"Non-Germans" Under the Third Reich (102 page)

Reports on sentencing practice from Danzig–West Prussia are typical of the situation at the time. According to these,
Reichsstatthalter
Albert Forster, who had a “positive attitude to all questions of justice,” had explicitly noted that the special courts had also won the “unrestricted approval” of the political leadership, whereas the sentences passed by the regular courts (courts of first instance, criminal divisions) had initially been “unsatisfactory” and had therefore been criticized by the political leadership because the standards they had set had been too lenient.
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Only after the Decree on Penal Law for Poles had been issued was the president of the Danzig (Gda
sk) Court of Appeal able to report to the Ministry of Justice that “no more complaints” had been voiced about excessively lenient judgements.
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Similarly severe court rulings were reported from the other areas in the Annexed Eastern Territories.
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It is not possible to establish any uniform policy from the trends in court rulings in the individual phases of the development of special law, because both before and after the formal implementation of Reich penal law, all penal provisions were always subject to the proviso of no more than “analogous” application if this was necessary for political reasons; the result was large variations. Nevertheless, the rulings by some of the special courts were still relatively restrained, because of the extremely high sentences for crimes by Poles.
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The death penalty, as the standard sentence for offenses committed by “non-Germans” against members or facilities of the German administration under the Penal Law Implementing Decree of June 6, 1940, should most certainly not be regarded as “an adequate regulator,” as claimed by the literature,
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because before mid-1941 (with the exception of sentences for crimes of violence against Germans),
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death sentences, although frequent, were not yet the rule.
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However, long prison sentences had always been imposed on Poles right from the outset;
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these can only be regarded as lenient when compared with the situation reigning before the implementation of the Decree on Penal Law for Poles. Occasional attempts were made to redress the situation in the face of particularly harsh special penal law provisions, either by proposing their amendment or by interpretation,
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but these attempts were inconsistent with the very severe rulings handed down by the Reich Supreme Court against Polish defendants.
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However, the courts often pursued a policy of more severe punishments by extensive interpretation of the law even before the Decree on Penal Law for Poles came into force. This applied in particular to the Decree against Violent Criminals of December 5, 1939,
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which punished serious crimes of violence involving the use of weapons or other dangerous instruments by death, and which served as a “substitute regulation” to punish “acts of violence” by Poles against Germans before the Decree on Penal Law for Poles came into force.
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There were no reservations about interpreting this decree arbitrarily by regarding the bodily force used by the Polish offenders as a “dangerous instrument,” so as to be able to impose the death sentence in all situations. Politically undesirable statements by Poles, “whose nature made them tend toward rumor-mongering” and which would have been punishable under the Treachery Law of December 20, 1934,
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were prosecuted as an “insult to the German people” by analogy with section 134a of the Penal Code, under which only insults to the Reich or the Wehrmacht were actually punishable. Offenses committed by Poles while under the influence of alcohol were not subject to the mitigating circumstances allowed by section 330 of the Penal Code; to the contrary, drunkenness was regarded as aggravating the offense, since this expressed the “true inner attitude” of the accused.
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This trend in court rulings, which had increasingly eliminated the opportunities for interpretation under clearly defined criteria, reached its peak after the Decree on Penal Law for Poles had come into force. The courts were now subject to growing pressure from the political and judicial leadership to take “drastic” and extremely severe action.

The severity of court rulings under the application of the Decree on Penal Law for Poles is shown by the following sentencing practice: whereas a prison sentence was frequent before the Decree on Penal Law for Poles, the courts imposed strict-regime prison camp sentences in many cases once the decree was in force, because such a sentence corresponded roughly to hard labor. Later, however, the criminal prosecution authorities, at least in the Warthegau, were instructed to apply for strict-regime prison camp sentence in exceptional cases only, to prevent mass imprisonment; instead, standard prison camp sentences were to be applied for. In cases in which the maximum sentence (ten years) for standard prison camp would probably be exceeded, “regular” application for the death penalty would be suitable.
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Essentially, because the authorities believed that the core of the Decree on Penal Law for Poles was no longer punishment of the “crime as such,” but rather of “the disobedience expressed in the crime,”
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all otherwise unpunishable behavior could be criminalized and subsumed under the general clause of “behavior hostile to Germany” (clause 1, par. 3, Decree on Penal Law for Poles).
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For instance, statements in private letters written by Poles regarded as “hostile to Germany,” in themselves exempt from punishment, resulted in criminal prosecution, but sometimes with the sole intention of rescuing the accused from the Gestapo.
