"Non-Germans" Under the Third Reich (259 page)

38.
In this connection see the decisions listed in
Doc. Occ.
5:353 ff., insofar as they were pronounced before the issue of the Decree on Penal Law for Poles. Some of the few statistics available will be found in Beurmann, “Das Sondergericht Danzig,”
DR
(1942) (B): 77 ff. (78). According to this, the court pronounced 83 judgments in 1940, including 13 death sentences, which is a ratio of only 1 to 5.3; in 1941, out of a total of 171 judgments, 14 were death sentences.

39.
Examples: in August 1941 the Posen Special Court sentenced a Pole who had punched a German to “only” two years’ imprisonment because he had not intended to insult “Germanness” with his action (
Ostdeutscher Beobachter,
August 18, 1941, quoted in
Doc. Occ.
5:353 f.), thus saving him from the death sentence, foreseen for such acts (sec. 11, Introductory Decree,
RGBl.
I 1940, 844; clause 1, par. 2, Decree on Penal Law for Poles of December 4, 1941,
RGBl.
I 759).

40.
Regarding amendment, see the situation report of September 28, 1940, by the chief public prosecutor of Danzig, telling of a proposal by a government official to mitigate the provision concerning the death penalty for violent acts against Germans on account of their German nationality, punishable by death under sec. 11 of the Implementing Decree of June 6, 1940 (IfZ, FA 85/1). Regarding interpretation, the term
act of violence
(sec. 8 of the Implementing Decree of June 6, 1940) was made subject to special requirements; i.e., such acts had to go beyond simple bodily harm or acts of resistance under the terms of secs. 223, 113 of the Penal Code (Thiemann, “Anwendung und Fortbildung,” 2474).

41.
Following the decision of the Reich Supreme Court of July 7, 1941, “violence is not only an act of particular severity … which threatens the stability of German authority in the Annexed Eastern Territories, but so is any punishable act that is carried out with the use of violence.” As a result the Supreme Court condemned to death a Pole whom the special court had found guilty of resistance against authority in combination with bodily harm (secs. 113, 223, 73, Penal Code) but refused a conviction (death sentence) under sec. 8 of the Implementing Decree of June 6, 1940 (
DJ
[1942]: 75; see also Reich Supreme Court,
DJ
[1940]: 69;
DR
[1941]: 1888). In a memorandum accompanying the decision,
Ministerialrat
Grau of the Reich Ministry of Justice stated that the decision was also of significance for the new penal law for Poles of December 4, 1941. The term
act of violence
was now extended even to include acts that would otherwise not be punishable, such as attempted bodily harm or attempted duress (
DJ
[1942]: 75). The Reich Supreme Court expressed itself in a similarly extensive manner with respect to the subjective facts in the Polish emergency code. Thus, in pursuance of the decision of August 21, 1941 (Az. C 505/41, 5 Sts 18/41), the criminal act did not have to have been perpetrated for its own sake but could also derive from other motives (e.g., damage to a prison cell with a view to escaping), without a more lenient judgment being appropriate on account of the presumption of “a less serious case”; i.e., such damage would be subject to the death penalty under the terms of sec. 9 of the Penal Law Implementing Decree of June 6, 1940 (quoted from Thiemann, “Anwendung und Fortbildung,” note 11).

42.
RGBl.
I 2378.

43.
Cf. the judgment of October 10, 1941, by the Kalisch Special Court, noted for its harshness (AZ Sd 7 KLS 187/41, quoted in E. Herterich,
Die Nazi-Justiz
[Würzburg, 1963], 58 f.). A Pole had been caught in the act of burglary and had defended himself with a sharp object. The court ruled that this was an offense under the Violent Crimes Decree of December 5, 1939. Not only offenses under sec. 1, Penal Code, were considered “violent acts”; it was sufficient for a criminal act to have “a certain weight.” This was the case for theft (of food) that had continued for a year. The sharp object that the accused had carried was a “dangerous weapon” and therefore carried the death sentence.

