"Non-Germans" Under the Third Reich (252 page)

17.
A. Schönke,
Strafgesetzbuch
, commentary, 2d ed., 1944, sec. 125, note 3.

18.
Thiemann, “Anwendung und Fortbildung,” 2474.

19.
Ibid.

20.
RGBl.
I 83.

21.
Regarding the concept of the “dangerous instrument,” cf. Schönke,
Strafgesetzbuch
, 473. Thiemann, “Anwendung und Fortbildung.”

22.
Thiemann, “Anwendung und Fortbildung.”

23.
Concerning the admissibility of the reinterpretation, see, e.g., Schönke,
Strafgesetzbuch
, sec. 2, no. III 2; Mezger,
Deutsches Strafrecht
(1938), 26; Dalcke,
Strafrecht und Strafverfahren
(1940), sec. 2, 2a; Schaffstein, “Rechtswidrigkeit und Schuld im Aufbau des neuen Strafrechtssystems” (1938), 295 ff. (316); a contrasting view is expressed in Kohlrausch,
Strafgesetzbuch
(1941), sec. 2, note IV 5c; Wachinger, “Rechtsschöpferische Rechtsprechung des Reichsgerichts auf materiellstrafrechtlichem Gebiet” (1939).

24.
Thiemann, “Anwendung und Fortbildung,”
DR
(A) (1941): 2474.

25.
Drendel, “Aus der Praxis der Strafverfolgung im Warthegau”; in this sense see also Froböß, “Zwei Jahre Justiz im Warthegau,” 2465 f.; Tautphaeus, “Der Richter im Reichsgau Wartheland” (1941), 2467.

26.
Thiemann, “Anwendung und Fortbildung,” 2473. This work is the source for the examples given.

27.
RGBl.
I 1683.

28.
RGBl.
I 694.

29.
Decree circulated by GstA (chief public prosecutor) Posen (Pozna
), January 9, 1940 (BA R 22/52).

30.
RGBl.
I 61.

31.
RGBl.
I 83.

32.
RGBl.
I 162.

33.
RGBl.
I 723.

34.
RGBl.
I 1269.

35.
RGBl.
I 999.

36.
RGBl.
I 1679.

37.
RGBl.
I 2378.

38.
RGBl.
I 1146.

39.
Cf. decree circulated by the chief public prosecutor Posen on January 9, 1940 (BA R 22/52). Another standpoint was adopted by the
Reichsführer
-SS; he took the view that admixture of the Polish and Jewish population should be avoided and consequently that the Law for the Protection of German Blood and German Honor should also be applicable to the Poles (letter from
Reichsführer
-SS to Reich Ministry of the Interior, June 21, 1940, Nuremberg doc., NG-1916, English summary).

40.
Second Implementing Regulation to the Law for the Protection of German Blood and German Honor of May 31, 1941 (
VOBl. Reichsstatthalter
Wartheland, supplement no. 12, 37), explicitly restricted to German citizens and nationals.

41.
Thiemann, “Anwendung und Fortbildung,” 2473.

42.
Legal Gazette, July 15, 1932, no. 60, 571, quoted from Kodeks Karny I Prawo o Wykroczeniach (penal code and law of torts), 1968, 51.

43.
Thiemann, “Anwendung und Fortbildung.”

44.
Froböß, “Zwei Jahre Justiz im Warthegau.”

45.
Beurmann, in “Das Sondergericht Danzig,”
DR
(1942) (B).

46.
RGSt (Supreme Court for Criminal Cases) 73, 38; 73, 379, 386.

47.
Thiemann, “Anwendung und Fortbildung,” 2475.

48.
Ibid.

49.
RGBl.
I 844.

50.
Regarding the origins of the implementing decree, cf. Broszat,
Nationalsozialistische Polenpolitik
(1961), 130 ff., with further examples.

51.
Sec. 1, no. I, 1–14; nos. II and III.

52.
Thiemann, “Anwendung und Fortbildung,” 2475; Beurmann, in “Das Sondergericht Danzig,”
DR
(1942) (B): 78.

53.
RGBl.
I 135.

54.
An example of the uncertainty of practice is revealed in a letter from the Reich minister of justice to the Reich minister of the interior dated August 22, 1940. The Reich Ministry of Justice states that the special courts in the Eastern Territories had already been passing sentences under sec. 5 of the Law for the Protection of German Blood and German Honor (on grounds of “racial defilement”). Since coming into force there, the introductory regulation had given rise to misgivings because it had not been presented as part of the decree. He requests that an appropriate retroactive clause be included (BA R 22/51). (However, no such clause was included in the Second Implementing Regulation to the Law for the Protection of German Blood and German Honor of May 31, 1941,
RGBl.
I 297.)

55.
In the draft of the law amending the Penal Code of June 26, 1935 (
RGBl.
I 839).

56.
Schönke,
Strafgesetzbuch
(see note 17), sec. 2, no. II.

57.
There was general agreement that this decree did not contain a “complete list” of all the regulations applied in the Annexed Eastern Territories; consequently, it could not “mislead” courts concerned with the application of regulations not specifically named in the decree (Thiemann, “Anwendung und Fortbildung,” 2475).

58.
RGBl.
I 1679.

59.
This was a departure from the principle that the regulation covered only those criminal offenses committed in “abnormal” wartime conditions; sec. 4 included not only the “evacuation” of Polish apartments, the closing down of Polish and Jewish businesses, and the nighttime curfew for Poles, but also the “unusual overall situation” in the Annexed Eastern Territories, the shortage of German police, and “the extremely high level of criminality among the Poles,” which the authorities had so far failed to bring under control as a result of the war—all these were considered “extraordinary conditions” under the terms of the Decree on Parasites upon the
Volk
(Thiemann, “Anwendung und Fortbildung,” 2475); accordingly, every criminal act committed in the context of this “overall situation” was potentially a capital offense.

