"Non-Germans" Under the Third Reich (116 page)

III. The Elaboration of Discriminatory Law by the Courts: A Review of Sentencing Practice

Despite the elements of discriminatory legislation introduced into the criminal law system of the General Government by the regulations governing jurisdiction and procedure mentioned above, the very structure of the system still benefited “non-Germans” in some ways. The absence of overt discriminatory regulations and the relatively orderly system of criminal law had the effect of consolidating judicial practice in a way that never came about in the Annexed Eastern Territories. The legal structure in the General Government largely prevented the implementation of discriminatory practices by boundless interpretation of the regulations. Whereas in the Reich and the Eastern Territories,
völkisch
inequality was developed as an exception to the general legislation applicable to Germans, such an approach was not possible in the General Government with its largely “non-German” population, since by definition all statutory provisions were applied virtually exclusively to “non-Germans.” The purviews of the different branches of the law were also clearly distinguished. The decrees on special courts and German courts of November 15, 1939, and February 19, 1940,
⁷¹
explicitly established the direct application of the Reich Penal Code and the subsidiary continuance of Polish law, so that there was little room for controversy over the type and scope of the analogous application of German law such as had caused legal confusion in the Eastern Territories. These clear demarcations also had the advantage of avoiding conflicts of jurisdiction, so common in the Annexed Eastern Territories. Accordingly, the sentencing practice of the General Government followed a relatively moderate and consistent line, leaning heavily on the penal tenets of the Reich.

This is not to say that the general principle of treating Germans more leniently than “non-Germans” was not followed in the General Government, except when a deterrent effect was desired, such as economic crimes in wartime, bribery, and so on, and also in cases of race defilement. Here the rule was (long-term) imprisonment;
⁷²
death sentences were rare.
⁷³

In any case, Germans came before the courts very infrequently, since criminal proceedings against Reich Germans working in the German administration had always been referred back to the Reich (following approval by the governor general).
⁷⁴
Offenses committed by members of other German agencies (self-defense groups, SS and the police,
Sonderdienst
, etc.) were largely immune from the law, since they came under the appropriate special jurisdiction of the SS and the police.
⁷⁵
Excesses by German officials against “non-Germans” were judged leniently, if indeed they got as far as a charge, and a subtle difference was made between excesses against Jews and against Poles.
⁷⁶
This erosion of general criminal justice was naturally aimed at privileging German offenders and keeping them out of the “non-German” public eye. In a similar vein, the execution of judgments against Reich Germans did not take place in the General Government but exclusively in the Reich,
⁷⁷
since the presence of members of the German “master race” in General Government prisons could only be detrimental to the German image.

The other side of the coin was the principle of tightening up the treatment of “non-Germans.” The judicial administration played an important part in this practice, calling for harsh treatment in a great number of recommendations and exhortations. A circular from the Central Department of Justice to all the judicial authorities dated March 31, 1941,
⁷⁸
for example, called for severe action against economic crimes, especially illegal slaughtering; another, dated March 13, 1942,
⁷⁹
demanded the deterrent measure of punishing all serious cases of transport theft (on the
Ostbahn
railway) “at the place [of the crime] before the full special court” by the immediate imposition of the death sentence (“the very harshest measures”) in pursuance of section 4 of the Decree on Parasites upon the
Volk
. A similarly hard line was pursued by the police leadership, claiming that mild punishment, even imprisonment, had no effect at all on the Poles: Higher SS and Police Leader (HSSPF) Krüger demanded the infliction of heavy punishment, including execution, as a matter of principle.
⁸⁰
Such recommendations did not fall on deaf ears. The heaviest penalties were imposed for even relatively mild offenses, such as the death sentence for nine farmers in Lublin who had not delivered their agricultural produce,
⁸¹
the sentencing of a Pole who had evaded the obligatory construction service in Radom to six years’ imprisonment,
⁸²
or the death sentence passed on a Polish physician who had undertaken an abortion on a German woman in Kraków.
⁸³
Some courts had no hesitation in flouting the established law in individual cases and imposing severer penalties than were provided for by the statutes or illegally awarding such high court costs that they hurt the defendant more than any punishment.
⁸⁴

