"Non-Germans" Under the Third Reich (81 page)

After the passing of the Decree on Penal Law for Poles, however, the constant pressures (control measures) on the part of the ministry (directives, “recommendations,” obligation to report, previews and reviews, etc.,)
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began in early 1942 to bear fruit, even though central control of the administration of justice can only have been partially successful on account of the reticence on the part of the judges.
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Later, the pressure became more overt, and during the Thierack era it was further directed at the courts, employing all means to gain complete control of the judiciary. The spring and summer of 1942 can generally be regarded as something of a transition period, for by then at the latest the political prestige of the justice branch was at its lowest ebb. Given the “crisis of justice” brought about by Hitler’s sharp Reichstag speech of April 26, 1942, the judiciary was fighting to retain its public image and its own self-assurance and was struggling to demonstrate its toughness by dint of greater zeal.
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With Schlegelberger’s appeal to the judiciary to “fully integrate with the National Socialist state,”
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the general discriminatory treatment of “non-Germans” was finally endorsed from on high.

Thus, what would normally have been classed as standard offenses were now regularly regarded as serious when they were committed by Jews, with accordingly harsher penalties. State Secretary Schlegelberger, at this time charged with the office of the minister justice after Gürtner’s death in January 1941, exhorted the courts in the strongest terms to always administer “exemplary punishment” to Jews.
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The same was true for the treatment of “non-German” “habitual criminals” and asocial individuals, in that Hitler, and consequently the justice administration too, had always called for “ merciless severity” toward these social groups,
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and so much more so if they were of “ alien race.” Now the individual circumstances of the event were no longer a consideration, since only the principle of “extirpation” from the
Volksgemeinschaft
held good. When the police murdered a polish woman who was not criminally responsible, the only basis the Reich minister of justice in office, State Secretary Schlegelberger, could find to criticize the action of the police was that the judiciary was already sufficiently tough.

In a letter to Himmler as
Reichsführer
-SS and chief of the German police dated June 13, 1942,
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Schlegelberger stated that the courts no longer considered the individual aspects of the offense in their judgments but basically adhered to the objective principle, that is, protection of the
Volksgemeinschaft
from its enemies; therefore, under the terms of section 51 of the Penal Code, they condemned to death offenders who were not criminally responsible or were only partly criminally responsible, because such offenders (so-called psychopaths) were “eligible for death” and a reduction of the sentence could not be considered. The courts acted in this way since the promulgation of the Decree on Penal Law for Poles, so that no intervention by the police was necessary.

Consequently, from the middle of 1942, a great number of extremely stringent sentences were passed, many of which are on record through having been discussed in the
Richterbriefe,
first published by the Reich minister of justice in October 1942.
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Thierack, the former president of the People’s Court, had through a systematic personnel policy created the basis for strict implementation of the will of the political leadership, and after he came into office on February 20, 1942, the persecution of “non-Germans” became even more consistent,
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It is enough to say that in fields in which the jurisdiction already proceeded extremely strongly against Germans,
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it was carried to excess in the case of ‘non-Germans.”
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Thus, certain judgments in the field of so-called political penal law, which was dealt with centrally by the Reich Ministry of Justice,
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and in war criminal law, even went beyond the harshness demanded by the justice administration, because the order of the day was unlimited interpretation of the law and imposition of the death sentence whenever possible for its deterrent effect. Nonetheless, sentences have come down in which a balance was sought between the seriousness of the act and the punishment inflicted and which, as we have seen, were criticized by the ministry as being completely inadequate.
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This vacillation in the administration of justice reflects the uncertainty of the judiciary regarding the (special) treatment of “non-German” defendants, since the innumerable directives, recommendations, and instructions from above referred only to specific problems; the most important questions, such as the usurping of the Decree on Penal Law for Poles by the police or the relationship between that decree and general German penal law, were hardly touched upon, let alone clarified. But this same lack of clarity made it possible for judges with legal scruples to undermine the terror in relative safety.

III. The Situation of “Non-Germans” in Procedural Law

It is more difficult to prove discriminatory practices against “non-German” defendants in procedural law than in material penal law, because the characteristic of the former as
jus cogens
(strict law) runs counter to such discrimination.

1. The Tightening Up of the Technical Jurisdiction Regulations (Discriminatory Jurisdiction)

A basis for discriminatory practices already existed, however, in the fact that the public prosecutor had relatively broad freedom in the legal classification of offenses at the time of the indictment, so that with the change in the competence of the court before which the case was to come, there was also a change toward stricter procedural practice: minor offenses were advanced to the status of criminal offenses; minor trials were conducted by the district court rather than the local court; cases of some importance were dealt with by the special courts,
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which during the war had become the main instrument for the administration of justice and were above all responsible for the adjudication of “non-German” defendants.
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There is no evidence of direct discrimination against “non-German” in procedural law in the court decisions published during the early years of the Third Reich; the practice became apparent only with the tightening up of the legislation concerning Jews from 1938–39 onward. Thus, for example, in a judgment passed in 1939, the Reich Supreme Court ruled that the removal of a Jew from the courtroom did not constitute a violation of the principle of the public nature of the hearing, since such an action by the presiding judge contributed to maintaining order in court.
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The literature began to contain discussions whether Jews should be allowed to benefit at all from the procedural regulations in favor of the defendant; the real purpose of criminal procedure, it was claimed, was to punish Jews, not to provide advantages for them.
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When the competence of the various courts was in doubt, it was argued that such conflict was harmful to the legal process “if a Jew benefited from the conflict.” As such, these were “questions of lesser importance.”
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2. The Situation of “Non-German” Defendants and Witnesses in the Penal Process

Following Hitler’s inflammatory speech against the judiciary on April 26, 1942, which led to a general crisis of justice, the Reich Ministry of Justice took matters in hand more energetically. Procedural discrimination within the bounds of the established rules was considered in order to prove to the Führer that the justice branch intended to follow a hard line against “non-German” in procedural matters too. The early measures in this regard were designed to limit the means of defense available to “non-Germans.”

