"Non-Germans" Under the Third Reich (82 page)

EXCURSUS

The “Rectification” of Justice by the NSDAP, the SS, and the Police

1. The Influence of the Party

The treatment of “non-Germans” through legislation and jurisdiction can only be understood in the light of the judiciary’s position vis-à-vis the two predominant forces in the National Socialist state, the Party and the police.
¹
At the institutional level, the influence of the Party on judicial practice was enormous.

In the introduction to this volume we have already seen the important role played by the Party in legislation.
²
To this must be added a strong influence on matters of pardon, decisions on which were basically in the hands of Hitler as the Supreme Führer (of the Party).
³
With the involvement of the Gestapo, these decisions took on a major political slant at an early stage.
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Where Party members were concerned, the Gauleiter of the relevant district also had a say in the matter. From 1942 on, the Party’s involvement was extended to all questions of pardon.
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An order by Hitler required approval by the Gauleiter in all cases in which clemency was requested by the minister of justice.
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In addition to such technical arrangements, the relations between the judiciary and the Party had an informal aspect,
⁷
which gave the National Socialist movement sufficient leeway to ensure that its self-interest was served. It can be best described as a system of constant pressures on the courts by way of the Party press and the influence of top Party officials, with a view to influencing the judges in the National Socialist spirit. For the NSDAP, as the ideological leadership and “bearer of the German state philosophy,”
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it was above all important to wean the judiciary away from the idea of justice for all and to replace this by a generally accepted practice of
vökisch
inequality. Given the ubiquity of the totalitarian propaganda machine and ignorance of the administrative legalities, much hope was placed at first on a centralized education effort.
⁹
The party or its auxiliary League of National Socialist German Jurists, later renamed the National Socialist Association of Law Officers (NSRB), was charged with training judges and the upcoming generation of lawmen “in the spirit of National Socialism,” to strengthen the “community awareness” of the “guardians of the law” through meetings, “comradeship evenings,” weekend training courses, training camps, and so forth.
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The success of this great effort was relatively meager. The romanticism of blood and soil, the rigid drilling in the communal camps, the level of “ideological training,” plus the additional load of legal training in the form of so-called
Volk
studies
¹¹
were often experienced as a burdensome obligation or a necessary evil. Criticism was expressed both openly and covertly,
¹²
and relations between the Party and the judges, especially among junior barristers and the younger judges, in whom much hope had originally been placed, were strained. With the outbreak of the war, therefore, the excessive political training effort was curbed, to be replaced by the communal “experience” at events involving the “whole nation.”
¹³
Both the Party and the judiciary subsequently attached more importance to technical training,
¹⁴
close consultation between the Party and the ministry in these matters,
¹⁵
and future training reform measures.
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In addition, efforts were made to enhance the influence of the Party and judicial leadership on court rulings by way of a concentrated personnel policy, which was seen as the main problem of the judiciary.
¹⁷

In parallel with general training, direct pressure was exerted by the Party to push through the Nazi jurisdiction it wanted. After 1933 attacks by Party agencies on individual judges who fell out of favor and interference in current procedures were everyday occurrences (especially on the part of the SA).
¹⁸
The
Diensttagebuch
records of the early years 1933–35 or special lists of such interventions by the Party describe in detail the spying operations, suggestions made to lower justice officials and court employees, accusations, threats of arrest to specific judges, “consultations” between Party agencies and the justice authorities, intimidation of witnesses, false statements, delaying tactics, and so forth.
¹⁹

The conditions for exerting such pressure were, however, provided not least by the forbearance and compliance of department chiefs and the ministry in the face of such activity,
²⁰
but above all they were made possible by the fact that members of the NSDAP and their friends at the local level regularly reported important proceedings in progress (especially “particularly crass and to our mind incomprehensible court rulings”) to their superiors. The
Gauleitung
for its part passed on such information to the Party leadership (the deputy of the Führer) with a view to “discussions” with the ministry.
²¹
From 1941 on, internal Party directives expressly included the obligation to report information on cases in which judges did not award the death penalty where it was “deserved,” so as to ensure that the situation could be “rectified” by the Ministry of Justice.
²²
Thus, it is fair to assume that the Party leadership was constantly kept informed of all proceedings of note and was able to exert its influence when it desired.

The Party leadership, including Hitler, true to the ambivalent language characteristic of the Third Reich, continually stressed the monopoly of the justice branch on criminal prosecution; at the same time they spoke of the possibility of “exerting influence” where “doubts” arose. In this way it presented the appearance of supporting the judiciary as an institution, all the while sowing insecurity and confusion through this political proviso. How the leadership saw the role of the judiciary comes out clearly in the internal instructions issued by Hitler and Party headquarters: although in principle jurisdiction was in the hands of the judiciary, in all “fundamental or politically important” matters, the justice authorities’ power of decision was revoked and the outcomes of the proceedings were to depend on a decision at the highest level, that is, by Hitler himself or by the Reich Ministry of Justice.
²³

