"Non-Germans" Under the Third Reich (106 page)

The extent to which these courts-martial started operating in the Warthegau is not certain; in his final statement to the Polish Supreme People’s Court of Justice in 1946, Greiser himself claimed that no use was made of the decree of August 3, 1942.
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Even if such courts-martial had indeed been established, the Gestapo frequently used “simpler” methods; that is to say, it continued its previous practice of execution without trial even after the decree of August 3, 1942.
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In Upper Silesia, a decree of June 1, 1942, by the higher district president established Gestapo courts-martial for sentencing “serious crimes” by Poles and Jews.
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The wording of the decree corresponded in full to the subsequent Posen decree of August 3, 1942.

Here, too, the right of confirmation of court-martial judgments was transferred by the higher district president to the higher SS and police leader (HSSPF) and thus completely to the Security Police. In the Annexed Eastern Territories of Upper Silesia, otherwise regarded as relatively moderate, the list of crimes for which trial by court-martial was stipulated by a instruction of the higher district president of June 1, 1942,
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was so extensive that it far exceeded the scope of clause 13 of the Decree on Penal Law for Poles; it covered all political crimes, war economy laws, and all minor or less serious offenses directed against Germans; no offense was excluded.
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Despite this, the police continued their efforts to retain sole jurisdiction for the sentencing
without trial
of “non-German” offenders, because this list was linked to offenses under Reich penal law and demanded definitions and demarcations, and the higher district president evidently transferred only a small percentage of cases presented by the Gestapo to the courts-martial.
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However, this did not mean that the other cases were handed over to the judicial authorities; rather, the police, who controlled all investigations, made increasing use of Gestapo “special treatment” (execution or protective custody) without any court-like proceedings,
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this being much easier to accomplish than court-martial trials.

The legal situation was similar in East Prussia, where the higher district president and Gauleiter E. Koch established a court-martial in the Zichenau Administrative District by a decree of August 15, 1942,
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but reserved for himself the decision as to which crimes should be sentenced by the court-martial.

Originally, it was intended for cases in which “crimes by members of the Polish resistance movement particularly affected public security,” a clause that was obviously construed very extensively, as seen by the fact that Koch deemed it necessary to stipulate in the concluding provision of the decree that crimes “would continue to be sentenced by the general courts.” In this case, too, the activities of the courts-martial appear to have been minor, since the police preferred to continue their established practice of public executions without trial.
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Only in Danzig–West Prussia were no police courts-martial established; in view of the large mixed Polish-German population in the
Gau, Reichsstatthalter
Forster feared for the success of his Germanization policy, which he saw as being put at risk by the surrender of judicial powers to the police.
⁸³

Finally, the extension of illegal and “legal” police practices resulted in the police controlling most criminal prosecutions against Poles and Jews from mid-1942 onward, whether by means of the courts-martial or by the customary executions without trial, as ascertained in a meeting of the senior presidents in Berlin in September 1942.
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For this reason, once they were in the hands of the police, “non-German” prisoners rarely saw freedom again. Beginning in 1943, the judicial authorities also delivered their Polish prisoners officially to the police after serving their sentence if they had been sentenced to more than six months’ imprisonment (and Poles normally received more than this) or (from 1944 on) more than a year.
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As was reported from the Warthegau, this practice had the grotesque result that the courts frequently handed out sentences
lower
than the level at which transfer to the Gestapo was the rule (that is, less than six months/one year) or sentenced the defendants to death rather than to long terms of imprisonment, in order to “give the criminals the benefits associated with immediate execution of the death penalty[!].”
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c. The Undermining of the Decree on Penal Law for Poles by Police Orders

The establishment and activities of the courts-martial on the basis of clause 13 of the Decree on Penal Law for Poles alone could not have been the cause of the massive rise in police actions from 1942 on; rather, it was due to the general growth in the power of the police, which steadily swamped the civil powers. A substantial contribution to this was made by Minister of Justice Thierack, in office since August 20, 1942, who consistently supported the efforts of the SS and police leadership to gain exclusive jurisdiction over penal matters, and even when these efforts had been broken by the resistance of the
Reichsstatthalter
(higher district presidents) in the Annexed Eastern Territories,
⁸⁷
Thierack continued to support this policy in recommendations and guidelines to the judicial authorities.
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A general transfer of jurisdiction for criminal prosecutions of Poles and Jews to the police by way of decree, as planned by Thierack and Himmler in fall 1942 (in breach of the Decree on Penal Law for Poles), would have removed the bulk of all criminal cases from the judicial authorities in the Annexed Eastern Territories; in Danzig–West Prussia, for instance, as the minister of justice noted, the local judicial authorities, who were in any case “strictly trained and monitored” in all cases involving Poles (i.e., were stalwartly anti-Polish), would have lost 50–70 percent of all criminal cases.
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However, this loss of jurisdiction was implemented via the back door when it proved to be impossible to issue such a decree; the police fell back on the expedient, “proven” in the Reich, of secret directives, or they simply continued their arbitrary interference.

