"Non-Germans" Under the Third Reich (96 page)

2. Führer Decree on the Division and Administration of the Eastern Territories, October 8, 1939

As mentioned above, the legal basis used for the practice of the “analogous application” was the regulation in section 7 of the Führer decree of October 8, 1939, under which “current law” continued in force where it did not contradict the “effect of assimilation.” The regulation served to justify the extensive application of penal law to the detriment of the “non-Germans,” by rejecting the
direct
continuation of the then current law (German law). The “effect of assimilation” was thus served only by the analogous application of German penal law. As was publicly admitted, this was effective whenever the direct application of German law “allowed no or only insufficient punishment”; in practical terms, this meant that the offenses defined by the law were arbitrarily strained so as to achieve the political goal of the harshest possible punishment of the Poles.

The most extreme example of the practice of analogous application is provided by the special-court trials of crimes committed by Poles against ethnic Germans at the beginning the war (“September crimes”), regarded as the most urgent task of the special courts, indeed of the judicial system itself.
¹⁵
To achieve the harshest possible punishment of the Polish defendants, numerous legal constructions were invented to circumvent the law, to allow the courts to prove that they were certainly not thinking “formally” when they passed down the maximum sentence. For instance, the offenses were stretched beyond all bounds by applying to these cases—where it turned out to be difficult to provide sufficient evidence—not the rules governing culpable homicide (homicide, second degree homicide, bodily injury) (secs. 211, 212, 223, et seq., Penal Code), but the rules governing breach of the peace (secs. 125 et seq., Penal Code). The former would have required the demonstration of a criminal offense or participation in one in each individual instance, whereas the rules governing breach of the peace allowed the mere
presence
at the scene of the crime as a crime,
¹⁶
in other words emphasized the collective element. Under these terms, it was allowable to punish someone as a criminal if all that were proven were his or her participation in riotous assembly, where an element of premeditation was present, that is, that the culprit was aware that acts of violence had been committed.
¹⁷
However, the definition of the offender was extended to the interpretation that the Polish defendants were accused of crimes against ethnic Germans committed at other locations where they were not present and of which they were totally unaware if the crimes “had been committed … as part of the bloody overall events,” with no detailed examination of whether the culprit had approved of these “overall events” (psychological accessory to a crime).
¹⁸

When deciding on the punishment, extensive use was also made of other regulations, since the possible punishments for breach of the peace (prison or hard labor) were insufficient for the desired atonement for such crimes; only the death penalty was judged suitable. For this reason, acts of violence by Poles against ethnic Germans were essentially regarded as aggravated armed breach of the peace,
¹⁹
to allow the application of the Decree on the Protection of the People and the State of February 28, 1933,
²⁰
under which aggravated armed breach of the peace could also be punishable by death (sec. 5, par. 2). The concept of “armed” was interpreted not in the technical sense but by “analogy” to the interpretation of section 223a of the Penal Code (dangerous bodily violence), such that all “dangerous implements” similar to a weapon, “such as cudgels, staves, axes, etc.,” were regarded as weapons under section 5, paragraph 2, of the decree of February 28, 1933.
²¹
Jurists noted with satisfaction that on the basis of this decree, the special courts issued “innumerable judgments” (death sentences) against Poles and that the courts were neither bothered by the extensive interpretation of the definition of a weapon nor by the fact that according the preamble to the decree of February 28, 1933, it had been issued “to prevent Communist acts of violence endangering the state,”
²²
although the reinterpretation of the original meaning and objective of this regulation was also contentious according to the view prevailing at that time.
²³
Indeed, an interpretation contradicting the purpose of this decree was absolutely vital for the National Socialist jurists, because without further ado, the need for revenge for the “September crimes” was declared to be the “entire objective” of the decree of February 28, 1933. This was the only solution that would allow the prosecution of “many Polish atrocities to be successful in accordance with the purpose and task of the law.”
²⁴

In other fields, the special courts ruled similarly: based on section 7 of the Führer decree of October 8, 1939, they applied German penal law
²⁵
partly directly, partly “analogously” in order to come to punishments as harsh as possible.
²⁶

For instance, the Decree on Extraordinary Broadcasting Measures of September 1, 1939,
²⁷
which provided for hard labor for listening to foreign broadcasts, or the death penalty for particularly severe cases, and introduced in the Annexed Eastern Territories by a decree of April 29, 1940,
²⁸
was applied even before it had come into force.
²⁹
Without any formal implementation, the Explosives Law of June 9, 1884,
³⁰
the Decree on the Protection of the People and the State of February 28, 1933,
³¹
mentioned above, the Law on the Prevention of Acts of Political Violence of April 4, 1933,
³²
the Law to Guarantee the Public Order of October 13, 1933,
³³
the Treachery Law of December 20, 1934,
³⁴
and the Law against Economic Sabotage of December 1, 1936,
³⁵
were all applied directly. Penal regulations already slanted toward a special law for particular groups “of danger to the community” or that were “alien,” such as the Decree on Parasites upon the
Volk
of September 5, 1939,
³⁶
the Decree against Violent Criminals of December 5, 1939,
³⁷
and the Blood Protection Law of September 15, 1939
³⁸
(this latter applied only to Germans),
³⁹
were also applied directly, although they were implemented formally only with the decree of May 31, 1941.
⁴⁰

