"Non-Germans" Under the Third Reich (85 page)

The purpose of all these concatenations between the judiciary and the police was to gradually bring the justice system under political control and influence. One indirect way of achieving this was to have senior police officials present at discussions and meetings of the head of the judicial administration. Top police representatives lectured senior district justice officials on the political duties of the courts;
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Gestapo men spoke at meetings of senior judicial officials on problems of political criminal cases,
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and their speeches were reported in the districts. At the order of the Reich Ministry of Justice, all judges and public prosecutors were informed of a speech by the
Reichsführer
-SS on May 20, 1944, before the presiding judges of the courts of appeal and the chief public prosecutors in Cochem, where he spoke of the development and aims of the SS and especially the significance of the race question. The presiding judges of the courts of appeal were required to report on how the speech had been received by the judges.
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bb. Reactions of the Judicial Administration to Police Intervention: Basic Acceptance and Specific Criticism

Although at an institutional level the judicial administration permitted intervention by the police in its affairs in a number of ways, the question arises how it reacted to such growing interference in specific cases. The increasingly sharp tone of the National Socialist press since 1937, the countless arbitrary instances of protective custody and interference in ongoing proceedings by local Party functionaries and the police, and the many attacks on justice officials were a sign of how far it was possible to go without having to fear serious resistance from the justice authorities.
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Weighed down by regulations, the justice apparatus seemed to have little chance of defying an opponent that was so much more agile, had the whole executive in its hands,
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was able to act rapidly and ruthlessly, and whose chief, Himmler, abominated all rules: in his own words, “if a paragraph didn’s suit our ends, I couldn’t care a damn; I do what my conscience and common sense dictate in order to fulfill my task.”
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Although the ministry strongly protested the invectives published in the press, its stance was solely defensive and limited to the technical press,
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so that it had no political impact whatsoever. Fundamental objections on the part of the judiciary against the illegal acts by the police were merely internal,
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and very few were directed at those who were really concerned, the various organs of the political police, even at a time when the position of the judiciary was in no way jeopardized.

The Reich minister of justice carried considerable responsibility for the passivity of the judicial administration, occasionally expressing his regret about certain “awkward” cases but otherwise doing nothing.
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At best, he instructed the presiding judges of the courts of appeal to ensure that arrests by the Gestapo did not take place in the courtroom at least,
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and to report “rectification measures” to him.
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At the lower echelons of the judiciary, in contrast, the threat was felt much more clearly.
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The authorities simply relayed protests without commenting upon them, and they did so for a reason. The Reich Ministry of Justice and the authorities had reached a consensus that police Ministry of Justice and the authorities had reached a consensus that police measures such as imposition of protective custody were “purely preventive” and had nothing to do with justice. “Rectification,” however, was not held to be permissible.
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Yet the judicial authorities certainly could have achieved something with a determined efforts, since energetic protests did have the effect of getting prisoners released from protective custody.
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The justice authorities’ position made it impossible for the courts to prove the illegality of Gestapo procedures, for where was the proof of illegal “rectification”? Even when the victim was detained immediately on release, the police could always claim that the measure was a preventive one and served the “interests of the community.” Thus, the courts, feeling that they had been abandoned by their superiors, were largely resigned to police practices, so long as they stuck to the form of and declared the arrests to be preventive measures. As a result, the judicial process was regularly passed over in the case of certain offenders
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whom the police took for granted were theirs and whose arrest was in any case imminent.
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In an attempt to prevent the imposition of protective or preventive custody by the police, the judiciary also tightened up its own custody and penal practice. It became common to carry out arrests without a warrant or to impose “sufficiently” long prison sentences to keep the offender out of the reach of the Security Police.
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But there also are cases in which even the summary execution of offenders—irrespective of whether a judgment had been passed against them—excited either no protest at all or merely one limited to formal aspects of the case, claiming that the judiciary was capable of striking just as fast and as hard as the police
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or demanding a “legal settlement” with participation of the courts in executions, which were permissible as such.
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Though the reaction of the judicial authorities to the “rectification” of judgments by the police was generally one of
passive
acceptance, the judiciary responded to
criticism
of court rulings by the political leadership with excessive zeal.
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From the early days the ministry had lost its independence, once it had conceded that “it was the Führer and only the Führer” who decided on legal matters.
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Its response to other statements by Hitler on the justice system and its actions is, equally, more like that of a subordinate agency than an independent department, even judged by the criteria of the day.
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Thus, after Hitler’s Reichstag speech on December 11, 1941, in which he announced “merciless severity … in the struggle for the survival of our people,” Schlegelberger issued a decree (December 15, 1941) appealing to the judicial authorities for rigor and expediency “on the internal front” and gave instructions to have the most important passage of the speech immediately circulated to all judges and public prosecutors.
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When Hitler renewed his criticism in his Reichstag speech of April 26 of the following year, the judiciary did not limit itself to passive acquiescence or an appeal for harsher action. Its whole existence now appeared to be at risk, and such a danger could only be met with a doubling of zeal. With the support of the Reich Chancellery,
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the minister of justice now proposed unparalleled changes, abandoning the principle of the independent administration of justice and acknowledging the function of the Führer as the highest instance of appeal. The project
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provided for a right of confirmation by the Führer and Reich Chancellor on all rulings. If Hitler did not choose to exercise this right personally, it was to be delegated to the minister of justice, who in turn could delegate it to the presiding judges of the courts of appeal; if the ruling was not confirmed, the presiding judges could reassess the sentence. In this way it was assured that the sentencing practice of the courts “would not give cause for complaint.” Furthermore, the Reich minister of justice was to have the right to transfer a case to a different court at any time, as soon as it was clear that the court “was not equal to it.” But as was to be expected, these proposals did not prove acceptable, because their bureaucratic approach could never be radical enough for the Führer. Hitler was of course unable to oversee all court decisions, but he was not going to pass on the right of confirmation to the hated judiciary, nor would he accept a formal arrangement about the right of assent. So it was natural that he should issue a clear rejection of the proposals through the Reich Chancellery. In a letter dated June 10, 1942, Bormann informed the Reich minister of justice in office that as of April 26 the Führer had a right to intervene in all rulings “over and above all existing formal arrangements”; furthermore, the Reich Ministry of Justice and the presiding judges of the courts of appeal could not be expected to exercise the “necessary sense of responsibility and harshness,” let alone “adequate rigorous action” against “recalcitrant or incompetent judges.”
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cc. Flight Forward as Response: Tightening Up Sentencing Practice