44.
RGBl.
I 1269.

45.
Beurmann,
DR
(1942) (B): 77 ff. (81).

46.
Situation report of July 25, 1942, by the chief public prosecutor of Posen (BA R 22/3383): this corresponded precisely with Hitler’s wishes; in his opinion a person who remained in prison for more then ten years was lost to “society”; such people were put into concentration camp or killed. In the present period (of war), death was preferable as a deterrent (quote in Picker,
Hitlers Tischgespräche
[1951], 203).

47.
The Kattowitz chief public prosecutor in his situation report of March 2, 1942 (BA R 22/3372).

48.
Commentary on the judgment of the Reich Supreme Court of July 7, 1941, by
Ministerialrat
Grau of the Reich Ministry of Justice (
DJ
[1942]: 75; see also note 41 above).

49.
See the letter of July 14, 1942, by the presiding judge of the District Court, Posen (State Archive Pozna
,
Landgericht
Posen 14, Bl. 198):

It is my opinion that the criteria of the Secret State Police in its supervision of the mail and its interpretation of the term “disparage the reputation of the German nation or expression of an anti-German attitude” are somewhat too strict, and that the results may even be detrimental to the German reputation. As necessary as it may be to react with the severest measures in all cases in which Poles intentionally attempt to undermine the reputation of the German people or the German authorities by statements, slander, etc., as the special courts of the Posen District Court regularly do in the desirable degree, it nevertheless appears dangerous if, as apparently is sometimes the case, such intentions are attributed to private remarks in letters written by Poles who do not seem to have this motivation and are merely expressing an opinion in passing, and who are then prosecuted. The presidents of the special courts have on many occasions brought themselves to pronouncing a conviction only with some reluctance in such cases, and apparently sometimes did so purely for reasons of expediency, since in the event of an acquittal the accused would possibly have been dealt with by the state police in a similar or even more rigorous form.

50.
Situation report of September 6, 1941, by the chief public prosecutor of Kattowitz (BA R 22/3372). Before the Decree on Penal Law for Poles came into effect, the singing of the Polish national anthem was punished under the Treachery Law of December 1, 1934 (situation report of September 29, 1941, by the chief public prosecutor of Danzig, BA R 22/3360; situation report of September 6, 1941, by the chief public prosecutor of Kattowitz, BA R 22/3372). Decree of May 11, 1940 (
RGBl.
I 769), in conjunction with the Amending Decree on Penal Provisions for the Protection of the Defense of the German People (
RGBl.
I 2319). If Poles were involved in the contact with prisoners of war, however,
only
the Decree on Penal Law for Poles was applied. Situation report of May 3, 1940, by the presiding judge of the Court of Appeal, Königsberg (BA R 22/3375), which speaks of thirty-five cases before the Zichenau Special Court, in which nineteen women were given stiff penitentiary sentences for having had sexual intercourse with prisoners of war.

51.
The decisions of Leslau Special Court 3 of September 23, 1942, reproduced in
Doc. Occ.
10:218 ff., 223 ff., relating to a Polish cowherd, and of October 20, 1942, by the Łód
Special Court against a Polish servant girl, are particularly instructive in this regard.

52.
See the judgments of September 23, 1942, by the Leslau Special Court against a number of Poles and Jews, published in the
Ostdeutscher Beobachter,
June 10, 1941 (quoted in
Doc. Occ.
5:351 ff., where further decisions will be found).

53.
Situation report of September 29, 1941, by the chief public prosecutor, Danzig (BA R 22/3360).

54.
Under the terms of this instruction, all so-called war crimes, that is to say, offenses against the Decree on Parasites upon the
Volk,
the Decree on the War Economy, the Decree against Violent Crimes, and the Decree on Exceptional Radio Measures were in principle to be brought before the special courts (quoted in the letter of June 13, 1941, from the presiding judge of the Hamburg Court of Appeal to State Secretary Freisler, Reich Ministry of Justice, Nuremberg doc. NG-2215).

