"Non-Germans" Under the Third Reich (101 page)

The political leadership strove to tighten special law even further, but such efforts were not realized because this would have represented an all-too-blatant violation of the principle of the courts’ power to pass sentence, to which the judicial authorities continued to adhere, at least formally. Deserving mention is the attempt by the
Reichsstatthalter
of the Warthegau to transfer in full to the public prosecutors the authority to issue summary punishment orders (a right that had already been exercised by the courts, in part very arbitrarily),
⁵⁵
because he claimed that it was unfortunate that “differing opinions between the judge and the public prosecutor” “were being voiced in front of Poles on the record, as it were.”
⁵⁶

The subjection of the Poles to absolute special penal law was finally completed by the authorities’ taking care to ensure that a purely territorial justice was developed, on which no Reich instance could have any influence. Because the public prosecutors could bring charges at their own discretion, they always prosecuted punishable actions by Poles and Jews so that the ruling by the last court of appeal was always a court in the Eastern Territories, that is, a special court or a court of first instance, because their rulings were unappealable, or could be reviewed in the final instance only by the court of appeal responsible (sec. 121, Judicature Code).
⁵⁷
For this reason, no prosecutions at the criminal divisions of the courts of appeal, which would in any event have been possible for political criminal proceedings (secs. 5 and 6 of the decree of February 21, 1940),
⁵⁸
were recorded (at least in the early stages) because the final instance in this case would have been the Reich Supreme Court.
⁵⁹
Along the same lines as the creation of territorial justice, the Reich minister of justice delegated the prerogative of mercy for Polish and Jewish cases in the first instance to the
Reichsstatthalter
of the Warthegau in response to his constant urging, and later—under political pressure—to the
Reichsstatthalter
in Danzig–West Prussia as well.
⁶⁰
This exclusion of Reich courts of appeal completed the alienation of the “non-Germans” from general law, delivered them to the territorial justice of the local administration, and put them at the mercy of the principles of the “ethnic struggle.”

III. The Elaboration of Special Law by the Courts: Overview of Sentencing Practice

Because of the lack of relevant regulations or the fact that such regulations as existed were more of the nature of umbrella clauses, court rulings were of supreme importance for the elaboration of special law in the Annexed Eastern Territories. In contrast to the Altreich, where, as described above, there were still clearly defined offenses despite the trend toward weakening the statutes at large, there was still a well-established literature, and court rulings had not lost their significance, in the Annexed Eastern Territories the primacy of the “ethnic struggle” meant that rulings in individual instances were completely dependent in the attitude of the individual public prosecutors and judges—despite a large number of mostly ineffective guidelines and recommendations from above
¹
—and were thus, as was expressed at the time, a “question of the personalities of the individuals concerned.”
²
This applied in particular during the initial phase of the legal vacuum, in which the courts had taken the place of the legislators and had initiated the special treatment of the “non-German” population, true to the political maxim of the “ethnic struggle.”
³
Later on, court rulings continued to retain their dominant position, because even after the implementation of German penal law in the Annexed Eastern Territories, the principle of unequal treatment for ethnic policy reasons, concealed under the concept of “analogous application,” remained in force.
⁴
Finally, the Decree on Penal Law for Poles consisted largely of extremely elastic general clauses requiring concretization from case to case.

However, because of the lack of documentation or the inaccessibility of much of it and the meager statements in the literature,
⁵
it is not possible to establish with any degree of certainty the use made by the courts of these opportunities that were open to them. It can be shown that there were certain tendencies in court rulings depending on the type of court and the area in which sentence was passed, and to this extent they can be said to produce a fairly accurate picture of the way in which special law was administered in the Annexed Eastern Territories.

By combining these trends, it is possible to establish that court rulings against Poles and Jews were very harsh, at least according to official documents, as had always been demanded and emphasized with acclaim by the political leadership and the judicial administration.
⁶
However, this should be seen in the light of the fact that court rulings against German state subjects and ethnic Germans were already draconian. In the case of “non-German” defendants, the harshness knew no bounds. This development therefore reflects penal practice in the Altreich, but with the harshness of penal practice with respect to both Germans and “non-Germans” many times more severe. The following principles can be identified with regard to “non-Germans”: as a rule, Poles and Jews were punished more harshly than Germans, first as revenge for the Polish “atrocities,” but primarily because of the “inherent reason” that Poles “were only tolerated in this old land of German civilization” and were thus “required to obey German order particularly strictly.”
⁷
The special courts in particular did their utmost to enforce the “ethnic struggle,” that is, the treatment under special law of Poles and Jews. A wide variety of reasons played a role in this—the administrative control of the judicial system and the National Socialist image of the judge as a “vassal of the Führer,”
⁸
the pressure of the judicial bureaucrats and of the propaganda, the conformity of the judicial officials with the general Polish policy, the ambition of influential judges and public prosecutors, the motivation of the individual “to perform development work in the German East,”
⁹
and an appropriate personnel policy (“experience in the ethnic struggle” as a qualification for the courts and the top posts in the judicial administration)
¹⁰
—all of which ensured the severe administration of justice. The judicial system thus demonstrated that it too was in a position to “resort to drastic measures” to meet the “needs of ethnic policy,” which meant not only the harshest possible sentencing but also the quickest possible (punishment “on the hoof”).
¹¹

