"Non-Germans" Under the Third Reich (236 page)

42.
Prussian Supreme Court, Berlin,
Deutsches Strafrecht
(1935): 50.

43.
See, e.g., the ruling by the People’s Court of March 18, 1942,
DR
(1942) (A): 721 (no deprivation of civil rights under sec. 33 of the Penal Code in the case of Jews, who “in the conviction of the entire people had absolutely no rights”); Reich Supreme Court, February 18, 1941,
DR
(1942) (A): 429 ff. (two Poles who had desisted from an attempted rape in response to appeals by the victim were not granted indemnity in accordance with sec. 46 of the Penal Code); indeed, the death penalty was not ruled out “on account of willful exploitation of the war situation” under sec. 4 of the Decree on Parasites upon the
Volk
of September 5, 1939 (
RGBl.
I 1679); Reich Supreme Court, July 20, 1939,
DJ
(1939): 1532 (extension of the provisions on measures for prevention of crime and reform of offenders—in this case castration in accordance with sec. 42k of the Penal Code—to criminal acts committed in foreign countries, in spite of the fact that penalization of such acts was limited to specifically named cases [Penal Code, sec. 4, pars. 2, 3]); Reich Supreme Court, January 8, 1940,
DJ
(1940): 298 (admissibility of the additional penalty of independent confiscation of property in accordance with sec. 40 of the Penal Code when the offender was Jewish, even after his death, although sec. 40 of the Penal Code dealt only with confiscation of the tools used for the crime or objects produced by the crime and stipulated the
ownership
of the objects by the offender as a necessary condition; see Schönke, Penal Code, 1944, sec. 40, Erl. III 2).

44.
For more details, see H. J. R. Bepler, “Übersicht über die Rechtsprechung der deutschen Gerichte zur entsprechenden Anwendung von Strafgesetzen,”
JW
(1938): 1553–70.

45.
RGSt 74, 45; similarly, see RGSt 70, 175, 362.

46.
See Danzig Special Court, June 20, 1941,
DJ
(1941): 945.

47.
RGBl.
I 2319.

48.
RGSt 74, 45.

49.
See Reich Supreme Court, May 28, 1937, RGSt 71, 221; Special Court, Berlin, November 20, 1941,
Deutsches Strafrecht
(1942): 55 f.

50.
Halle District Court, September 12, 1941,
DR
(1941) (A): 2662.

51.
Danzig Special Court, July 8, 1941,
DJ
(1941): 945.

52.
Reich Supreme Court,
JW
(1938): 167.

53.
Reich Supreme Court,
DR
(1943) (A): 581.

54.
Itzehoe District Court, January 2, 1942,
Deutsches Strafrecht
(1942): 59 (a Polish worker had stolen clothes from her employer’s wife).

55.
Quoted from the situation report of December 10, 1940, by the chief public prosecutor of Nuremberg (BA R 22/3381).

56.
The Reich minister of justice reproached a municipal court (
Amtsgericht
) ruling of April 24, 1942, e.g., with not having taken “typically Jewish” behavior into account in the case of a Jewish pensioner sentenced to a fine of RM 30 or ten days’ imprisonment for not having added her Jewish first name Sara in the telephone book entry. The decision showed “incomprehensible lenience.” The idea that legal practice was not yet uniform in such cases, i.e., that the accused could not be sure to be convicted, did not justify the lenient punishment. This was clearly a case of “Jewish subterfuge,” which “amazingly” had only been understood bit by bit late in the day (
Richterbrief
of October 1, 1942, Ziff. 5, BA R 22/4002). The conviction of two Polish women for theft was designated an “outrageous mistake” (
Richterbrief
no. 5 of February 1, 1943, BA R 22/4002).

