"Non-Germans" Under the Third Reich (112 page)

As in the Annexed Eastern Territories, the question arose whether or not German law should be made to apply to “non-Germans.” The decision made was not to introduce German law on a general basis. In contrast to the blind, radically ethnic activism in the Annexed Eastern Territories, economic considerations were the main motive force here. The General Government was perceived as a territory to be exploited for the benefit of the Reich. In order to keep the economic machine rolling (and as the office of the governor general made no bones about proclaiming), there was no question of displacement, repression, or Germanization campaigns, the declared aims of administrative policy in the Annexed Eastern Territories. Thus, exclusively economic rather than political considerations motivated the decision to refrain from imposing a legal system on the Poles from outside; it was expedient to cause as little unrest and change among the local population as possible.
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Given that the German statutes were not to apply directly to Poles, three possibilities existed. The first, which was the line of the Party leadership, the SS, and the police, was not to give the country any legal system at all, to rule purely on the basis of police constraints. The second possibility was to apply German law “analogously” whenever the political situation required and to practice discriminatory law against “non-Germans” at the discretion of the judges or on the basis of secret directives, as was the administrative practice in the Annexed Eastern Territories. Third, there was the possibility of maintaining the established territorial law and limiting administrative intervention to its supervision. This last alternative best suited the German desire to maintain the economic activity of the region with as little disruption as possible. The official line was that extending the benefits of German law to the 12.5 million Poles, Jews, and other “non-Germans” of the General Government was neither desirable nor possible.
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The maintenance of the domestic legal system also fitted most closely into the political concept of a “protected area” under German sovereignty populated by helots subservient to the German Reich. Governor General Hans Frank reveled in the dream of a colonial imperial legal system borne by the consciousness of German probity. The Poles, too, should have this consciousness, which should “spread its flavor to the whole community”: “I put my confidence in these German judges.” In a speech marking the inauguration of German jurisdiction, he spoke explicitly (“let us now say it out loud”) of a primacy of German judicial practice over “native” practice, which logically therefore must be placed under German supervision.
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This form of “supervisory administration”
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was thus defensive in character, allowing the domestic judicial administration to persist in principle
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and limiting itself to taking care of the interests of the Reich and of German citizens and German nationals.
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The organization and procedures of the judiciary thus had two facets: a system of legal protection available exclusively to Germans and a supervisory and control apparatus over the Polish judicature. Unlike the judicial administration in the Annexed Eastern Territories, the function of the supervisory authority was in principle not to include “non-Germans” in the German legal system and then to subject them to discriminatory law; it remained, so to speak, one step ahead, imposing supervisory regulations on the “non-German” judiciary in individual cases. All the while, care was taken to keep the supervisory activity of the German administration as discreet as possible in order to maintain the appearance of an independent Polish judiciary. The continued existence of Polish jurisdiction was the occasion for a great propaganda effort stressing the autonomy of the Poles in their own affairs.
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In his press releases to the Polish people, Governor General Frank in particular took great pleasure in “showing that the Germans do not interfere in internal Polish affairs” and that “the Polish people can live with the law that is right for them.”
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But there was no question of two legal systems coexisting side by side, and certainly not two systems with equal status. For the political leadership it was clear that the domestic legal system, now subject to the political condition of the “security and grandeur of the German Reich,” could not have the same scope as before. Polish jurisdiction was thus allowed to operate only insofar as it did not conflict with German interests; in the event of a conflict of interests, it had to yield, in the same way as “anything prejudicial to the fabric of German power in the region.”
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At the same time, this style of unequal treatment of “non-Germans” still left a certain legal status intact, even if of a lesser quality, in stark contrast to the complete lawlessness of the “rationalized totalitarian organization” in the Annexed Eastern Territories.
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The legal foundation of these political objectives was constituted by the Decree of the Führer and Reich Chancellor on the Administration of the Occupied Polish Territories of October 12, 1939,
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which provided the sole basis of all subsequent special regulations: its section 5 empowered the governor general to decree autonomous regulations without being bound to the approval or the administrative rules of the Reich administration.

The continuance of Polish law was provided for in section 4 of the decree, under the terms of which the former law remained in force, “provided it did not conflict with administration by the German Reich.” The purview of German interests was narrower here than in the Annexed Eastern Territories, where the out-and-out ethnic struggle lent political significance to “even the small and insignificant affairs of everyday life.”
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It went without saying that German interests included the politically most important areas
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and everything touching on German concerns, both general and individual; first and foremost among these was the administration of justice, which relegated Polish jurisdiction to a secondary role.
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The particular style of judicial administration in the General Government,
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which for the first time anywhere fully implemented the National Socialist principle of segregating Germans and “non-Germans,” was something of a novelty, for no model existed for such a combination of a special administration concerned with German interests and a supervisory administration over the local jurisdiction. The governor general’s autonomy made the judicial administration of the General Government completely independent of the Reich. The head of the Department of Justice at the governor general’s office and the president of the German Superior Court did not participate in the regular meetings of the highest justice officials of the Reich at the Ministry of Justice, nor were they on the mailing list for the directives, recommendations, and other control measures issued by the ministry, apart from personal connections and avenues of information through the earlier relations of the senior law officers and the ministry.
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The judicial administration of the General Government was under no obligation to send the central Reich administration business reports or situation reports. The absolute highest authority for the judicial authorities of the General Government was the (Central) Department of Justice. Thus, a self-contained judicial organization came into being, which, though it had many features in common with its counterpart in the Reich, possessed its own characteristic stamp in the form of even greater centralization based on the principle of “unity of the administration.”