A general directive issued by the Reich Ministry of Justice for the Annexed Eastern Territories in May 1942 prohibited court-appointed defense for Polish and Jewish defendants,
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except when “the public German interest” required it (and when would such interest ever require the defense of a “non-German”?). The order was based on the right to a “free procedural structure,” as was anchored explicitly in the Decree on Penal Law for Poles, but it was applicable only in the Annexed Eastern Territories. The intention of the ministry was to amend the Decree on Penal Law for Poles such that this exemption from the standard regulations would be extended to the Reich territory as a whole, where the appointment of counsel by the court was still obligatory in certain cases. According to Reich Minister of Justice Thierack, the matter of court-appointed defense would then depend on the “dutiful decision of the judge” from case to case.
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Since no such amendment of the Decree on Penal Law for Poles came about, however, the minister of justice tried at least to outlaw the choice of legal defense in the case of Poles and Jews. Notwithstanding the terms of section 137 of the Code of Criminal Procedure, according to which the defendant could have a legal counsel of his choice at any phase in the proceedings, the Reich Ministry of Justice circular of May 25, 1942,
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explicitly forbade the representation of Poles and Jews before the court by German lawyers, a move that met with criticism not only from the lawyers but also from the justice authorities, since it was feared that it would complicate procedure.
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Difficulties were also placed in the way of Poles and Jews acting as witnesses to a trial. Here, too, the model was the Decree on Penal Law for Poles, under which Poles and Jews could no longer be sworn in as witnesses (clause 9 in conjunction with the Amending Decree of January 31, 1942), with a view to reducing the value of their evidence and indeed making it completely worthless. It was now intended to apply this principle throughout the Reich. The ministry’s viewpoint was set out in a circular signed by State Secretary Freisler, dated August 7, 1942,
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according to which Poles and Jews were no longer to be examined as witnesses in the trial process.
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3. Final Objective: Exclusion of “Non-German” from the Whole Penal Procedure and Judicial Criminal Prosecution (Thirteenth Decree to the Reich Citizenship Law)

But from 1942, on, directives issued piecemeal were no longer sufficient to satisfy the ministry’s plans for the discrimination against Jews, for it wanted no less than published special law pertaining to Jews, including procedural law. A ministry draft of a decree on the limitation of legal recourse for Jews of August 3, 1942, provided that in criminal prosecutions, Jews were no longer permitted to apply for judicial review or to lodge appeals or formal objections.
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These efforts conflicted with the plan of the police authorities to transfer the criminal jurisdiction of Jews to the Security Police.
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Negotiations between the Reich Ministry of Justice and the
Reichsführer
-SS and chief of the German police resulted in the principle, approved by Hitler, that “nothing stood in the way” of handing over the criminal prosecution of Jews and Gypsies to the police.
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Thus, when it was finally enacted on July 1, 1943, the Thirteenth Decree to the Reich Citizenship Law
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went much further than the exclusion of Jews from legal recourse: its section 1 removed Jews entirely from the judicial criminal prosecution process (“punishable acts committed by Jews shall be dealt with by the police. Assets accrue to the Reich after death”).
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Apart from Jews, however, millions of other “non-Germans” lived in the Reich as part of the labor force, to whom the general German law of criminal procedure still applied de jure. For the justice administration this was an untenable situation. Once the ministry’s draft of August 3, 1942, on the limitation of legal recourse to Jews had been superseded by the Thirteenth Decree, Minister of Justice Thierack was able to establish discriminatory procedural law for “non-Germans” by way of internal instructions and recommendations, on the model of the limitations imposed on Poles. As the minister stated at the meeting of the Court of Appeal presiding judges and chief public prosecutors in Berlin on February 10–11, 1943, even “without a legal basis,” hostile “non-Germans” (i.e., nationals of “hostile states”) were not to appear as witnesses in trials of German citizens, a rule that was to apply not only to Poles but now also to Russians, Ukrainians, and so on.
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Poles also could not be employed as translators. Nor did the infringements of the law called for by the minister stop there: in addition to reducing the minimum penalty of three month’s prison camp as set out in the Decree on Penal Law for Poles to one month, with a view to allaying the serious manpower shortage, summary punishment awards against Poles should become effective and implemented immediately without appeal (in violation of sec. 400, Code of Criminal Procedure, old version).
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However, ever more drastic discriminations were planned by the Reich Ministry of Justice. As the ministry representative stated at the February meeting just referred to, the severance from all procedural regulations in line with the Decree on Penal Law for Poles should be extended not only to criminal proceedings but also to all judicial proceedings against “non-Germans.”
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