"Non-Germans" Under the Third Reich (100 page)

b. Proceedings

The same approach of making the special courts the sole instruments of the prosecution of “non-Germans” by abolishing all ties to general penal law is also evidenced by the special-court proceedings.

Although the general Reich law procedure rules of the Decree on Special Courts of March 21, 1933,
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originally applied under the aforementioned decree of the military governor of September 5, 1939, there was even there a departure, in that the proceedings were not referred to as regular court proceedings.
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This excluded any appeal in a regular court against the ruling of a special court. There is little evidence that “non-German” offenders made any use whatsoever of the sole remaining possibility of review by reopening the proceedings;
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the authorities were, in any case, in favor of restricting legal remedies for “non-Germans,” because it did not appear “practicable” to allow “Poles to flood the criminal prosecution authorities and courts, overburdened as they are, with usually unsubstantiated appeals and petitions.”
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A further departure from general procedural law to the detriment of “non-Germans” is represented by the decree by the commander in chief of the army for Polish territory of October 1, 1939,
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under which the prohibition on retroactive effect was abolished and the compulsory prosecution of criminal offenses (sec. 152, par. 2, Code of Criminal Procedure) set aside,
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allowing the optional sentencing of all offenses committed before September 1, 1939, in occupied Polish territory. Under this decree, exclusively motivated by political factors (i.e., to serve as the basis for punishing crimes by Poles against Germans shortly before and during the outbreak of the war), crimes by Poles against Germans (the “September crimes”) were prosecuted but not crimes by Germans against Poles, because these involved the “protection of the German nation.”
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The authorities were able to apply this nullification of the compulsory prosecution of criminal offenses all the more, as the subsequent Penal Law Implementing Decree of June 6, 1940, had also explicitly annulled the compulsory prosecution of criminal offenses (art. 1, clause 2, no. 1). The granting of privileges to German offenders was generally considered when crimes were committed against Poles in which it was “expedient” to ignore any punishment “in a properly understood sense of the well-being of the German nation,” because punishment “would excite the Poles, cause satisfaction, or even awaken or strengthen their spirit of resistance.”
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One of the decisive privileges granted to Germans was that politically explosive crimes, such as the numerous acts of violence by Germans against Poles committed during the reign of the military authorities, came under a general amnesty and were thus tacitly sanctioned under an unpublished secret decree by the Führer and Reich Chancellor of October 4, 1939.
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Under this decree, which was to be seen as an act of revenge for the perceived Polish excesses at the beginning of the war, crimes “committed between September 1 and October 4, 1939, in the Annexed Eastern Territories because of rage at the atrocities committed by the Poles” were not to be prosecuted. Final and absolute sentences were to be remitted, pending criminal proceedings to be discontinued.
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Hitler, however, had more far-reaching plans: by means of a general amnesty, for instance on April 20, 1940 (Hitler’s birthday),
all
crimes committed by Germans “in the former Polish territories” were to receive amnesty. This would have meant the collapse of the regular administration of justice and the official sanctioning of all crimes committed against Poles. The Armed Forces High Command, which was given the task of reviewing this proposal and, together with the Ministry of Justice, providing professional support, came out against a general amnesty, supporting only the “mild treatment” of some types of cases. This would be possible because the opportunity principle applied in general to criminal prosecutions in the Eastern Territories; that is, expediency would be the key factor. This convinced Hitler to scrap the planned amnesty.
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The opportunity principle further discriminated against Poles in that the authorities did not recognize any compulsory prosecution of criminal offenses
among
Poles and rejected any intervention if “this would serve only for the protection of the Polish people.” As the Posen (Pozna
) chief public prosecutor explained, it could not be the “function of the German state prosecutors and judges” “to assume the protection of the Polish people by applying German penal law.”
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Apart from these special provisions, the relevant provisions of Reich law applied to special-court proceedings,
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with the period of relative stability that started with the coming into force of the Decree on Penal Law for Poles of December 4, 1941,
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now coming to an end.

2. Procedural Discrimination against Poles and Jews under the Decree on Penal Law for Poles

With the Decree on Penal Law for Poles bringing “unequal treatment on racial grounds” to perfection, it was no longer necessary to maintain the general law of criminal procedure as a facade for “non-Germans.” The complete severance from general law reached its peak in procedural law. As in the Implementing Decree, the abolition of the principle of mandatory prosecution—already the reigning practice of criminal prosecution—was also set out in this decree; under clause 4, the public prosecutor was to prosecute “crimes by Poles and Jews that he believed it would be in the public interest to punish.” This provided the decisive starting point for a practice of discriminatory criminal prosecution, since it was clear that for crimes by Poles and Jews (including offenses for which an application for prosecution was required), there was always a public interest in criminal prosecution,
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whereas crimes committed by Germans against Poles and Jews were to be prosecuted and punished more leniently as a matter of principle.
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As was the case in substantive law, clause 12 of the Decree on Penal Law for Poles replaced the previous rules of criminal procedure with a boundless general clause and also appealed for an overt breach of the law: “The court and the public prosecutor shall organize the proceedings on the basis of the German law of criminal procedure in accordance with their own best judgment. They may deviate from the provisions of the Judicature Code and the Reich Law of Criminal Procedure in cases where this would be expedient for the rapid and firm enforcement of the proceedings.”