A. The Function and Structure of the German Judiciary

I. Supervision of the Polish Judiciary

The supervision of the Polish judiciary, which essentially maintained its domestic staff,
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paralleled the structure that had been set up in the colonial territories to oversee the native judiciary. Its purpose was to ensure the absolute priority of the interests of the “German community” (whatever served the community was right)
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and to eliminate from Polish procedural or substantive law all elements that in any way conflicted with “the grandeur of the German Reich.”
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There was, however, no need for detailed discriminatory or control regulations governing Polish jurisdiction, since this came about automatically with the priority of the German legal system. Polish jurisdiction was stripped of all important responsibilities and subordinated to the German system, thus ensuring adequate control at all times.

Although Polish law and Polish jurisdiction remained intact (after a brief interruption at the beginning of the war), their role was only subsidiary. Section 1 of the Decree on Polish Jurisdiction of February 19, 1940,
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laid down the principle that Polish courts were competent for a case only if it did not fall within the jurisdiction of a German court. A similar provision held later for the domestic jurisdiction of Galicia.
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The judicial organization in Poland remained basically unchanged:
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the courts were organized around a three-tiered structure: the
Burggericht
, which was generally composed of a single judge and corresponded approximately to the
Amtsgericht
(court of first instance); the
Bezirksgericht
(district court), which acted as court of appeal and court of last resort for the
Burggerichte
, corresponding approximately to the
Landgericht
; and one
Appelationsgericht
(court of appeal) for each district, corresponding approximately to the
Oberlandesgericht
(court of appeal).
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The Supreme Court in Warsaw (as a court of cassation) ceased to function. The reconstruction of the Polish judicial apparatus was undertaken from the bottom up: already in October 1939, following the removal of “anti-German” persons and Jews, the military commanders once again permitted the
Burggerichte
and
Bezirksgerichte
to operate, and these remained active during the period of civil administration.
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These courts regained their former importance relatively quickly, and according to the official reports were back to their prewar position by 1942.
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The procedure of the Polish courts remained based on Polish law but underwent a number of changes that eliminated certain constitutional elements; thus, the activity of the labor courts and lay judges was curtailed, as was that of the administrative jurisdiction.
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Pending procedures were discontinued and declared null and void, and judgments under appeal were rendered final.
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A special feature that very clearly brought out the principle of the segregation of Germans and “non-Germans” was the provision that Germans should not appear before a Polish court as witnesses; they could be examined only by way of judicial assistance through the German court.
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In line with the political aims of the German authorities, the jurisdiction of the Polish courts was restricted most heavily in criminal cases, which were generally handled by the German courts. Following the issue of the Decree on the Transfer of Judicial Matters in German and Polish Jurisdiction of February 19, 1940,
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criminal cases pending as of that date were transferred
ipso jure
to the competent German prosecution; rulings of the Polish authorities were ineffective where German jurisdiction was operative. The German public prosecutor could at his discretion hand over a criminal case to the Polish judiciary, however, retaining the right to reclaim it at any time without explanation.
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The intention was doubtless to get rid of insignificant cases that were of no interest to the German judiciary; at least, this may be deduced from a circular instruction
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issued by the Central Department of Justice in the office of the governor general dated October 14, 1941, according to which no transfer could be effected if the accused had a criminal record, and especially if he was a habitual offender within the meaning of section 20a of the Penal Code. The decision to transfer was therefore always contingent on previous convictions. In the later years of the war, an increasing number of minor penal cases were passed over to the Polish judiciary in order to relieve the caseload of the German authorities.

Polish jurisdiction remained effective for all civil litigation between Poles and Jews among themselves. The German courts took over the case if either of the parties was a German citizen or a German national.
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Civil cases subject to German jurisdiction that were pending before the Polish courts were therefore passed
ipso jure
to the competent German courts. Any doubts as to the appropriate jurisdiction were settled by the German court in the first instance and the German Superior Court in the second instance, and this decision was binding. There was no transfer in the reverse situation, that is to say when a case subject to Polish jurisdiction was pending before a German court. Rather, the case was dropped with the observation that it did not come under German jurisdiction.
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