The only “reaction” of the judicial leadership in the face of the arbitrariness of the police operations and the usurpation of those of its powers that had any significance was an attitude of compliance and enforced zeal; contrary to its hopes, this only accelerated the exclusion of the judiciary as an independent entity within the Reich administration. The judiciary increasingly compromised its position and allowed its actions to be dictated by the other side without developing a firm standpoint or taking any initiatives. It gave up consolidated positions without receiving any goodwill on the part of the political directorate, for it was never able to follow the regime’s radical actions without losing its own credibility. All that remained was uncertain maneuvering, a constant shifting of ground through the tangles of police directives and arbitrary moves. In the totalitarian tradition of constant adaptation to the will of the top leadership, and in the vain hope of getting it right, the judicial administration confined itself to recommending that its officers go along with events and prove that they too could “hit hard.” As such, the Reich Ministry of Justice set the example.

This was true above all with respect to the tightening up of penal practice in the fields of middle-grade and serious criminality, the “cowardly handling” of which by the justice department the Party and police never failed to castigate. A good example is the legislation of November 24, 1933, introducing preventive detention.
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State Secretary Freisler, true to form, endorsed increased use of the new instrument of preventive detention in an article in
Deutsche Justiz
in 1938.
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This practice, which was tantamount to prolonging the prison sentence, had originally been intended to remove out of harm’s way for a protracted period those prisoners whom it was impossible to reintegrate into society. It should now, said Freisler, be used as a political weapon, a “sharp blade in the struggle against professional and habitual criminals and the criminal mentality.” And since the Law against Dangerous Habitual Criminals of November 24, 1933,
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admitted a prolongation of preventive detention when there was a danger to “public security,” a political-ideological view of preventive detention was irresistible. Freisler’s “recommendations” did not fall on deaf ears: the chronological relationship between the campaign waged on the judiciary, the ministry’s recommendations, and the growing number of preventive detention cases speak for themselves. Whereas their number had fallen in 1937 to 765 cases, the figure climbed to 964 in 1938, to 1,827 in 1939, and to 1,916 in 1940; the figures declined again after 1941,
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because the Penal Code Amendment Law of September 4, 1941,
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against “dangerous habitual criminals” allowed the death sentence, an option that was frequently used at the demand of Hitler,
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and because from about this time the police took people suspected of serious crimes directly into their own preventive detention, thus rendering them inaccessible to the courts.

Another example of the compliance of the judiciary with political demands is the general instruction issued on March 3, 1938, by the Reich Ministry of Justice,
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introducing the participation of the police in legal affairs and the revocation of preventive detention in defiance of the fact that under the law this came under the competence of the judges. The instruction called for an “opinion” from the relevant Security Police authorities (the criminal police) before a prisoner was released, with the result that releases came about only with their permission, after which the prisoner was usually committed to a concentration camp. During the war, the release tended not to be granted.
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The so-called
Führerinformationen
are a further illustration of the placating policy of the justice branch. Following the failure of Schlegelberger’s proposals to introduce a right of confirmation for the Führer or the Reich Ministry of Justice concerning all court rulings during the “crisis of justice” of early 1942,
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the Reich Ministry of Justice looked for other ways to persuade the Führer that the judiciary meant business. The top people in the ministry knew that Hitler had only a tenuous understanding of the justice machine and that the sketchy and untimely information based on unqualified press reports that he received from Bormann only served to increase his anger against the system.
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His invectives before the Reichstag of April 26, 1942, were also due to an incomplete press report (the Schlitt case). The ministry, completely unsettled by these attacks and deciding that things had to change, took steps to enhance its image, which had fallen to rock bottom. It thus sought a direct connection with Hitler and the Party Chancellery through which to inform them firsthand of the “achievements of the judiciary” and its activities in general,
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in the hope of stemming the rebukes from on high and countering the influence of the Party and the police. Thus the
Führerinformationen
came into being.
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These were published weekly from May 15, 1942, until February 15, 1945, and were to be transmitted to Hitler by way of the head of the Party Chancellery.
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Top secret, only four copies were printed.
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In line with their avowed purpose, the
Führerinformationen
contained a wealth of information that was not otherwise accessible, “interesting court decisions and events, as well as measures taken and projects of the Reich minister of justice.”
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Above all they included reports on investigations and criminal proceedings,
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especially in the field of criminal law (People’s Court),
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of war criminal law, and of homicide and sexual offenses.
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Information on the number of final death sentences passed was intended to show Hitler that the judiciary was now “hitting hard” against the most minor offenses and to demonstrate how tough they acted in the matter of clemency.
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Other information outside the narrower field of legal practice concerned “achievements” such as the prisons, execution of sentences, forced labor of prisoners, and instructions and control measures by the Reich minister of justice relating to the “punishment of war criminals,” “Communist high treason,” and so forth.
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