"Non-Germans" Under the Third Reich (114 page)

The direct supervision of the judicial authorities was conducted by the district governor (department of justice); the highest supervising authority was the government of the General Government itself.
⁵¹
The principle of authoritarian leadership, embodied by the district governor as head of all the administrative authorities of the district, was breached once again, however, because the two-tiered structure of the supervisory authority was too complex for the small number of German law officers;
⁵²
all important questions, including personnel matters, were in any case dealt with at the Central Department of Justice in the office of the governor general.
⁵³
At the end of 1940, in line with the general trend toward centralization, the German judicial authorities, except for the public prosecutor, were subordinated directly to the office of the governor general (Central Department of Justice),
⁵⁴
where they functioned as independent outposts of the General Government authority in the outlying districts.
⁵⁵

Some remnant of the principle of administrative uniformity remained for the justice departments of the districts by virtue of their function as relay and information centers for all the judicial authorities of the district. They served as collection points for correspondence between the Central Department of Justice and the courts, so that all decrees, instructions, and directives issued by the Central Department of Justice passed through these departments on their way to the lowest judicial authorities—a tight organization, which precluded all direct communication between the central office and the courts, and which the justice departments guarded jealously. This was even truer for communications traveling upward; in that case the justice department intervened as central agency for all reports, proposals, and complaints from the courts to the Central Department of Justice.
⁵⁶

An example of the significance of the judicial administrations of the districts as information centers is provided by the obligation to send in reports. Unlike the court of appeal presidents and chief public prosecutors in the Reich territory, the heads of the judicial authorities of the General Government were under no obligation to report directly to the central office. Rather, the justice departments of the district offices had to send monthly “district reports” on the number of meetings, incoming complaints, matters dealt with, personnel questions, and so on to the Central Department of Justice of the General Government. These reports were compiled from the progress reports of the various local justice authorities.
⁵⁷
Certain differences existed as regards the public prosecutors’ obligation to report.
⁵⁸

B. Criminal Law as the Principal Tool of Discriminatory Law (Special Law) against “Non-Germans”

I. The Basis of the Substantive Penal Law

Substantive criminal law in the General Government was also based on the Reich model, since in spite of its constitutional status
¹
the General Government was considered politically as home territory,
²
being, in the words of a circular issued by the Central Department of Justice, “attached for eternity to the zone of power of Greater Germany.”
³
As a result of this close connection with Reich law, which hindered, to say the least, the enactment of explicit discriminatory regulations, the development of penal law in the General Government was relatively straightforward, and it was possible to avoid many of the difficulties encountered by the judiciary of the Annexed Eastern Territories.

In the first months of the occupation, a legal vacuum existed in the General Government. But the region was spared the problems of analogous application of German law to “non-Germans,” which dominated practice in the Annexed Eastern Territories,
⁴
since as early as fall 1939 the governor general had issued a number of decrees that avoided the use of vague umbrella clauses and legalization of the principle of analogous application. The crucial Decree on Administration of Justice in the General Government of October 26, 1939,
⁵
issued the very day the civil administration was established, fixed the principle of separation of the German and the Polish legal systems by placing Germans (German citizens and German nationals, later also called
deutschstämmige
, or persons of German descent)
⁶
under German law in all their legal relations (the “principle of ethnic affiliation,”
Personalprinzip
).
⁷

“Non-Germans” (Poles, Jews, Ukrainians, etc.) were liable to German jurisdiction whenever German interests were affected. They thus came before a German court for any criminal action that in any way affected German concerns and for other serious offenses,
⁸
or indeed in principle for any criminal offense whatsoever.
⁹
By order of the Central Department of Justice, Jews were always tried by German courts in penal matters; otherwise they came before Polish courts.
¹⁰
Except for the reservations just mentioned, other “non-Germans” were left to the mercies of the local justice system.

“Non-Germans” prosecuted before the German civil courts of the General Government did not have to fear the harsh discriminatory measures of the Decree on Penal Law for Poles, however, since this discriminatory law applied only to Poles with protected status in the Eastern Territories and the territory of the Reich,
¹¹
and the General Government came under neither head. Similarly, Poles from the Annexed Eastern Territories who became liable to punishment in the General Government were not subject to this decree.
¹²

General German penal law was to be directly applied by the civil courts of the General Government. The relevant Decree on the Administration of Justice in the General Government of October 26, 1939, spoke only of “German jurisdiction” and did not authorize the analogous application of German law. Similarly, the terms of the Decree on Special Courts in the General Government of October 15, 1939,
¹³
and the subsequent Decree on German Jurisdiction in the General Government of February 19, 1940,
¹⁴
expressly established the validity of the German general criminal code, which intrinsically applied to “other persons” than German citizens and German nationals.

The special criminal law regulations of the Reich, too, were applied directly throughout, although their formal adoption was not total. Certainly in the early days, the political leadership still proclaimed the principle that whatever benefited the community was right; the governor general made it known that over and above all “formulated texts,” the judges were always to decide as the Führer would decide: they were not to abide by “the formal letter of a previously formulated system” but by the “strong eternal law being created on the path of national destiny.”
¹⁵
But as we shall see, the courts hung on to these “formulated systems,” that is, to Reich penal law, because they were happy to have clear regulations and hesitated to venture onto the slippery slope of analogous application with all its political and ethnic ramifications, and for which the excesses of the discriminatory legislation in the Eastern Territories served as a horrific example. Thus, basically the entire substantive penal code of the Reich was applied in the General Government, including the Juvenile Court Law,
¹⁶
discriminatory legislation such as the Treachery Law of December 20, 1934, the Decree on Parasites upon the
Volk
of September 5, 1939, and the whole section of the penal code dealing with commercial offenses. The race laws were formally introduced, on account of the alleged high frequency of racial offenses between (ethnic) Germans and Jews,
¹⁷
as were the Reich regulations on habitual offenders.
¹⁸
Further special penal law regulations were promulgated in the governor general’s decrees, above all with respect to commercial offenses.

