"Non-Germans" Under the Third Reich (113 page)

These restrictions on the Polish judicial administration were supplemented by wide-ranging controls over the German judiciary at both the personal and technical levels.
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Newly instated Polish law officers were obliged to take an oath of loyalty and became subject to the immediate supervision of the district governor (justice department). The regular business of the courts and the personal reliability of the law officers were also supervised, but not the actual administration of justice or the impartiality of rulings.
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A certain extraordinary remedy was instituted, however, in that every decision passed by a Polish court, even when unappealable, could be reviewed by the German superior court at the instigation of the head of the justice department in the office of the district governor, if the case touched upon “the greater public good.” The superior court either brought the case before German jurisdiction or judged it itself without being bound to rules of procedure.
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The range of rulings that could be reviewed in this way was extremely broad. In “particularly important cases affecting the interests of the German people,” unappealable rulings by Polish courts dating even from before July 31, 1938, could be reviewed.
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Nevertheless, there was a certain limitation of the right of review, in that the application for review had to be submitted within six months of the date the ruling became final (with the exception of those that had become final before July 31, 1938, which were not subject to a time limit).
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On the whole, however, supervision of the Polish judiciary was not highly efficient. Political control of the system depended on specific spot checks, and the effect could never be as sweeping as the incorporation of all “non-Germans” into the German legal system. Nor was the German judiciary without its technical problems: the chronic overload of the justice authorities, shortage of staff, and language difficulties made it impossible to implement the right to review Polish rulings in any significant measure.
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II. The Adoption of the Principles of Reich Law

The second task of the judicial administration in the General Government, that of developing a German judicial administration, was a very difficult one in view of the inefficient supervision of the domestic judiciary. Given the administrative autonomy of the General Government, there was no obligatory plan to carry over the Reich system of organization and jurisdiction across the board, but the creation of a completely new judicial system was felt to be too burden-some. The compromise that was reached was to apply the basic principles of the Reich judicial administration and to use that of the General Government to fill in the details.

1. Supervisory and Control Powers

The foremost principle taken over from the Reich was that of authoritarian leadership, expressed in the form of vast supervisory and control measures. These involved questions of interpretation above all, to ensure that individual court rulings were consistent with the current policy. The personality of the individual in charge of the Justice Department in the office of the Governor General, greatly aided by his experience at the Reich Ministry of Justice,
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ensured the conditions for a strict control policy and a hard line against the Poles. Since the control measures of the Reich Ministry of Justice were not applicable in the General Government, the Central Department of Justice opted to erect its own system of instructions and directives on the model of the Reich administration. These enactments served to clarify and the individual provisions to provide commentaries, but they also introduced completely new regulations, in which capacity they were doubtless intended to more or less replace the commentaries issued by the Reich, especially regarding the so-called War Penal Code.
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This intense regulatory activity was due not only to the basic doctrine of the need for supervision of the judiciary, but also to the confusion occasioned by the numerous penal provisions of the governor general’s decrees (regulations against Jews, for example),
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by the volume of Reich criminal law to be applied directly in the General Government,
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and in relation to the procedural law practiced by the courts,
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and there was a strong need for centralized regulation. The relative clarity of the situation in the General Government doubtless allowed these administrative measures to be complemented by oral instructions at meetings within the individual courts and with the supervisory authorities and through informal exchanges of information between the judges themselves. Such informal control was probably more effective than the control measures in the Reich, since the limited number of German judges and lawyers—barely one hundred in 1940
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—working at a considerable distance from one another with very poor communications, probably gave rise to a greater closeness among law officers than in other Reich territories and a greater need for a unified control.

2. Review of Unappealable Decisions

The supervisory authorities also reserved for themselves the right to intervene directly in the administration of justice, however. In accordance with the basic Reich principles on the right to an extraordinary appeal by the Reich attorney general against a final and absolute decision,
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any such ruling by a German court in the General Government could be reviewed within six months of its becoming legally effective if there were “serious doubts as to the soundness of the decision” (sec. 32, Decree on German Jurisdiction in the General Government of February 19, 1940).
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The right to appeal was vested not in the chief of the prosecuting authority at the German superior court, as the Reich regulations provided, but (reflecting the control powers of the judicial administration) in the central authority itself, that is to say the head of the justice department in the office of the district governor. Whereas, however, in the Reich the court defined by the law was guaranteed insofar as the Reich Supreme Court decided on the basis of an extraordinary appeal, in the General Government the control exerted over the judiciary was total, for a special court decided on the exceptional opposition in penal cases and a German superior court in civil cases, designated each time by the Central Department of Justice in the office of the governor general, with a view to ensuring that the decision would go in the right direction. Nevertheless, for reasons of staff shortages or because the decisions by German courts were in any case harsh enough, little use was made of this exceptional remedy.