Despite assertions to the contrary, this far-reaching enabling provision, this ability “to enforce quick proceedings … unhampered by formalities,”
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placed great difficulties in the way of the courts, because—as during the time of the legal vacuum—it was now necessary to develop original new forms of court proceedings.
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Together with the aforenamed general clause, however, the Decree on Penal Law for Poles also contained a number of special provisions aimed at safeguarding the policy of the courts in the general disfranchisement of Poles and Jews. For instance, they lost all guarantees they had previously enjoyed while Reich procedural law still applied (art. 1, no. 2, Penal Law Implementing Decree of June 6, 1940); arrest and temporary detention were now permissible at all times if there was “strong suspicion” (and in committal proceedings, even without an arrest warrant signed by a judge [clause 8, Decree on Penal Law for Poles]), whereas section 112 of the Code of Criminal Procedure required specific reasons for arrest. Sentences in criminal proceedings against Poles and Jews could be enforced without delay. Although this had always been the rule for sentences by the special courts,
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it was an innovation for the courts of first instance. In contrast, the criminal prosecution authorities retained wide-ranging possibilities of appealing against court rulings (clauses 6, 10).

The remaining rights of Polish and Jewish individuals under the law of criminal procedure were also eliminated in full. The right of private and accessory prosecution, already suspended under the Implementing Decree of June 6, 1940,
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was fully abolished, as was the right to reject judges on the grounds of partiality. The competence of Poles and Jews to take an oath was also abolished (clauses 7, 9, 11); this was adhered to despite all the resulting difficulties in trials.
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As with almost all special-law provisions, this was merely a legalization of existing practice. Even before the Decree on Penal Law for Poles had come into force, an internal administrative instruction had established that Poles should not be examined as witnesses in court proceedings wherever possible, “as long as such an examination was not imperative”; at the very least, they should not be put on oath, “to prevent a violation of ethnic policy guidelines.”
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The abolition of the oath for Poles applied—at least in the Warthegau—in civil proceedings as well, because, according to the Posen Court of Appeal, “the arrogance of the Poles, their tendency to exaggerate, and their lack of love for the truth give rise to particular prudence when assessing statements made by Polish witnesses.”
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Furthermore, the appearance of Poles and Jews before the court was to be prevented if at all possible. A supplementary decree of January 31, 1942,
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to the Decree on Penal Law for Poles empowered the courts to have Poles and Jews examined as witnesses by an authorized representative or by a request to another judge. An attempt was also made to prevent the appearance in court of sworn Polish interpreters (“impossible procedure”), particularly if Germans and Poles were on opposing sides. “Rightly or wrongly,” complained the president of the Hohensalza (Inowrocław) Administrative District to the
Reichsstatthalter
in Posen, Germans would transfer their distrust of the court interpreter to the entire court, “giving rise to the impression that Poles were sitting in judgment over Germans.”
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The opportunities for Poles and Jews to defend themselves in court, still permitted under general procedural law even in the special courts, were either mostly abolished or completely eliminated. Although the Decree on Penal Law for Poles itself did not contain any provision for this, elimination was equally effective because of pressure from above, with the president of the Königsberg Court of Appeal, for instance, resolutely disapproving of the right of Poles to elect defense by German lawyers in his own district (“impossible situation”);
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in addition, a decree was circulated by the Ministry of Justice on May 21, 1942,
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stating that any assumption by German lawyers of the elective defense of Poles would contradict the purpose of the Decree on Penal Law for Poles. This should be “prohibited by professional ethics,” which was indeed what happened promptly—at least in East Prussia (and probably in other districts as well)—by the local bar association.
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The ban on elective defense for Poles, which was a particularly hard blow to lawyers in small towns, was supported to the full by the local judicial leadership on the grounds of absolute separation of Germans and Poles (“it is unworthy of any German to act for a Pole against payment”), and—as reported by the president of the Königsberg Court of Appeal—it was supposedly welcomed “warmly” by the judges and public prosecutors (because, perhaps, it was possible to finish the proceedings more quickly without any legal representation?).

The justification supplied was that it would damage “the standing of the Germans in the eyes of the Poles if one jurist [lawyer] were to plead for a lenient sentence, but the other jurist [judge] were to pass a harsh sentence.”
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German lawyers who still acted as elective defense lawyers for Poles were to be reported to the responsible appeal court presidents and could expect political difficulties.
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According to a recommendation by the president of the Danzig (Gda
sk) Court of Appeal to his subordinate authorities, the courts “should” generally reject German lawyers’ defending Poles as elective counsel,
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although there was no legal basis for this. The ability of Jews and Poles to allow themselves to be represented by Polish lawyers was also eliminated almost completely, because Polish lawyers (“advocates”) enjoyed only an “advisory status” in the Eastern Territories and could be admitted as defense lawyers only in cases of particular political reliability.
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Finally, the right of court-assigned defense, which section 32 of the Jurisdiction Decree of February 21, 1940, stipulated as mandatory in certain cases (“necessary defense”), was also eliminated substantially; an administrative instruction by the Ministry of Justice in May 1942 had generally prohibited court-assigned defense of Poles and Jews to remove from them any opportunity of defense.
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This being the case, there could certainly be no legal right for defendants to any defense in the penal law for Poles, especially since “free procedural organization” applied in any case. Under this concept, the appointment of a defense lawyer was at the discretion of the court; it should be obvious that for Polish defendants, most of whom were sentenced to death or long prison sentences, a court-appointed defense lawyer was hardly ever deemed necessary, as was openly admitted by the judicial administration.
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