German penal law was also applied directly to cases in which “the former Polish penal law provided for a more lenient sentence or even exemption from punishment.”
⁴¹
Under Polish law, for instance, indecency between men (sec. 174 Penal Code, old version), was punishable only if committed for pecuniary gain (sec. 207 of the Polish Penal Code of July 11, 1932); protection against seduction (sec. 182, Penal Code) was granted only to female minors under the age of 15 (sec. 203 of the Polish Penal Code); abortion on ethical grounds under medical supervision were generally permitted in cases of pregnancy resulting from sexual offenses (sec. 233 of the Polish Penal Code),
⁴²
whereas under German law, the prohibition on abortion under section 218 of the Penal Code applied. In such cases, the harsher provisions of German law were, of course, applied.
⁴³

In contrast, the deviation from statutory law, that is, merely “analogous” application, was always regarded as imperative if required by the interests of the development of the Eastern Territories.
⁴⁴
These interests demanded, for instance, that “non-German” defendants should also be punished
contra legem
even if this would have been prohibited under German penal law.

Examples: in the question of aggravation of penalty due to recidivism (theft, receiving stolen goods, fraud) requiring two sentences for the same type of crime “within Germany” (secs. 244, 261, 264, Penal Code), sentences not only within the territory of the German Reich, but also sentences by Polish courts in the recently annexed Annexed Eastern Territories
before
September 1, 1939, indeed even in the General Government, were taken into consideration.
⁴⁵
Although this practice was implemented in all annexed territories (Austria, the Protectorate),
⁴⁶
the legal substantiation there was that the former law continued in force in these territories; Poland was a special case, since the total downfall of the Polish legal system was assumed. Occasionally, sentences from part of eastern Poland, occupied by the Soviet Union between 1939 and 1941, were even recognized as domestic German sentences, to procure additional potential for harsher sentences in the “struggle against habitual Polish criminals.”
⁴⁷
In passing sentence on cases of body-snatching that had occurred at the beginning of the war, the courts applied neither the relevant regulation of section 168, Penal Code (removal of the dead: maximum sentence two years of prison), or section 246, Penal Code (misappropriation: maximum sentence five years of prison), to Polish defendants, because this “could not do justice to the extent of wrongdoing of such a deed.” The remedy chosen was to use a peculiar solution via the analogous application of section 243, paragraph 1, number 1, Penal Code (aggravated theft in the form of removal of objects serving for religious services from buildings designated for religious services: maximum sentence ten years of hard labor), with the aim of thereby assuming a property offense characterized by the “object of the crime and the nature of its perpetration”
⁴⁸
and thus achieving a harsher sentence, although there were no elements of such an offense whatsoever.

3. Decree on the Implementation of German Penal Law in the Annexed Eastern Territories, June 6, 1940

It was realized gradually that the practice of applying German law to meet the political considerations of the moment could not be upheld in the long term. For reasons of certainty of the law, statutory standardization of the law was imperative. This standardization was implemented in early summer 1940 by the Decree on the Implementation of German Penal Law in the Annexed Eastern Territories of June 6, 1940
⁴⁹
(Implementing Decree). With this decree, the Ministry of Justice was able once again to prevail over the Party and the SS and police leadership, which had from the outset urged the decree of overt special law for the Polish inhabitants of the Annexed Eastern Territories.
⁵⁰

In formal terms, the Implementing Decree did away with the previous lawless state and established the administration of justice on a firm basis, by introducing major elements of German substantive and procedural penal law with clearly defined possibilities of appeal.
⁵¹
Although practitioners regarded this decree as merely the legalization of the previous practices in the application of the law, in other words saw it as merely confirming the existing legal situation,
⁵²
its very existence embodied a certain security in the law compared with the earlier situation.

The extent to which the earlier lack of a secure legal basis was perceived as an uncertainty factor is demonstrated by the provision of section 7 of the Implementing Decree. Under this, the formally implemented substantive German penal law introduced by section 1, number 1, and sections 1–15 of the Juvenile Court Law of February 16, 1923,
⁵³
was also to be applied to crimes committed in the Annexed Eastern Territories
before
the coming into force of the decree. Furthermore, all decisions and orders issued by German courts and criminal prosecution authorities after September 1, 1939, were declared valid retroactively, if they corresponded to the Implementing Decree directly or analogously, an arrangement that would have been unnecessary if the principle of analogous application had in fact been taken seriously and anchored as firmly in practice
⁵⁴
as the relevant comments would have one believe.

However, this state of relative security in the law was eroded again by the provision of section 2 of the Implementing Decree, which formally reaffirmed the “racial policy” qualification, opening the floodgates to all forms of special law. Section 2 stated that where a regulation coming into force was not to be applied directly, it should be applied “analogously,” without describing the preconditions for this analogous application.

This concealed a host of risks. The principle of analogous application was also contained in section 2 of the Penal Code
⁵⁵
—in this respect, section 2 of the Implementing Decree was superfluous, because the Penal Code applied in the Annexed Eastern Territories in any case—but relatively little use was made of it in the Altreich, because the idea of punishment without a legal standard was alien to the judiciary, and much more use was made of “extensive interpretation” (of the law).
⁵⁶
In contrast, there were many fewer reservations in the Annexed Eastern Territories about abandoning the principle of
nulla poena sine lege
. Due to the initial lack of legal standards, the courts and prosecuting authorities were used to making decisions without any formal basis in law. For this reason, section 2 of the Implementing Decree offered an opportunity to apply and extend infinitely all regulations of Reich penal law, irrespective of whether they had been implemented in the Eastern Territories or not, so that the purpose of the Implementing Decree—to enable the conclusive regulation of prevailing penal law provisions, was not achieved.
⁵⁷