"Non-Germans" Under the Third Reich (88 page)

But after all the invectives against the judiciary in the Party press (
Schwarzes Korps, Stürmer
) since 1937–38, and the already commonplace interference of the Party and the police in current proceedings, it needed more than good faith not to perceive a general attack on the judiciary’s authority in such actions. According to its official statements, however, the judiciary—to which the idea occurred only in December 1942 that “centralized instructions from the
Reichsführer
-SS existed”
⁴⁸
—claimed to have knowledge of the precise extent of the powers usurped by the police only at a very late juncture. At the decisive meeting of the presiding judges of the courts of appeal and chief public prosecutors in Berlin on February 10–11, 1943, the relevant decrees by the
Reichsführer
-SS and chief of the German police and the chiefs of the Security Police and Security Service were made known (but not handed out), having until then been kept from the Reich Ministry of Justice on the flimsiest of pretexts—that they had been issued before Minister of Justice Thierack came into office.
⁴⁹

He and the ministry, as Reich Minister of Justice Thierack explained, had not known what was going on and had only heard of “incomprehensible events”; only now, in early 1943, had he, the minister, found the “solution to the puzzle,” the empowerment of the
Reichsführer
-SS and chief of the German police by the plenipotentiary for the Four Year Plan through the decree of March 8, 1940.
⁵⁰
These statements are all the more revealing in that the situation reports by the presiding judges of the courts of appeal and the chief public prosecutors had been full of complaints about police interventions, so that the ministry, as Thierack himself explicitly stated, was very aware of the “countless reports and complaints” from the districts and of the systematic actions of the police.
⁵¹
In addition, on the strength of his long connections with the Security Police,
⁵²
he doubtless had access to official information sources. The ministry’s explanation of why the police regulations had not filtered through to the heads of the districts is equally dubious: the ministry, as the responsible official stated at the meeting of February 1943, had studied the wording of the police decrees but did not yet feel “in a position” (this in 1943) to inform its field offices, because it first wanted to come to an “acceptable arrangement” with the
Reichsführer
-SS and chief of the German police.
⁵³

But certainly two things were achieved after Thierack took over the ministry. First, the penal prosecution of “non-Germans” was thoroughly discussed at least once with the heads of the field offices (at the Berlin meeting in February)—precious little, but nevertheless something in a time of general legal uncertainty and lack of information. Second, Thierack—the keenest proponent of the harshest possible line in “penal law for aliens”—did attempt to obtain a delimitation of the respective jurisdiction powers through internal “agreements” with the
Reichsführer
-SS and chief of the German police, so that there would at least be some clarity about the reigning lawless conditions.

This clarification took the form of guidelines on criminal law for “non-Germans,” which, significantly, were transmitted to the heads of the justice department by word of mouth only at the February meeting.
⁵⁴
These guidelines were nothing other than the defensive reaction of the judiciary to the encroachments of the police; they confirmed the status quo, marking less the existing jurisdiction powers of the judiciary than the position the police had carved out for themselves, without dealing with the whole extent of the loss of competence. For Thierack, who in the matter of dealing with “non-Germans” had always gone along with the police leadership, did not dream of disputing the usurped powers with the police. On the contrary, he pressed for the transfer of still further powers. He agreed with Himmler that now that some seven million people of foreign descent were living in the Reich, the judiciary was in no position to “keep down this mass of people” by itself.
⁵⁵
It is revealing of the attitude of the judicial leadership that at the meeting of the judiciary heads in Berlin, Thierack did not give the true reasons for the failure of the plan to put all “non-Germans” from the East, that is, Poles, Jews, Gypsies, and Russians, under the control of the police
⁵⁶
(protests by the Gauleiter in the Annexed Eastern Territories and by the Reich minister regarding the Occupied Eastern Territories),
⁵⁷
but spoke of a return to legality, the maintenance of the “non-German” workforce, and consideration for the foreign units in the Wehrmacht. In early 1943, the minister (he who as late as October 1942 had told the Party Chancellery that the judiciary could contribute to the extermination “only in a small measure)
⁵⁸
proclaimed that the situation was different from that of the previous fall, because “today we cannot go along with the idea that we should somehow exterminate these people,” if only because “many Easterners are fighting on our side.” So it was necessary to guarantee these “non-Germans” some sort of “court proceedings.”
⁵⁹

According to his statement,
⁶⁰
the situation regarding the penal treatment of “non-Germans” since 1941 was as follows:

a. Minor offenses were dealt with by the police, if it so wished: when workers were housed in camps, adjudication could take place in so-called camp courts, as was already partly the case in the East.

b. In line with the wishes of the ministry, the police dealt with all political offenses, as well as collective criminality by “non-Germans,” e.g., “outrages against Germans,” “forming gangs,” etc. The minister himself demanded “extreme harshness” in the “suppression and deterrence of whatever was hostile to Germans” punishment must follow close on the heels of the act, with or without summary court proceedings by the police, so that the hanging of such perpetrators by the police was “nothing special.”
⁶¹

c. The judiciary thus retained only the jurisdiction of serious isolated offenses by “non-Germans,” known as “middle grade” criminality, for which the minister demanded extreme harshness, just as “absolute severity” was now practiced against the Poles.
⁶²
In real terms, however, here as elsewhere the police still had unlimited powers of intervention. As a representative of the ministry explained with respect to the refractory behavior of the Poles, which was already quite substantial in the Altreich (where Poles “banded together” in the villages and openly sung Polish songs), the judiciary was capable of proceeding “with the harshest measures,” but such matters would not even come into its hands, and it was well so.
⁶³