55.
See the selection of court (mainly special-court) judgments against Poles and Jews reproduced in
Doc. Occ.
5:351 ff., which probably reflect the average judiciary practice in the Warthegau. The convictions among the 71 judgments reported were as follows: 30 for violent acts or assault against Germans (of which 20 were death sentences); 21 for an “anti-German attitude” under clause 1, par. 3, of the Decree on Penal Law for Poles (3 death sentences); 18 for war economy offenses (8 death sentences); 7 for associating with prisoners of war (4 death sentences [assisting evasion]), 2 death sentences for “sabotage” (cutting the drive belt of a machine, rendering an agricultural machine unusable), under clause 1, par. 3, of the Decree on Penal Law for Poles; 3 death sentences as “parasites upon the
Volk
” for mild offenses against the textile collection of the Winter Aid Fund. There is also no lack of “curiosities,” such as stiff penalties for unauthorized attendance at the German theater in Posen (
Doc. Occ.
5:357), hiding two fire hoses (death sentence by the Posen Special Court [364]), “bad plowing” (judgment of the Posen Special Court: six years’ prison camp [405]). The minimal sentence of three months’ prison camp provided for in the Decree on Penal Law for Poles was applied on only two occasions, and a four-month sentence was pronounced twice (Posen Municipal Court), but always with reference to the particularly mitigating circumstances (young age of the accused).

56.
Letter of September 25, 1942, from the Reich Ministry of the Interior to the Reich Ministry of Justice (BA R 22/850), and situation reports of September 29, 1941, by the chief public prosecutor of Danzig (BA R 22/3360); and of September 6, 1941, by the chief public prosecutor of Kattowitz (BA R 22/3372).

57.
In the court of appeal district of Kattowitz, for example, unlawful slaughtering increased the business of the special courts by 60% (!) (situation report of September 6, 1941, by the Kattowitz chief public prosecutor, BA R 22/3372). Situation report of September 29, 1941, by the chief public prosecutor of Danzig (BA R 22/3360). This is a field in which the development toward pure deterrent justice is particularly apparent. Whereas initially, as corresponding Security Service reports deplored, sentences in similar circumstances ranged from eight years’ penitentiary to six months’ imprisonment (
Meldungen aus dem Reich,
January 30, 1941, BA R 58/166), convictions became more uniform in that certain “sentencing scales” were established according to the seriousness of the unlawful slaughtering; the “sentencing scales” applied in the Eastern Territories (for “alien” perpetrators) differed considerably from those of the Reich (for Germans, see the “sentencing scales” of the Reich Ministry of Justice in
Richterbrief
no. 16 of January 1 and February 1, 1944, BA R 22/4002). In mild cases, i.e., slaughtering of a pig up to 50 kg or a calf for personal use in cases of need, the “standard penalty” in the Eastern Territories was two years’ imprisonment, whereas the sale of illegally slaughtered meat attracted a minimum sentence of three years. If there was no case of need, the unlawful slaughtering thus occurred for the purpose of sale, and the death penalty was incurred, it being of no consequence how many animals were slaughtered. The court of appeal district of Königsberg made considerable use of this last possibility. Between May 10 and 16, 1942, no fewer than six Poles were sentenced to death by the special courts (situation report of June 11, 1942, by the chief public prosecutor of Königsberg, BA R 22/3375). Furthermore, Königsberg demanded even greater severity: in future every person found guilty of unlawful slaughtering, indeed
every offense
by a Pole or a Jew against the war economy regulations, should be punished by death. It was intended to add the following warning to the posters announcing the execution of death sentences in unlawful slaughtering cases: “Every unlawful slaughterer and every Pole and Jew who in some way violates the German war economy laws can expect to be sentenced to death” (situation report of June 11, 1942, by the chief public prosecutor of Königsberg, ibid.).