In summer 1942, the situation reports of the presiding judges of the appellate courts and chief public prosecutors in the Annexed Eastern Territories were full of complaints about the growing activities of the police courts-martial, executions by the police without trial by court-martial, and the lack of information provided by the police to the judicial authorities, which practically paralyzed the activities of the judicial authorities.
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However, it would be a mistake to think that this paralysis had set in only in 1942. From the outset, as shown by the reports of senior judicial officials, arbitrary actions by the police and violations of the jurisdiction of the judicial authorities had been daily occurrences.
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As early as 1941, a report mentioned the “paralysis of the public prosecutors to the benefit of the police” in Posen.
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Redress for this situation, viewed as scandalous even by judges and public prosecutors who essentially approved of the “ethnic struggle,” was demanded not, or not only, with arguments about legality, that is, jurisdiction and division of responsibilities, which in a totalitarian state frequently appear to be the sole possibility of appeal and were preferred by the judicial authorities;
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rather, they took the initiative, in line with the approach of the Reich leadership. To emphasize the efficiency of the judicial authorities, the reports from the appeal court districts are therefore full of praise for the “speed and effectiveness” of the special courts, which were well ahead of the police and could execute death sentences (including by having hangings carried out by the police)
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much more quickly; therefore, these strong police activities were not at all necessary.
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They attempted to show that the judiciary could punish just as harshly and could impose the same sanctions on the accused as they would suffer under the police (death or life imprisonment);
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indeed, the senior officials themselves often urged the courts to impose harsher sentences and made suggestions about how the court-martial trials and the execution of sentences could be accelerated still further.
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This was all done in the vain hope that they could hold out against the pressure of the Gestapo.

The situation in Upper Silesia was particularly scandalous, with the police having become the “far-reaching master of the administration of penal justice against Poles and Jews.”
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It is significant that the police extended their scope to Germans on the German Ethnic Classification List who had received German state subject status, a practice pursued not only in Upper Silesia but also elsewhere in the Annexed Eastern Territories.
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The device frequently employed by the police to make things “formally” appear to be “orderly” was to revoke the German state subject status of persons registered in the German Ethnic Classification List and reclassify them as Poles; any protests worthy of being termed as such therefore related primarily to such cases, whereas the jurisdiction the police had usurped was increasingly accepted as part of the “regulatory power of facts”; it was certainly not queried explicitly. The reports restrict themselves to mere statements of findings.
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These reactions to the arbitrary conduct of the police were, taken overall, of little consequence, because they remained within the judicial apparatus and no action was taken by the central authorities in Berlin, either with regard to the surrender of “non-Germans” to the police (Minister of Justice Thierack fully supported Himmler’s views) or those German state subjects who were never brought before a regular court. These facts were either hushed up, or the ministry refused to believe the reports.
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When the judicial leadership did rouse itself to lodge a protest, it acted so feebly that nothing ever happened.
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The very nature of the complaints meant that they could meet with no success. On the one hand, the objections must have appeared equivocating and contradictory, because it was very often the senior officials themselves who had actively supported the illegal practices of the police, for instance by close understandings or agreements, as were frequent in the Altreich, or by transferring persons who could not be prosecuted under penal law because of lack of evidence to the Gestapo with the “suggestion” of “Gestapo measures” (protective custody).
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On the other hand, despite all the complaints, there were no
material
objections to the police usurpation of criminal prosecutions against Poles and Jews; the reports were silent in particular on the establishment of the jurisdiction of the courts-martial, or else they explicitly refused to make any comment.
¹⁰⁴
The objections were principally restricted to formal aspects, that is, to arguments about jurisdiction, which any totalitarian power found it easy to overrule. It is clear that resignation became widespread in the judicial authorities once they saw that all their complaints and objections had borne no fruit. Later situation reports from the appeal court districts were restricted to reporting the complete
abdication
of the judiciary; they no longer contain complaints or pleas for assistance.
¹⁰⁵

The complaints of the judicial authorities were all the more justified, but similarly unsuccessful, because the police not only had increasingly removed from the judicial authorities the power to sentence
less serious
and
serious
offenses (in the extensive meaning applied at the time) by “non-Germans,” but also had extended their powers much further.

As in the Reich, for instance, the police themselves handled the punishment of the “crime” of breaches of employment contracts by Poles (and other “non-German” workers), namely, violations of compulsory labor regulations.
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The labor administration was powerless to intervene;
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this is shown by the fact that the subordinate police authorities were notified that from 1943 on, the police (Gestapo) had been instructed to “punish” violations of compulsory labor regulations by all foreign workers “with the consent of the plenipotentiary for labor allocation.”
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In quantitative terms, though, the fact that the police had gained control over everyday crimes by Poles and Jews was much more significant. Although the conclusive Decree on Penal Law for Poles of December 4, 1941, had exhausted the legal possibilities of justifying new areas of jurisdiction for the police once the wishes of the SS and police leadership had been taken into account, the police leadership in Berlin then took the steps common in the Altreich of applying extensive interpretation to the law and making use of actual or alleged loopholes in the law to evade existing regulations and gradually break out of the jurisdiction of the judicial authorities, a procedure that was made particularly easy by the Decree on Penal Law for Poles with its boundless umbrella clauses. If this method proved to be insufficient, it was still always possible to claim jurisdiction over Poles and Jews in criminal matters by overtly opposing the existing legal position.