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“Behavior hostile to Germany” also included all expressions of Polish national sentiment, such as the singing of Polish songs or the national anthem, as well as contact with prisoners of war, which—particularly when women were involved—was punished by long penitentiary sentences.
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Even the most minor insubordination by the most humble of individuals (farm laborers, messengers, etc.) to their German masters was punished with great severity, by death or long prison sentences;
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for violations of “wartime penal law,” such as black-marketeering,
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theft of food, illegal slaughter of animals,
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forging ration cards, and the like, all of which were to be brought before the special courts under an order issued by the minister of justice on September 25, 1940,
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and which accounted for a substantial number of cases sentenced by these courts,
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the “most severe punishments” were also imposed;
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in particular the numerous death sentences for illegal slaughter of animals (crimes against the Decree on the War Economy) were “praised to the skies” by the political leadership, as reported by the Danzig chief public prosecutor.
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The draconian punishment practice did not relate only to special penal law alone, but also to all offenses by “non-Germans” against “German interests,” even if sentence was passed under Reich law or in conjunction with the Decree on Penal Law for Poles after its issue.
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Offenses against the provisions of labor law, such as unauthorized absence from the place of work (breach of employment contract) also received harsh punishment (sentences of between nine months’ imprisonment and a fine of twenty reichsmarks).
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However, Germans too were sentenced to death for violations of regulations (e.g., concerning the Winter Relief Fund) aimed at strengthening the National Socialist sense of community.
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Whether the aim of deterrence was ever actually achieved must remain doubtful. In the Eastern Territories, the crime rate was high from the outset because of the numerous crimes committed in connection with the “resettlements” (“evacuation thefts”).
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As the war continued, further growth in economic crime was recorded despite increasingly severe punishments, as was reported in East Prussia; there was also a rise in sexual offenses committed by Poles.
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An increase in crime in the annexed territories of Upper Silesia was also reported,
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either because offenses such as the illegal slaughter of animals, previously dealt with as administrative penalty offenses, were now brought before the special courts,
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or because there was a genuine increase in the number of crimes. The crime rate did not start to drop until 1943, perhaps a result of the draconian punishment practice of the judiciary but more likely because the latter was increasingly replaced by the police in the prosecution of crimes by “non-Germans.”
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Crimes by Germans in the Annexed Eastern Territories grew disproportionately to their percentage of the population, particularly as regards property offenses, economic crimes, and crimes involving bodily harm. According to reports by the judicial authorities, this was put down to the high number of criminal elements coming from the Altreich (because they were unable to earn a living there any more)
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and to “incitement” by Poles to commit crimes,
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as well as their behavior as members of the “master race” (“outrageous behavior by Reich Germans to Poles and Jewesses.”
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The loosening of the compulsory prosecution of criminal offenses by Germans, and the acknowledgment of a
right to beat
Poles,
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regarded as a “charter” to commit all kinds of crimes,
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must also have contributed to the high crime rates.
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Considerable differences can be identified with regard to the severity of court ruling practice in the individual areas of the Annexed Eastern Territories. Although only a few relevant documents still exist that indicate how similar crimes were punished in the case of Polish and German perpetrators,
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such breakdowns are possible with reasonable accuracy for death sentences, because corresponding execution lists have been preserved. As the death sentence was the standard sentence for crimes by “non-German” criminals after the Decree on Penal Law for Poles had come into force, it can also be used to draw general conclusions regarding trends in court rulings. The harshest anti-Polish line was pursued by the judicial authorities in the Zichenau Administrative District in East Prussia (Zichenau Special Court), followed by the “model district” of the Wartheland, regarded as the most important area of the Eastern territories because of its size and political significance. According to the execution lists of the Ministry of Justice, the number of death sentences as a proportion of the population of the administrative district was highest at the Zichenau Special Court headed by district court president Dr. Alfred Funk, a favorite of Gauleiter Erich Koch, followed again by the Warthegau.
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A clear break is evident between the time before and after the Decree on Penal Law for Poles came into force. Even in the Warthegau, “only” 45 death sentences had been carried out by December 1941,
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and the prisons of Posen (Pozna
) held a total of 172 persons condemned to death before February 1942.
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Once the Decree on Penal Law for Poles came into force, the number of death sentences rose steeply. In the
Reichsgau
Wartheland, 800 death sentences were executed in 1942 (December 24, 1941–December 24, 1942),
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and 72 in the Zichenau Administrative District in the first half of 1942 (January 1–June 15, 1942), with a sharp rise to 103 in the second half of the year.
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