57.
Richterbrief
of October 1, 1942, Ziff. 4 (BA R 22/4002).

58.
Noam and Kropat,
Juden vor Gericht
, 129 ff.

59.
Ibid., 136 ff.

60.
And further:

The people are discerning and convinced that it is unjust to treat an Aryan who has molested a German woman in a really objectionable way more harshly than a Jew who has committed the same act. In addition, it is very doubtful that the Jew will not be punished for an attempted crime, that is for attempted racial defilement…. Faced with the suspicion of such a serious criminal act on the part of a Jew, who nevertheless enjoys his freedom, the Court of Lay Assessors finds it unjustifiable to keep in custody an Aryan prosecuted for a much less serious act, especially since there is now less reason to believe that he will abscond. For in all his rulings, the judge must consider the natural sense of justice of the German people. The release of the accused, a family father who has acted most reprehensibly, would cause a public stir. But this would be as nothing compared with the inevitable indignation were he to remain in custody while a Jew guilty of racial defilement is allowed to go scot-free—a Jew who, in the same place as the Aryan, has sullied the honor of German women and thus of the German people. For this reason the Court of Lay Assessors, applying the law conscientiously and in the spirit of popular sentiment, has also withdrawn the arrest order against the Aryan. (Noam and Kropat,
Juden vor Gericht
, 136 ff.)

61.
For an overview of the legal practice in martial law, see Brettle,
DJ
(1942): 431 ff.; see also Fölsche,
DR
(1943) (A): 1117 ff.; and Steinert, in Frank,
Nationalsozialistisches Handbuch für Recht und Gesetzgebung
, 1425 ff.

62.
Reich Ministry of Justice circular decree (Schlegelberger) of July 24, 1941 (Nuremberg doc. NG-505).

63.
Reich Ministry of Justice circular instruction of July 20, 1935 (Nuremberg doc. NG-630); similarly also
Richterbrief
no. 4 of January 1, 1943 (BA R 22/4002).

64.
For details, see Engert, “Stellung und Aufgaben des Volksgerichtshofs” (1939); Schauwecker, “Der Volksgerichtshof für das Deutsche Reich” (1936). Examples will be found in Gribbohm, “Der Volksgerichtshof” (1969), 55, 109; and, more recently, Wagner,
Der Volksgerichtshof im nationalsozialistischen Staat
(1974).

65.
Decree on the Special War Penal Code of January 17, 1938 (KSStVO) (
RGBl.
I 1939, 1455).

66.
Military Installations Defense Decree of November 25, 1939 (
RGBl.
I 2319); the legal basis of indictment to disaffection in the narrow sense was sec. 5 of the Decree on the Special War Penal Code (
RGBl.
I 1939, 1455).

67.
Letter of February 19, 1944, from the Reich Ministry of Justice to all presiding judges of the courts of appeal and chief public prosecutors (Nuremberg doc. NG-674).

68.
Richterbrief
of October 1, 1942, Ziff. 3 and 5, and of February 1, 1943, Ziff. 5 (BA R 22/4002). Details of the judicial practice will also be found in the Reich Ministry of Justice circular decree of January 14, 1943 (BA R 22/66; sexual intercourse with prisoners of war was punishable by “substantial imprisonment,” i.e., hard labor); overview of rulings from August 1943 to June 25, 1944 (a total of 1,360 cases, in which a sentence of death was pronounced in 297), in BA R 22/20069.

69.
Reich Ministry of Justice instruction of May 29, 1940, cited in letter of June 13, 1941, from the presiding judge of the Hamburg Court of Appeal (Nuremberg doc. NG-2215).

70.
Report on the meeting of the presiding judges of the courts of appeal and chief public prosecutors of March 31, 1942, in Berlin,
DJ
(1942): 247. Circular instruction of October 28, 1941, from the Reich Ministry of Justice to all chief public prosecutors (BA R 22/20068); in this and a subsequent circular decree of August 7, 1942, the ministry was nevertheless obliged to warn against “unduly rigorous action” (State Archive Pozna
,
Landgericht
Posen 17, Bl. 144); see also note 68.

71.
Reich Minister of Justice Thierack in
Richterbrief
no. 16 of January 1 and February 1, 1944, Ziff. 39, regarding unlawful slaughtering with examples of court decisions (BA R 22/4002); explanations of the assertions of the Reich Ministry of Justice in
Vertrauliche Information der Parteikanzlei
8/69 of March 24, 1944,
Verfügungen
, 6:140 ff.

72.
RGBl.
I 1679; more in R. Freisler,
DJ
(1939): 1452.

73.
Every “overly lenient punishment carries the risk of an epidemic [of such acts]” (
Richterbrief
of June 1, 1943 [BA R 22/4002]); full details will be found in the
Richterbriefe
of April 1 and May 1, 1943 (BA R 22/4002), and the Reich Ministry of Justice decree of June 16, 1942, cited in Nuremberg Trial III Prot. d, 4373 (Schlegelberger hearing), in BA Rep 501, XVII A 58; Schlegelberger maintained that the “entire German nation” had stood behind the decree.