60.
RGBl.
I 1269.

61.
For example, the offense of “public abuse of the Reich,” which was punishable under sec. 134a of the Penal Code, was extended to cover “malicious slander of ethnic Germans and their blood sacrifice,” the people being “the human essence of the Reich” (Special Court Danzig,
DJ
[1941]: 945), and the singing of the Polish national anthem and public slander of the German armed forces (Thiemann, “Anwendung und Fortbildung,” 2475; Beurmann, “Das Sondergericht Danzig,”
DJ
[1942] [B]: 78). The clauses of the Treachery Law (
Heimtückegesetz
) of December 20, 1934, were constantly invoked and very broadly applied to “constant carping criticism” of “German construction” by the Poles. Sec. 1, which referred only to the
public
dissemination of falsehoods directed against the Reich, in other words not as part of a “whispering campaign,” was used in conjunction with sec. 2, par. 2 (prosecutability of
non-public
utterances hostile to the party, so as to cover “whispered” propaganda) (Special Court 1, Leslau, verdict of July 25, 1941, SD 4 Kms 10/41, quoted from Thiemann, “Anwendung und Fortbildung,” 2475 n. 14).

62.
Special Court 1, Posen, June 20, 27, 1941; Special Court 2, Posen, August 19, 26, 1941; all judgments quoted from Thiemann, “Anwendung und Fortbildung,” 2476 nn. 19, 21; in Danzig–West Prussia, such cases were treated more leniently (analogous to the application of the Law on Titles, Honors, and Medals of July 1, 1937, RGBl. I 725; Special Court Danzig, June 20, 1941,
DJ
[1941]: 945).

63.
The special regulations were taken almost verbatim from the draft of a decree from the
Reichsführer
-SS and chief of the German police “concerning measures against acts of violence in the Annexed Eastern Territories” of February 21, 1940 (BA R 43 II/647), which Himmler originally wanted to issue in his own right as a separate police ordinance outside of the general penal code. For a detailed account of the tensions that arose between Reich administration and police leadership concerning the introduction of this legislation, see Broszat,
Nationalsozialistische Polenpolitik
, 132 ff., with numerous examples.

64.
According to sec. 16 of the implementing order, the circle of privileged ethnic groups was determined by the
Reichsstatthalter
(
Oberpräsident
). As a result of this discretionary power, the following groups were excluded from the special regulations set out in secs. 8–15 of the implementing order in Wartheland and Danzig–West Prussia: Ukrainians, Russians (except Soviet Russians), White Russians, refugees from the Caucasus, and “non-German returnees from the ethnic German areas” (decrees issued by the
Reichsstatthalter
in Wartheland, August 9, 1940, and August 15, 1941,
VOBl. Wartheland
, 1940, 630; 1941, 468; decree issued by the
Reichsstatthalter
in Danzig–West Prussia, 1941, 652)—in other words, the special regulations applied only to Poles and Jews.

65.
For more details, see Broszat,
Nationalsozialistische Polenpolitik
, 134 ff., with numerous examples.

66.
Cf. letter from the deputy Führer’s chief of staff to the Reich minister and head of the Reich Chancellery of November 20, 1940 (BA R 43 II/1549; Nuremberg doc. NG-227). Bormann did not hesitate to pass off his own ideas about the shaping of the Polish Penal Code as “the views of the Führer,” thus getting his way; cf. Broszat,
Nationalsozialistische Polenpolitik
, 206 f. n. 97.

67.
Letter from Reich Ministry of Justice (State Secretary Freisler) to the Reich minister and head of the Reich Chancellery, November 20, 1940 (BA R 43 II/1549; Nuremberg doc., NG-127, my emphasis).

68.
RGBl.
I 759.

69.
R. Freisler at a conference of appeal court presiding judges and chief public prosecutors (probably in May 1942) in Berlin, minutes (no date) (BA R 22/4162). The draft is dated April 17, 1941.

70.
In the preamble to the draft of April 17, 1941, State Secretary Schlegelberger praised the “rapid and effective working of the special courts” and the “extremely impressive rate at which cases were processed.” He was pleased with the courts’ efforts to counter moves by the Party and police to displace the judiciary altogether from the administration of the criminal law in cases involving “non-Germans” and to replace them with summary police courts. Nevertheless, he came down in favor of the Party line. He gave as an example the Special Court in Bromberg (Bydgoszcz), which had up to that point sentenced a total of 201 defendants to death, given life sentences to 11 more, and condemned 93 further defendants to a total of 912 years in the penitentiary, an average sentence of 10 years (BA R 43 II/1549; also Nuremberg doc. NG-144).

71.
BA R 43 II/1549. The only thing the ministry did not agree with was Bormann’s proposal to introduce corporal punishment for Poles, a pet idea of the Party and police leadership, stating that this “was incompatible with cultural standing of the German people.” Under a later plan devised by Minister of Justice Thierack in consultation with the
Reichsführer
-SS, corporal punishment was to be introduced into the Altreich by decree; cf. Thierack’s note on a discussion with Lammers on October 1, 1942. Lammers pressed for a presentation of the case by the Reich minister of justice to the Führer (BA R 22/4062). I do not know whether the presentation ever took place.

72.
Broszat,
Nationalsozialistische Polenpolitik
, 139.

73.
Indictment in trial of lawyers before the American Military Court in Nuremberg, quoted from Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeβ
(1969), 62 f., 64 f., 66.