"Non-Germans" Under the Third Reich (84 page)

Considerable efforts were also made to establish a basis of direct cooperation between justice officials and the Security Service. In his administrative instructions of August 3, 1942, the Reich minister of justice made the point that in terms of its staff and organization, the Security Service was a unit of the Party.
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Cooperation with the Security Service was “equivalent to activity in the Party” and, like the latter, was “of course possible for all officials and employees of the Reich judicial administration.” An example of such cooperation was provided by the change of office at the head of the ministry in August 1942: the Security Service contacted most (if not all) chief public prosecutors with the request to report their approval of this change “among wide circles, especially lawyers and most especially judges.” Although the chief public prosecutors responded to this request, they did not do so in writing, but only by word of mouth.
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Here we need to mention the close cooperation between the judiciary and the Party itself, for the close links between Party and police provided the latter with a mine of information on judicial matters. Ministerial directives required that the Party be informed of all penal and disciplinary cases involving members of the public service and members of the Party and its subdivisions.
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In other cases all the major Party and Party subdivision offices further had almost unlimited right of access to files and other information “on justified request”;
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for whether a request was justified or not was decided on political criteria, determined in the last resort by the Party, the leading power of the state, with which the justice authorities could not afford to get into trouble.

As time went on, the ties between the Party and the judiciary became ever closer as a result of pressure from above. After the “crisis of justice” in early 1942, the Reich minister of justice in office reported to the Führer that he had “personally made the justice chief responsible for the closest collaboration with the high officials of the Party.”
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It is consonant with the Party’s advance at that time that the Party Chancellery and the
Reichsführer
-SS and chief of the German police should agree to recruit Party members to the auxiliary police force to watch over foreign workers from the East and to spy on fellow Germans and “note lapses of any sort.”
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Finally, toward the end of the Third Reich, Party functionaries officially took on duties as auxiliary officials in the public prosecutor’s office (sec. 152, Law of Judicial Organization, old version); and following a September 1944 agreement on “closer cooperation” between the police and the Party, the political chiefs of the Party’s structural divisions were given auxiliary police duties to detect “defeatists and rumor-mongers”; “suitable party members” got honorary positions in the Security Police.
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Conversely, however, the judiciary was not informed of the decrees and instructions issued by the police, or only at a very late juncture, nor did it have any official sources of information within the Party. On account of the absence of appropriate guidelines, any information generally reached the judiciary “by the courtesy” of the local police authorities. Only at Thierack’s request in 1943 did the record of Secret Police orders, which contained all the decrees issued by the
Reichsführer
-SS and chief of the German police, go to the chief public prosecutors and attorneys general in addition to the Reich Ministry of Justice, although not to the presiding judges of the courts of appeal. Finally, we may mention the collaboration between the judiciary and the police in a number of technical fields and regarding certain classes of people, which went far beyond the general consultation we have spoken of.

First and foremost among these, of course, were the political cases, which were dealt with in close collaboration between the judiciary and the police.
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Very shortly after the seizure of power, instructions were circulated in the
Länder
on the basis of a decree issued by the Reich minister of justice,
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according to which the political police were to be notified of all cases in which political detainees were on the point of the being released after imprisonment or detention in pretrial confinement. Such notification was required four weeks before the release, so that the need for protective custody could be considered. Under the terms of the decree, people who had been arrested for “behavior hostile to the state” were to be released from pretrial confinement once strong suspicion no longer held, but only after a hearing before the political police. The arrangements whereby the police were to be informed were reiterated in an instruction from the Reich Ministry of Justice to the prison directors dated October 29, 1935.
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“At the request” of the
Reichsführer
-SS and chief of the German police, the Reich Ministry of Justice issued two further decrees on June 3 and October 17, 1936, requiring that in addition to the Gestapo, the Security Service was to be notified of the imminent release of political prisoners.
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With the unification in 1936 of the SS and the police under a common head, the
Reichsführer
-SS and chief of the German police, the regulations became centralized. The Ministry of Justice first issued a circular on January 18, 1937,
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instructing the public prosecutor’s office to inform the police unit that had undertaken the investigation of all proceedings concerning treason,
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so that the police could investigate whether protective custody was necessary after the term of imprisonment or release from pretrial confinement. At the same time it made explicit that this procedure was also applicable to people who had been charged prior to January 30, 1933, but who had been condemned since that date. Only a few weeks later, a decree issued by the
Reichsführer
-SS and chief of the German police on February 18, 1937, transferred all “state police affairs” from the regular police (criminal police, gendarmerie,
Schutzpolizei
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over to the Gestapo.
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The Reich Ministry of Justice expressly approved the decree of February 18, 1937, on the mere condition that no “delay in the proceedings” should result from this change,
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so that with a stroke of the pen an administrative guideline demolished the principle that the investigating authority was always the public prosecutor, with the police being authorized to act only as an auxiliary organ thereto (sec. 160, Code of Criminal Procedure; sec. 152, Law of Judicial Organization).
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For once the Gestapo became the master of so-called state police affairs (“treasonable activities”), it had the power to sever the direct channel of information between the regular police authorities and the public prosecutor’s office. Instructions from the Gestapo exist forbidding investigations by all police units and reserving them exclusively for the Gestapo.
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At the same time, the notion of “state police affairs” kept becoming broader. On July 2, 1937, the ministry issued a further order, under which the obligation of the prison authorities to report to the Gestapo and the SD was extended to the imminent release of Jehovah’s Witnesses.
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With a further order dated March 8, 1938, the ministry decreed that the release of “race defilement” offenders should also be reported to the Gestapo six weeks ahead of time, with “a copy of the judgment and grounds” appended.
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Already at this early stage of police expansion, the judiciary was entrenched in two mechanisms in its relations with the police that greatly contributed to its dislodgement from a broad field of action.