One such rare case was the use of an exceptional opposition by the German Superior Court in Kraków on June 18, 1943, when it condemned a Polish physician to death for practicing an abortion on a German woman (sec. 218, Penal Code), after the lower court had sentenced him to two years’ imprisonment.
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The principles imported from the Reich were also applied to settle the prerogative of mercy, in order to bring home the strong position of the governor general as the Führer’s representative. As early as 1940 Hitler granted Governor General Frank the prerogative of mercy, although the act was not made public.
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On the strength of this delegation, the governor general issued a decree on March 16, 1940, requiring that all death sentences passed by the German courts and the summary police courts of the General Government be submitted to him.
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From mid-1940 on, however, the police were less and less willing to comply with this order on account of the differences between Governor General Frank and Higher SS and Police Leader (HSSPF) Friedrich Wilhelm Krüger (see below), for they executed the death sentences pronounced by the summary police courts in the concentration camps, which were totally under the control of the SS, and in police prisons, controlled by the Security Police. A pardons commission composed of the deputy governor general (the head of the Governor General’s Office, State Secretary Joseph Bühler), the higher SS and police leader (HSSPF) (Krüger), the head of the Justice Department in the office of the governor general (Kurt Wille), and the head of the Burg Chancellery (Franz Keith), as reporter, acted as an advisory body in court decisions to grant a reprieve.
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Execution of a judgment was possible only after the governor general had declared that he would not exercise his prerogative of mercy.
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Otherwise the appropriate Reich regulations governing mercy applied.
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The political leadership, that is, the governor general, further claimed the right to review all judgments passed by the Wehrmacht courts, in his capacity of sole representative of the Führer.
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Frank was unable to have his way here, since the Wehrmacht remained adamant about retaining sole jurisdiction and such a prerogative on Frank’s part would have conflicted with the prevailing regulations under which Hitler as Führer and Reich Chancellor alone possessed such a prerogative (which he could delegate).
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3. The Structure and Organization of the German Judiciary

As we have mentioned, the judicial organization in the General Government was structured fundamentally on principles taken over from the Reich. A number of simplifications were introduced, however, and the structuring of the supervisory apparatus went its own way in an attempt to bring the traditional forms of justice into line with the principle of administrative uniformity.

Whereas in the Reich a three- or four-tiered structure was the rule (court of first instance, district court, court of appeal, supreme court), the General Government made do with a two-tiered court organization. On the basis of the relevant Decree on German Jurisdiction in the General Government of February 19, 1940,
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which produced a regular judicial structure in as little as a month,
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the lower echelon of German jurisdiction consisted of the German courts (in Kraków, Rzeszów, Lublin, Chelm, Radom, Petrikau [Piotrków Trybunalski], Warsaw, and
yrardów),
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which with their single judge corresponded approximately to the courts of first instance. The higher level consisted of four German superior courts established at the official seat of the district governor (Warsaw, Lublin, Radom, Kraków, and from 1941 on, Lemberg [L’vov]).
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These courts, each of which had a panel of three judges, corresponded approximately to the district courts. The subordinate position of these German courts in relation to the special courts is illustrated by the fact that, unlike the regular judiciary in the Reich, they did not have their own prosecuting authority, and the business of the public prosecutor was accomplished by the prosecution authority attached to the special courts.

The special courts, which were established on the Reich model, took over the major part of the administration of justice with respect to the local population, as was common in “alien territory.” These courts were among the first to be set up. Their chambers were composed of three judges, or one judge in simple cases.
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As in the Annexed Eastern Territories, special courts were set up from the very start of the military occupation, in September 1939, in the region that was to become the General Government (Kraków, Radom, Czenstochau [Cz
stochowa], Kielce, Petrikau, Warsaw),
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subject to all the pertinent Reich regulations on special courts.
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With the end of the military occupation, a decree on special courts issued by the governor general and dated November 15, 1939, replacing that on the military administration of September 5, 1939,
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maintained the application of the Reich special-court regulations. The special courts were now a part of the judicial system of the General Government. In parallel with the Reich, where a special court was set up in each court of appeal district, a special court was established at the official seat of each district governor (Warsaw, Radom, Kraków, Lublin, and in 1941, Lemberg). The special courts created in September 1939 that were not situated in the district capitals of Kraków and Radom continued as independent divisions of the local special court;
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further divisions were established in Rzeszów (for Kraków), Zamo
(for Lublin),
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Ternopol’, and Ivano-Frankivs’k (for Lemberg).
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