"Non-Germans" Under the Third Reich (253 page)

74.
Ibid.

75.
Situation report, chief public prosecutor Kattowitz (Katowice), March 2, 1942 (BA R 22/3372).

76.
The decree therefore contained no regulations concerned with the cessation of validity of the criminal justice implementing order of June 6, 1940 (
RGBl.
I 844), for Poles and Jews. Only the “special penal provision” contained in secs. 8–16 of the implementing order were declared to be no longer applicable to Poles and Jews (Decree on Penal Law for Poles, clause 16). Thus, with regard to the procedural provisions that contained essential legal guarantees (legal remedy procedures) also for “non-Germans,” the implementing order should have remained in force. It was, however, effectively abrogated by clause 2 of the Decree on Penal Law for Poles (proceedings only “on the basis” of the German criminal code at the court’s discretion).

Whereas the 1940 implementing order (
RGBl.
I 844) was still drafted in the customary “legal style,” the implementing regulations contained brutal and indiscriminate language that made it clear that it was no longer a question of making law but of combating political enemies by every means available. For example, clause 1, par. 1, of the Decree on Penal Law for Poles said: “Poles and Jews in the Annexed Eastern Territories are to conduct themselves in accordance with German law and the instructions issued to them by the German authorities. They must desist from any conduct that is detrimental to the sovereignty of the German Reich and the name of the German people.”

77.
See also the commentary to the Decree on Penal Law for Poles in the situation report of the Kattowitz chief public prosecutor of March 2, 1942 (BA R 22/3372).

78.
Clause 3, par. 1, Decree on Penal Law for Poles. These detention camps (
Straflager
) are not to be confused with the concentration camps, although the conditions were to some extent similar. The detention camps only received convicted prisoners for sentences of a set length, whereas Poles were usually sent to the concentration camps for indefinite periods (for the duration of the war). Nor should they be confused with the “work training camps” (
Arbeitserziehungslager
) of the SS and police—frequently referred to as detention camps—where summary sentences passed by penal order were served (see also decree circulated by the
Reichsführer
-SS and chief of the German police on December 28, 1942, reproduced in
Doc. Occ.
5:348 f.).

79.
In accordance with the so-called Decree on the Execution of Sentences for Poles (
DJ
[1942]: 35; slightly modified by the implementing regulation of the Reich Ministry of Justice of May 31, 1944,
DJ
[1944]: 160), the execution of sentences imposed on Poles was characterized by “absolute discipline”; the labor had to be “particularly arduous” and the “productive capacity of the convict exploited to the full”; the working day was an hour longer than in the penitentiary; no visits were permitted; letters were only allowed when adjudged “necessary” by the overseer. No “remuneration” was allowed, not even for prisoners on remand (letter from Reich Ministry of Justice to all chief public prosecutors, January 16, 1942, BA R 22/1431, 135). Nonetheless, compared with the SS and police-run “work training camps,” these camps were the lesser evil (“prisoners’ health and ability to work must be safeguarded,” clause 4, Decree on the Execution of Sentences for Poles,
DJ
[1942]: 35), since the former lacked any sort of clause concerning prisoners’ well-being (“convicts … [are] to be detailed for particularly strenuous work,” circular decree from
Reichsführer
-SS and chief of the German police dated December 28, 1942, reproduced in
Doc. Occ.
5:348 f.). It is doubtful whether such detention camps were established throughout the Eastern Territories. In Warthegau, for example, simple detention camp sentences were served either in special camps or in normal penal institutions (cf. circular from chief public prosecutor Posen, January 8, 1942, State Archive Pozna
, Posen District Court 13). In his report on activities for the year 1943,
Reichsstatthalter
Greiser (“Der Tag der Freiheit, 1943,” 29, Library of Institute for Western Studies, Pozna
, Sign. II 75778) also speaks of (39) penal institutions (
Vollzugsanstalten
), in which 10,514 Polish and German prisoners were working. For further details on execution of sentences on Poles in Warthegau and Danzig–West Prussia, see also circular decree from the Reich Ministry of Justice of December 11, 1942 (Erlaßsammlung BA); a list of penal institutions in Wartheland is given in the
Ostdeutscher Beobachter
of January 30, 1940 (State Archive Pozna
), and in an overview of penal institutions in the court of appeal districts (no date) (BA R 22/1266, 246 ff.); see also
Handbuch der Justizverwaltung
(1942), 264, 272. For the administrative district of Kattowitz, see situation report by chief public prosecutor, Kattowitz, May 3, 1942 (BA R 22/3372).

80.
Similarly, the decree—under Reich law—concerning the setting up of courts-martial, February 15, 1945 (
RGBl.
I 30), under the terms of which the death sentence could be passed for any criminal offense.