Despite such harsh practices in individual cases, the existing records of the special courts and German courts in the General Government and reports in the German newspaper of the territory, the
Krakauer Zeitung
, on the whole indicate a certain restraint that contrasts strongly with the deterrent and exterminatory justice of the Annexed Eastern Territories;
⁸⁵
press reports, it should be noted, contained only death sentences and the heaviest prison sentences, probably for their deterrent effect.
⁸⁶
There were still other reasons for this restraint, apart from the alignment of the justice system with Reich law. For although there were no direct organizational connections between the judiciaries of the General Government and of the Reich, so that the Reich Ministry of Justice was unable to exert political pressure and administrative controls, the General Government judiciary played a relatively minor role compared with the widespread police courts (about which more below), because the jurisdiction of the judiciary was confined and kept it out of the political firing line to some extent. In addition, the criminal courts were less subject to the pressures of the judicial administration and the NSDAP than were their counterparts in the Reich, since Governor General Frank, jealous of his autonomy and doubtless aided by his Reich experience, was at pains to keep out the influence of the Party on the administration of justice and also denied the Party a say in personnel policy.
⁸⁷
Lastly, politico-legal considerations were also operative in the relative lenience of sentencing practice in the General Government: unlike in the Annexed Eastern Territories, there was no push for the out-and-out extermination of “non-German criminals,” and the deterrent effect was balanced against the value to the Reich of maintaining manpower. The repressive policy of the political leadership in the Annexed Eastern Territories was characterized by the motto “hard but fair”; the propaganda slogan of Governor General Frank’s brand of justice was “hard but human.”
⁸⁸

This statement about relatively lenient judicial practice is true especially of the German courts, which adjudicated on more minor offenses and almost never passed sentences of hard labor and rarely of imprisonment; their sentences were mainly detention or a fine. Nor did the jurisdiction of the special courts against “non-Germans” ever equal the harshness of the special courts of the Annexed Eastern Territories. Although no criminal statistics or lists of judgments enforced in the General Government are available, a sample of the judgments of the special courts and press notices of the period suggests that the administration of justice of the special courts was relatively lenient in comparison with the totalitarian terrorizing justice of the Annexed Eastern Territories.
⁸⁹
This does not hold for the severity of the penalties in absolute terms, but only for the number of death sentences passed. Conclusions about the sentencing practice of the other special courts can only be drawn on the basis of the general political circumstances, with which court practice probably ran largely parallel. Thus, we may presume that the special court of the Lublin district, for example, which had always taken the strongest anti-Polish measures under its governor, Ernst Zörner, pursued a very harsh judicial line, and this is doubtless also true of the Special Court of the Warsaw district, whose governor, Dr. Ludwig Fischer, also took a very strong line. Kraków was something of an exception, also as regards the administration as a whole, since in general more moderate conditions prevailed in the administrative capital than in the other districts. The official press reported “only” seventy-three death sentences between 1939 and 1941. According to internal reports, however, the actual number was very much higher, since only those sentences were published that would serve as a deterrent and an example.
⁹⁰

Regarding punitive practice in the Warsaw district, on March 1, 1940, a total of 33,000 criminal proceedings were pending before the German and Polish courts,
⁹¹
including 15,000 at the Warsaw Special Court in April 1940. Up to this time, as the head of the Justice Department in the Office of the Governor General stated, “only” 15 death sentences had been passed, “for murder, theft, and pickpocketing.”
⁹²
The Warsaw Special Court was reported to have imposed 36 death sentences in 1939 and 1940,
⁹³
whereas in 1941 their number was at least 20. According to reports by the Warsaw district governor, as many as 498 trials were brought before the special court in 1942, 329 of which resulted in convictions, including 192 death sentences. Of these last, 187 were passed on Jews.
⁹⁴
The death sentence statistics for the other special courts in 1940/1941 respectively are as follows: Radom, 3/7; Kielce, 7 (1940); Czenstochau (Cz
stochowa), 7/5; Zamo
, 6/9; Rzeszów (Kraków district), 28/4; Kraków, 17/20 (including 1/6 for illegal possession of firearms).
⁹⁵

A review of all the rulings of these special courts indicates that a death sentence was generally passed on all serious crimes involving violence, such as murder, manslaughter, armed robbery, resistance against the state authority, and major theft, e.g., mail robberies. Economic offenses, especially illegal slaughtering, were, with few exceptions, punished by heavy prison sentences (a minimum of two years as a rule), and in the severest cases by death, when black marketeering (e.g., sale of the slaughtered animals) was also involved. Cases of theft received between three months’ and eight years’ imprisonment, mail and train theft up to fifteen years; poaching and other forestry offenses generally carried up to one year’s imprisonment, whereas failure of Jews to wear the yellow star attracted penalties ranging from a 150 złoty fine to three years’ imprisonment or even penitentiary. Currency offenses, forgery, fraud, receiving of stolen goods, and embezzlement generally attracted fines or several months’ imprisonment, or one or two years’ penal servitude in serious cases. Sexual offenders generally received a penitentiary term. As in the Reich and the Annexed Eastern Territories, sentencing became markedly harsher from 1942 on, probably related to the resettlement of Jews that began in that year.