This broad application of the general penal law nevertheless did not preclude the enactment of regulations discriminating against “non-Germans.” A number of regulations issued overtly under special law existed, but they were few in number and limited to a small number of offenses. An example was the infamous Third Decree on Residence Restrictions in the General Government of October 15, 1941,
¹⁹
under the terms of which Jews who left the assigned “residential area” (i.e., the ghetto) without permission, and any who afforded them a hiding place, were liable to the death penalty.
²⁰
What is more, this decree was interpreted extensively by the Central Department of Justice to the effect that “on account of the political, criminal, and hygienic risks occasioned by Jews,” anyone helping Jews who had not “left” the ghetto was analogously punishable by death (sec. 2 of the Penal Code),
²¹
because according to the “sound thinking of the people,” this was no more than their just deserts. An extensive interpretation was similarly called for when young children below the age of criminal responsibility left the ghetto, this being interpreted as incitation by the parents to “leave without authorization” and punished by death.
²²
The judiciary, which preferred to leave such “offenses” to the police and sometimes refused to enforce the decree,
²³
was constantly admonished to adopt a harsher attitude.
²⁴

It is doubtful that the courts saw many of these cases, however, for the officials of the internal administration responsible for Jewish questions maintained that the procedure “to the point of liquidation” was too slow and burdened by too many formalities:
²⁵
“rapid and uncomplicated shooting” of Jews was possible only by way of the police courts, a necessary recourse because “the Führer has charged the police with the final solution of the Jewish question.”
²⁶
In such cases the police intervened more and more frequently, shooting fleeing Jews without further ado on the strength of a secret order (not preserved) issued by the commander of the regular police in Kraków.

Further elements of discriminatory legislation in the penal code of the General Government are to be found in the procedural regulations. Here the attentions of special discriminatory law were shifted from the level of substantive law to that of jurisdiction and procedure. There was a reluctance to enact substantive regulations under special law for political and economic reasons, since the German administration depended on the cooperation of the Poles and wanted to avoid too blatant discrimination in law. Discrimination could be practiced more discreetly and easily through matters of organization and jurisdiction than through the public promulgation of special law. The special courts serve as striking examples of such covert discriminatory legislation.

II. The Situation of “Non-Germans” under Procedural Law

1. The Special Courts as Instruments in the Struggle against “Non-German” Offenses

The idea of the Reich administration that jurisdiction through the special courts, which it understood to be “the mainstay of criminal law,”
²⁷
was the major and ideally the sole instrument of penal prosecution against “non-German” and other offenders was not fully realized in the Reich, since as the youngest branch of the general administration of justice, such discriminatory jurisdiction existed only side by side with, and not over, the jurisdiction as a whole.

In the General Government, where it was possible to build up an administrative system more or less from scratch and the principles of the Reich held less sway, these ideas were able to flourish much more freely from the start. The population of approximately 10.5 million people living in the General Government (as of 1940) was 90 percent “non-German.”
²⁸
It was primarily for those “non-Germans” that special-court jurisdiction was created, to demonstrate the severity and power of German justice, and it thus served as the major instrument in the realization of
völkisch
inequality before the law.

a. The Competence of Courts

The virtually exclusive responsibility of the special courts for dealing with criminal acts by “non-Germans” was originally guaranteed by the introduction of the opportunity principle. Since their institution in mid-September 1939, the special courts had operated side by side with the Wehrmacht courts and the summary courts of the SS and police;
²⁹
they adjudicated in all offenses that the public prosecutor deemed it “necessary” to punish by a special court (sec. 2 of the Special Courts Decree of September 5, 1939).
³⁰
That this was understood to refer primarily to offenses by “non-Germans” goes without saying. The special courts remained the chief instrument in the implementation of discriminatory law against “non-Germans” in the regulations later issued by the civil administration. Great care was taken to avoid promulgating special law openly, and the governor general’s Decree on Special Courts in the General Government of November 15, 1939,
³¹
was universally valid and contained no special substantive provisions for particular groups, in contrast, say, to the Decree on the Implementation of German Penal Law in the Annexed Eastern Territories of June 6, 1940,
³²
or the Decree on Penal Law for Poles of December 4, 1941.
³³
Special regulations were introduced, rather, by way of abstract provisions. Under section 2 of the decree of November 15, 1939, the special courts were responsible for all offenses whose adjudication required special-court jurisdiction “by virtue of the seriousness or reprehensibility of the offense or the public outrage prompted by it,” a provision that reproduced almost word for word section 14 of the Jurisdiction Decree enacted under Reich law on February 21, 1940.
³⁴
Since the treatment of particularly serious or reprehensible cases by a special court was intended above all to intimidate the general population, it is logical that it should be aimed at “non-Germans,” so that they would learn what German justice was all about. The head of the Central Department of Justice openly stated that the general clause referring to particularly serious or reprehensible acts was intended to put “non-German” offenders in the hands of the special courts, which were to “intervene energetically in the spirit of the German sense of order without soft sentiments toward criminals.”
³⁵
Where “non-German” offenders were concerned, the range of such acts was not limited to so-called serious criminality but included moderate crimes and economic offenses, in order to bring as many charges as possible before the special court. The special court further handled all criminal activity that the governor general’s decrees put within its jurisdiction.
³⁶
Since the majority of the governor general’s decrees contained discriminatory provisions relating to Poles, Jews, and other “non-German inhabitants” of the General Government,
³⁷
it is clear that the very great majority of prosecutions before the special court involved “non-Germans.”