These “drastic measures” were possible only because many judges and public prosecutors were prepared to adopt to a large extent the police-state concepts of the “ethnic struggle,” “protection against ethnic dangers” and the legal inequality of Poles and Jews as a matter of principle. For instance, there was nothing preventing them from assuming a less serious case (punishable by imprisonment) and not a standard case (for which the death sentence was always to be imposed) when applying the Decree on Penal Law for Poles, in order to rescue the accused from execution. Instead of this, however, the special courts recognized a rapidly decreasing number of such less serious cases. The heads of the courts of appeal played a key role in this draconian penal practice; even under the standards of the day, they frequently showed far-reaching “sympathy” for the urgings of the leadership, and none of them are known to have raised serious objections to the “legal situation” in the Annexed Eastern Territories, a situation that was a mockery of any concept of law. On the contrary, they did much more than was necessary to secure the favor of the judicial leadership and the Party:
¹²
the general policy of penal law for Poles was received neither with criticism nor with silence, but rather frequently with effusive praise and approval (“thankful task,” “weapon in the struggle” against “the subverters of German defense,” etc.);
¹³
only when it came to details were there some complaints. If the reports by senior officials to the ministry contained complaints, they almost always involved complaints about the
general
situation: the growing difficulties with staff, the lack of loyalty to official policies and the poor quality of the staff,
¹⁴
the wide-spread dissatisfaction in the judicial administration with accommodation and pay,
¹⁵
and, from 1942 on, in particular, the intrusion by the police into the jurisdiction of the judicial authorities.
¹⁶

Any attempt to outline the trends in court rulings in the Annexed Eastern Territories will uncover a variety of distinguishing criteria, such as the legal right under attack, the individual branches of the judiciary, the districts or provinces concerned, or the development of special law over time. The greatest distinction is seen in the type and severity of the legal right under attack. Of course, criminal prosecutions concentrated on offenses directed in any way whatsoever against the German occupying powers and their interests, and these received draconian punishments. This applied in particular to acts of violence by Poles against Germans in the first days of the war, for which—as has already been discussed in detail—the death sentence was imposed almost without exception.
¹⁷
For offenses that—in the opinion of the day—did not affect German interests, for instance crimes by Poles against Poles, the policy was reversed; no criminal prosecution was pursued, since the bureaucrats at the time believed that it was not the task of the judicial system to “punish” violations of the law among Poles and Jews, that is, not to apply penal law at all, as this would only serve “the protection of the Polish people” or the “safeguarding of Polish interests.”
¹⁸
For instance, State Secretary Freisler had issued an instruction that proceedings should be quashed in cases where Poles had injured other Poles,
¹⁹
the aim of this being to leave the “non-Germans” to their own devices in the area of penal law and thus promote their criminality.

With regard to the sentencing practice of the individual branches of the judiciary, it should be remembered that criminal offenses by “non-Germans” were brought before the regular courts only if these involved cases of a relatively minor nature. As a rule, the regular courts operated more carefully, and compared with the practice of the special courts, they displayed a degree of relative restraint, although one is forced to refer to “leniency” when prison sentences approaching the maximum range of penalties were imposed.
²⁰
The vast majority of criminal offenses committed by “non-Germans” were brought before the special courts, which therefore dominated the sentencing practice to a very large extent. In contrast to the regular courts, these special courts—in particular those in the Warthegau
²¹
and the Zichenau Special Court (responsible for the former Polish areas incorporated into the province of East Prussia)—exercised right from the outset a previously unknown degree of deterrent and retaliatory justice; the harshness of their sentences and the continuous publicity given to them
²²
more than met the intimidatory target demanded by the political leadership and the judicial administration.
²³
In particular since the coming into force of the Decree on Penal Law for Poles, their rulings had become “consistently severe” and their proceedings “sufficiently harsh and quick” to satisfy all the demands of the policy of ethnic and racial repression, according to the chief public prosecutor in Kattowitz (Katowice).
²⁴

The speed with which death sentences were executed also contributed substantially to the deterrent effect; as a rule, there were only six to eight days between the death warrant and the execution itself,
²⁵
and often no more than a couple of days, even—as reported from the Warthegau—frequently no more than twenty-four hours.
²⁶
The shortcomings established by the Ministry of Justice—that the prison officers in the Warthegau could not be expected to carry out hangings because of their advanced age
²⁷
—do not seem to have had much of an affect on the enforcement of death sentences, since the guillotine was also used for executions. Efforts to achieve the
immediate
enforcement of death sentences failed only because of the lack of executioners, a job for which numerous applications were received from all over the Reich.
²⁸
To multiply the deterrent effect, executions were often carried out in public; there must be some doubt, however, as to whether these achieved their desired effect, because such measures either reinforced resistance or the population became “used” to them.
²⁹

The harsh sentences meant that the special courts could be sure of the undivided approval of the judicial administration
³⁰
and the political leadership, whereas the regular courts often aroused displeasure, particularly in the ranks of the Party, since they “deliberately favored” the Poles.
³¹