The specific pressures exerted on the judiciary are illustrated particularly well by the Party’s attack on the judgment pronounced by the Fourth Criminal Division of the Reich Supreme Court in the Reichstag fire trial on December 23, 1933, in which four accused were acquitted. The official Party line was that of “a blatant miscarriage of justice” caught up in the rut of a “hidebound, alien-spirited, liberalistic philosophy,” indicating the “need for a fundamental reform of our legal system.”
²⁴
Pressure was probably exerted most frequently in cases involving Party members, whether “ordinary” or serious,
²⁵
and in situations where the Party could present itself as the guardian of the “law of the people” and the champion of anti-Jewish activities.
²⁶

This was the case in matters of enforcement,
²⁷
for example, where pressure was applied on a particular court to place Jewish plaintiffs or defendants at a disadvantage,
²⁸
especially when Party members were involved.
²⁹
Party officials who were sued by Jews did everything in their power to persuade the plaintiff to withdraw his action, often openly threatening to have Jewish plaintiffs sent to concentration camp if they pursued the case.
³⁰
Similarly, in cases in which Poles appeared as creditors of Germans,
³¹
“overly lenient” judgments against “non-Germans” were “corrected” after the lodging of a complaint by the Gauleiter.
³²

Such piecemeal interventions were far from satisfying the ambitious plans of the political leadership, however. In the totalitarian Nazi system, in which everything was politicized, the duty of the administration of justice was also first and foremost political. The final objective of the Party, as internal circulars openly demanded, was total control of the justice apparatus, “a National Socialist orientation of justice and justice officials.“
³³
The Party came a lot closer to realizing this intent when on August 29, 1942, it put its own man, Thierack, in the office of Reich minister of justice. Thierack was in tune with the system. Political training was explicitly proclaimed to be the “privilege of the Party,” while a very vague line existed between such activity and the responsibility of the justice administration over its staff.
³⁴
The Party’s interventions in judicial matters became formally recognized and centralized. It was now no longer a matter of influencing individual court decisions as they occurred, but of imposing the overall primacy of the Party in all questions of control and training within the judicial establishment, with the blessing of the new Reich minister of justice. Arbitrariness became the system, and pressure and string-pulling were institutionalized. A circular from the Reich Chancellery dated August 27, 1942, informed all Party offices that the administration of justice was now possible “only in close collaboration with the Party,” which was to help the new minister of justice “build a strong National Socialist system of justice.”
³⁵
For this task he had received full powers with the Führer decree of August 20.
³⁶
All public criticism of judges and individual rulings was further suppressed. Such criticism was indeed no longer needed in the individual case, because from now on the hold of the Party on the justice branch was exerted centrally at the highest level through the head of the department himself; the Party Chancellery “discussed the necessary details” with the minister in all objectionable cases.
³⁷

To this end the Party leadership was now far more comprehensively informed on the major decisions and measures taken by the judiciary authorities than it had been in the past. The Party leadership had hitherto depended on its own sources for information, but the flow of information was now centralized. Both Hitler and the Party Chancellery received the
Führerinformationen
, issued by the Reich Ministry of Justice starting in May 1942,
³⁸
the purpose of which was to demonstrate the “hard line” of the judiciary to the supreme leadership. An additional medium of information for the top Party members was the
Richterbriefe
we have already mentioned, which first appeared on October 1, 1942, dreamed up by Thierack as a new instrument of control for the judiciary, in which court rulings were discussed critically or approved by the ministry.
³⁹
Although these broadsheets were expressly declared secret and destined only for the various courts,
⁴⁰
they were also passed on to the Gauleiter by Bormann to keep them abreast of the dispensation of justice, with a request for “rectification” proposals.
⁴¹
It is possible that the
Richterbriefe
were even passed down the line as far as the
Kreisleiter
, for one
Kreisleiter
had the idea of requesting them directly from the ministry, since “it was not always possible to borrow them from the Gauleiter.”
⁴²
Thus, with the advent of the
Richterbriefe
, not only the ministry had means of keeping tabs on the courts, but such possibilities were now available to the Party leadership also.

In addition, the NSDAP built up its own competitive information apparatus, doubtless because it did not consider the selection of “suitable” cases presented by the ministry to be sufficient to strengthen its political influence on the judiciary. Just as the Reich minister of justice demanded appropriate rulings from the subordinate justice authorities for inclusion in the
Richterbriefe
,
⁴³
the Party Chancellery instructed its offices to send in “good and bad court decisions” so that “rectifications” could be proposed to the ministry.
⁴⁴

The overall political primacy in all matters of judicial control demanded by the Party and its agencies affected above all the major questions of the treatment of “non-Germans.” Although since 1933 the Party had attempted by every variety of direct and indirect pressure to induce the judiciary to rule against Jews, the office of the Führer’s deputy and later the Party Chancellery had from the begining of the war, with the agreement of the SS and the Party leadership, demanded that all “non-German,” as nonmembers of the German
Volksgemeinschaft
, be severed from the German process of law and handed over to the police (the
Reichsführer
-SS and chief of the German police), and this did indeed become the case with the advent of the Thirteenth Decree of July 1, 1943, to the Reich Citizenship Law.
⁴⁵
As a result, complaints came pouring into the Reich Ministry of Justice concerning the leniency of penalties meted out in “non-German penal law,” down to the pettiest cases, with reference to which a tedious correspondence shuttled back and forth at the highest level between the Party Chancellery and the ministry.
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