The first of these was the continued practice, however illogical it may seem, of not defining legal concepts, such as “state police affairs,” just mentioned, but of merely describing them, apparently on the assumption that a unified legal terminology would continue to exist in its substantive content in relation to the political authorities, just as it had before 1933. How wrong this assumption was, giving as it did the totalitarian police organization the possibility of extending the interpretation of legal terms quite boundlessly, is proved by the continual extension of the categories of people liable to protective custody.

Whereas in its circular decree of January 18, 1937, the judiciary had provided that only political offenses in the narrow sense would be passed on to the Gestapo for it to examine the need for protective custody, the police early extended the concept of “political offense” such that all offenses were construed as acts against the
Volksgemeinschaft
and thus were political. For example, the Reich Ministry of the Interior circular of December 14, 1937, included what were called “professional criminals” and “asocial” persons in general (persons whose asocial behavior presented a danger to the community) among protective custody candidates, whether or not they had been convicted.
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The second mechanism that considerably weakened the judiciary’s position was to provide the police with detailed information on all criminal investigations and proceedings in progress, with no quid pro quo from the police. Thus, as reports by the judicial authorities complained, the circular of January 18, 1937, permitting a protective custody evaluation for political offenders,
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gave the police “complete freedom to obtain information on all such proceedings and to take police measures”
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(that is, protective custody). At the same time, the ministry itself continually broadened the circle of people automatically qualifying for such consideration of protective custody. The decree of July 2, 1937, extended it to Jehovah’s Witnesses
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and that of March 8, 1938, to people who had been convicted for “race defilement.”
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We must presume, however, that such people were committed to a concentration camp, even if they had been acquitted or proceedings had been suspended.

Of course the very possibility of imposing protective custody offered by these decrees was interpreted by the police as an authorization to do so whenever it suited them. Protective custody following release was therefore not limited to political offenders in the narrow sense but was applied as a general principle to “jailbirds,” Jehovah’s Witnesses, and those convicted for “race defilement.”
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More generally, it must also be presumed that even before 1937 the Gestapo was regularly informed of all imminent releases so that it could undertake its investigations.
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This was particularly true for protective custody detainees regarded as “asocial.”
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Here the enforcement agency was directed to obtain the “comments” of the competent Security Police authority (criminal police) before ordering their release;
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in effect, such release depended on police permission. The same directive, however, vetoed releases generally: if they nevertheless did occur, the individual was to be put into protective custody immediately,
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so that whatever happened he continued to be detained.

At the end of the war, court prosecutions were restricted even more to the advantage of the police, “for reasons of simplification. ” Toward the end of 1941, the prison authorities—doubtless in connection with the “resettlement” of Jews in the East that began in this period—were instructed to report the imminent release of all Jewish prisoners to the local Gestapo,
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whereas eight months earlier these reports had gone to the local criminal police.
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All these agencies were to take a stand on the release of such prisoners and the imposition of protective custody.
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Here, too, protective custody was the general rule, and in the case of Jews invariably so. Finally, as the war drew on, protective custody took absolute priority, a sign of the incipient general discrimination that came to include Germans too. “Community regulations” issued by the Reich minister of justice and the
Reichsführer
-SS and chief of the German police in late 1944 instructed that criminal proceedings “of a minor nature” should not longer be instituted against people in protective or preventive custody. The execution of sentences of previously convicted persons detained in a concentration camp was suspended, and the
Reichsführer
-SS—although only at the request of the senior executive authority—waived the restitution of prisoners for whom protective custody was planned after their sentence had been served. In such cases, protective custody was to be served in the prisons of the justice branch.
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Collaboration between the judicial authorities and the (political) police was not limited to reporting the imminent release of prisoners, however. It also involved the decision not to institute criminal proceedings when this appeared necessary for political reasons, a practice that became increasingly common in the latter years of the war but was by no means confined to them. For example, the Reich Ministry of Justice instructed the public prosecutors to pursue investigations concerning the events of the
Reichskristallnacht
only in particularly serious cases and to drop all others.
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