As comprehensive as the guidelines on criminal law for “non-Germans” were regarding the status quo, they were less precise when it came to future action, if the police continued to take the law into its own hands. Minister Thierack was unable to recommend anything better to his chiefs of departments than to carry on as before, until things “finally sort themselves out,”
⁶⁴
not that this was ever the case, given the fundamental differences of opinion between the police leadership and the judiciary.
Ministerialdirigent
L. Schäfer, the responsible department head and rapporteur, expressed himself somewhat more clearly, although still not very explicitly: generally speaking, the line between the judiciary and the police should be drawn after “reasonable consideration of the prevailing circumstances” and should be based only on expediency; at the same time it should be not be forgotten that foreigners were needed for the workforce or even as soldiers in the East, so that, for example, workers from the Soviet Union needed to be treated differently.
⁶⁵

Regarding workers from the West and the North and the Italians, the police regulations “might as well” stay put. As for the Eastern workers, especially the Russians, involvement of both the police and the judiciary was “unbearable” in the long term. Since there was no question of letting the police take over completely, a delimitation of powers needed to be established. In cases such as moderate offenses by these people (“banding together,” for example) the jurisdiction should remain in the hands of the police, since in any case the judiciary did not have the necessary strong and speedy executive available. The same was true for minor offenses (e.g., violations of the work requirement and discipline) by Eastern workers, Poles and Jews, which could be “dealt with” by the police in order not to burden the courts.

An exception to the instructions on the treatment of Eastern workers was made for the Poles in the Annexed Eastern Territories. There the Decree on Penal Law for Poles exclusively applied, so that offenses by Poles would be punished either in the courts, by the police (summary police courts),
⁶⁶
or by specific police order prescribing prison camp.
⁶⁷
Punishment by the Gestapo alone was not permissible, because the empowerment of March 8, 1940, of the
Reichsführer
-SS by the plenipotentiary for the Four Year Plan did not apply to the Annexed Eastern Territories. All these differentiations were mere lip service, because “punishment” by the summary police courts always meant execution or committal to a concentration camp and because the prison camps where the police penal orders were executed were exclusively under the control of the police and as such were hardly different from concentration camps themselves.

Similar uncertainty reigned regarding procedure in the prosecution of “non-Germans.” At the Berlin meeting in February 1943,
Ministerialdirigent
Schäfer gave the instruction on behalf of the minister that in cases in which the police “claimed” a prosecution, there should be no attempt to hold onto the proceedings, an instruction that left it entirely up to the police to decide whether or not they would respect the jurisdiction of the judiciary.

In contrast, “serious criminality,” especially acts of violence against Germans, sexual offenses, assault, or threats against German employers, should, according to Schäfer, remain in the hands of the justice branch
⁶⁸
—a demand that the police had long not been bothered about, as we have seen. Things had even come to such a head that the rapporteur felt in necessary to stress how important it was that the judiciary should “avoid guaranteeing” to the police a particular outcome such as the death penalty in such cases.

In respect, too, of the normal obligation of the police authorities to leave investigations to the public prosecutor, the procedural rules had been turned on their head: from now on, as Schäfer put it, the judicial authorities were to “request” the police to pass on the defendant and the investigation procedure and to report to the ministry in the event of a refusal. Conversely, when the police demanded that the defendant be handed over by the judiciary, the instruction was anything but clear, only a report to the ministry being required.
⁶⁹

When all is said and done, all these instructions were a lost cause, designed to give the impression that the judiciary still had some influence in these matters. “Requests” by the judiciary to hand over a procedure or an individual or a report to the ministry had long cut no ice with the police; equally ineffectual were appeals to the chief presiding judges and the chief public prosecutors to point to “the legal situation” in the face of police interventions,
⁷⁰
for the police were far from taking such admonitions seriously, and matters had progressed much further than that. The vagueness of the ministry’s explanations shows how deeply the judiciary had been corrupted by police arbitrariness and how far advanced was the final dissolution of the whole legal framework. It also shows how necessary it was to conceal a situation that was experienced daily but which could never be stated out loud: that the judiciary was almost completely cut out from the prosecution of “non-Germans” (as well as of Germans in quite a number of areas), living off the crumbs thrown to it by the police, and that a “reasonable attitude toward the existing conditions” was nothing other than an endorsement of the arbitrariness of the Security Police. As early as 1941 the judiciary had wondered “to what extent the administration of justice still made sense.”
⁷¹
The ministry’s assurances that the situation was being clarified with the
Reichsführer
-SS and chief of the German police, after which “the friction would hopefully stop,” was but proof of the judiciary’s complete ignorance of police tactics. Clarification meant taking a stand, something that the police leadership abhorred. The ministry’s recommendation to the department chiefs “to steer their way through” as best they could
⁷²
until the situation became clear was a miracle of vague formulation that well described matters as they stood: a permanent need to steer their way through the tangled thickets of police powers and adaptation to escalating demands, ultimately leading to the almost complete abandonment of the prosecution of “non-Germans” to the police. Thus, legislative measures such as the Thirteenth Decree to the Reich Citizenship Law of July 1, 1943,
⁷³
which sanctioned the responsibility of the police for offenses by Jews, were quite unnecessary, since the hegemony of the police was such that—apart from the occasional exception—criminal cases were no longer brought to the notice of the judicial authorities of the Old Reich.