160.

30.
Spohr,
Das Recht der Schutzhaft
, 67, with numerous references; Supreme Administrative Court, Hamburg,
JW
(1937): 3335.

31.
Cf. the memorandum of January 24, 1939 (see also note 26 above), from the Reich Ministry of Justice on a meeting of chief public prosecutors on January 23, 1939, in Berlin, at which Gürtner responded to complaints from the various districts about the countless number of people in protective custody, saying that he regretted the cases in which protective custody could be regarded “as justified criticism” of the judiciary and that nothing could be done about preventive measures.

32.
Instruction of July 7, 1939 (BA R 22/1421); it was only possible to keep people temporarily; regarding enforcement, not the enforcement provisions of the judiciary, but police instructions were applied.

33.
Report from the court of appeal districts of Düsseldorf and Naumburg; quoted in the memorandum of January 24, 1939, from the Reich Ministry of Justice on a meeting of chief public prosecutors on January 23, 1939, in Berlin (see note 26 above).

34.
Report from the court of appeal districts of Düsseldorf and Graz; quoted in the Reich Ministry of Justice memorandum of January 24, 1939 (see note 26 above).

35.
Memorandum of January 24, 1939, from the Reich Ministry of Justice (see note 26 above); the Reich Ministry of Justice recommended that the gathered presiding judges of the courts of appeal “cultivate” connections with the Gestapo.

36.
Johe,
Die gleichgeschaltete Justiz
, 165 f., with examples.

37.
Report of July 4, 1941, by the presiding judge of the Hamburg District Court, quoted in ibid., 166.

38.
See the corresponding instruction of June 23, 1938, from the local Gestapo headquarters, Karlsruhe, to subordinate departments (BA R 22/1463).

39.
Circular decree of May 28, 1937, by the Reich Ministry of Justice (BA R 22/1462).

40.
The suggestion was made at a meeting of chief public prosecutors of June 28, 1937, in Berlin; see the chief public prosecutors’ point of view on the circular decree of May 28, 1937, at the meeting (BA R 22/1462).

41.
This was Dr. Joël, said to be a school friend of Freisler’s, who was later taken into Security Service headquarters and was rapidly promoted through the ranks. In 1943 the RSHA attested that he had collaborated with the Security Police “in a particularly close and fruitful manner” and had clearly worked in the interests of the RSHA; data will be found in the SS personnel files on Joël (Nuremberg doc. NG-747) and his personnel files in the ministry (NG-587); for the personality of Joël, see H. Heiber, “Der Fall Eliáš,”
VjhZ
(1955): 275 ff., 283, 296.

42.
Administrative instructions of August 3, 1942, from the Reich Ministry of Justice (
DJ
[1942]: 521); in organizational terms, the instruction required that correspondence between the SD and the Reich Ministry of Justice pass exclusively via the head of the Security Police and Security Service, and that between the SD and the other judicial authorities was to pass exclusively via regional SD headquarters.