81.
The condition for applicability of the Penal Code for Poles was that the person in question should have had his or her place of residence within the territory of the “former Polish state” on September 1, 1939.

82.
Further details in comments by Posen chief public prosecutor in the
Ostdeutscher Beobachter
of June 24, 1940 (State Archive Pozna
). Poles were treated as Germans only if they were on the
Deutsche Volksliste
(German Ethnic Classification List)
and
had been resettled in the Altreich (implementing order of Reich Ministry of Justice, June 5, 1943,
DJ
[1943]: 520). What was never cleared up beyond doubt was the question of the treatment under criminal law of those Poles who were on the list but had not been resettled in the Altreich and of those who qualified for registration on the list but whose names had not yet been entered. The SS and police leadership wanted to treat such people as Poles, the judicial system as Germans. See also letter from Reich Ministry of the Interior to Reich Ministry of Justice, July 10, 1942; letter from RFSS/RKF to Reich Ministry of Justice, September 25, 1942 (BA R 22/851); situation report from presiding judge of Danzig Court of Appeal, March 10, 1942; report from presiding judge of Bromberg District Court to presiding judge of Danzig Court of Appeal of July 18, 1944 (BA R 22/3360); regarding the precarious situation in Upper Silesia, where there was a strong mix of population groups, see situation report from the Kattowitz chief public prosecutor of September 2, 1942 (BA R 22/3372, 10).

83.
RGBl.
I 844.

84.
More details in Freisler, “Grundsätzliches zur Ministerratsverordnung” (1941), 2629 ff. (2632).

85.
Von Rosen–von Hoevel, “Das Polenstatut” (1942), 111.

86.
Freisler, “Grundsätzliches zur Ministerratsverordnung,” 2631.

87.
Freisler, “Das deutsche Polenstrafrecht” (1941), 1129; (1942), 25 f. (29).

88.
Freisler, “Grundsätzliches zur Ministerratsverordnung,” 2631.

89.
See the letter from State Secretary Freisler (Reich Ministry of Justice) to RMuChdRkzlei (BA R 43 II/1549; also Nuremberg doc. NG-127).

90.
Drendel, “Aus der Praxis der Strafverfolgung im Warthegau”; Thiemann, “Anwendung und Fortbildung,” 2473.

91.
Examples in Drendel, “Aus der Praxis der Strafverfolgung im Warthegau,” 2471; Buchholz, “Zur Ostrechtspflege VO” (1941), 2480; Enke, “Die Rechtspflege im Volkstumskampf” (1941), 2489; Pungs, “Die bürgerliche Rechtspflege im Warthegau” (1941).

92.
Cf. Pungs, “Die bürgerliche Rechtspflege im Warthegau,” 2491, who states that “not all plaintiffs are equal before the judge of the Warthegau” and that “rather a distinction should be drawn between Poles and Germans. This … should not be understood as meaning that Poles should have no rights…. Provided that he is designated to serve German development and is ready to cooperate in it, the Pole should find justice before the courts as a person with protected status of the German Reich.”

93.
Only the paragraphs printed in
DR
(1941) (A): 2465 ff., insofar as they are clear, provide any details.

94.
Freisler (see notes 84 and 87 above).

95.
A very few definitions in penal law for Poles will be found in Klinge, “Bemerkungen zur Begriffsbildung im Polenstrafrecht”; and in von Rosen–von Hoevel, “Das Polenstatut.”

96.
The articles by Drendel, “Aus der Praxis der Strafverfolgung im Warthegau”; and Thiemann, “Anwendung und Fortbildung,” appeared in no. 48 of the journal
Deutsches Recht
of November 29, 1941 (the Decree on Penal Law for Poles was promulgated on December 4, 1941), and hinted at a (forthcoming) new legislative arrangement (“The development of legal practice in the Annexed Eastern Territories is not yet terminated with respect to penal law. Precedents alone are not sufficient to carry it. Further legislative measures can therefore be expected—perhaps in the near future,” Thiemann, “Anwendung und Fortbildung”).

97.
Meeting of the presiding judges of the courts of appeal and chief public prosecutors with State Secretary Schlegelberger in Berlin (undated minutes, presumably May 1942) (BA R 22/4162).

98.
Freisler (see notes 82 and 85). The statements in
DJ
(1942): 25 ff., in particular, show how confused and impossible to dissociate law and politics were, the two even being used as synonymous terms, for example in the following: “The guideline for reaching a just decision in the penal jurisdiction for Poles is achieved when the judge considers the totality of the interests of the German people and of the Reich and the respective political necessities, whose legal interpretation arises from the political objectives of German work in the Annexed Eastern Territories.”

99.
Speech before the chief public prosecutors on October 28—29, 1941 (Institute for Western Studies, Pozna
, doc. I-804; transcript).