74.
Nuremberg doc. NG-505; the decree apparently constitutes a clarification of a circular instruction of January 22, 1941, approving the application of sec. 4 of the Decree on Parasites upon the
Volk
to Poles; see situation report of January 29, 1941, by the chief public prosecutor, Hamm (Nuremberg doc. NG-685), which called for intervention of the Reich Ministry of Justice with a view to stricter application of sec. 4 of the Decree on Parasites upon the
Volk
“by way of circulars, articles, and discussions.”

75.
In his testimony at the Nuremberg Trial, Schlegelberger confirmed that the decree of July 24, 1941, was intended to be applied primarily to Poles, especially for sexual offenses (Protocol 4366, d, BA Rep 501, XVII A 58).

76.
Reich Supreme Court, October 23, 1941 (
DJ
[1942]: 19).

77.
See the corresponding list in
Führerinformationen
no. 140 of November 4, 1942 (BA R 22/4089).

78.
Thiemann, “Anwendung und Fortbildung” (1941).

79.
RGBl.
I 2378.

80.
RGBl.
I 549.

81.
Reich Minister of Justice Thierack in
Richterbrief
of January 1, 1943, Ziff. 15, BA R 22/4002; “purging of the nation” required destruction of the wrongdoer.

82.
Hitler in Picker,
Hitlers Tischgespräche
(1951), 203, adding that after ten years’ hard labor “a person was done for,” and “you either stuck him in the concentration camp or you killed him.”

83.
In the case of multiple offenses, the death sentence was generally applied as “standard penalty” (Reich Supreme Court, February 19, 1942, quoted in Brettle,
DJ
[1942]: 434). Individual circumstances, including the guilt of the accused, were not taken into consideration. The deterrent effect alone dictated the verdict. More details in H. Schickert,
DR
(1943) (A): 116 ff.; H. Schmidt-Leichner,
DR
(1941) (A): 2145 ff.; G. Dahm,
DR
(1942) (A): 401 ff. The Reich Supreme Court did not hesitate to pass the death sentence without basis in law. References on the practice of the courts will be found in Thiemann,
DR
(1941) (A): 2651; Meissner,
Deutsches Strafrecht
(1943): 85 ff.; Schwarz,
ZAkfDtRecht
(1941): 308 (Schwarz was a Supreme Court councillor); Bruns,
ZAkfDtRecht
(1943): 53; H. Schmidt-Leichner,
DR
(1943) (A): 882 ff.; see also the Special Court, Hamburg (quoted in Robinsohn,
Justiz als politische Verfolgung
, 115), which in a ruling of April 29, 1941, condemned a Jewish inland navigator to death for rape in coincidence with racial defilement in (retroactive) application of the Decree against Violent Criminals.

84.
Klagenfurt Special Court,
DR
(1941): 579; the use of the unarmed body could not be considered equivalent to the use of a weapon.

85.
Reich Supreme Court,
DJ
(1940): 1169; and RGSt 76, 91: The criterion was not the “external appearance [the act itself], but the internal tendency, the raw being, the dangerous state of mind.” Under the law of September 4, 1941, even the fist was a “dangerous weapon” (death penalty for a handbag-snatcher who punched his victim).

86.
Reich Supreme Court, September 14, 1943,
DJ
(1943): 527. Also RGSt 76, 91; and Reich Supreme Court,
DJ
(1942): 265.

87.
Reich Supreme Court (special High Criminal Court), November 20, 1941,
DJ
(1942): 265; a number of Polish agricultural workers were condemned to death for sexual assault of a child.

88.
Reich Supreme Court, December 4, 1942,
DR
(1943) (A): 236.

89.
Ibid.

90.
Publication was subject to strict control, of course, since the judiciary press offices were responsible to the ministry (Bracher, Sauer, and Schulz,
Die nationalsozialistische Machtergreifung
[1962], 564) and rigorous instructions were issued regarding preparation of reports (summary:
Richtlinien für die Tätigkeit der Justizpressestellen vom
1.6.1938, Berlin, 1938, 20 ff., reprinted in
DJ
[1938]: 846). On account of the generally severe mood against “aliens,” it may nevertheless be presumed that the published judgments were more or less representative.