"Non-Germans" Under the Third Reich (103 page)

The draconian punishment practice of the Zichenau Special Court is particularly clear if compared with that of the Königsberg Special Court. In the first half of 1942, the Königsberg court passed 645 sentences, including 56 death sentences, corresponding to a ratio of around 11.5:1. In the same period, the Zichenau Special Court passed around 310 sentences, including 72 death sentences,
⁷⁸
a ratio of 4.3:1.

The
Reichsgau
Danzig–West Prussia proved to be relatively “moderate,” with “only” 154 executed death sentences passed in 1942;
⁷⁹
no figures are available for the Kattowitz Appeal Court district for 1942.

After 1942, the figures started to drop, but they were still very high. In the Warthegau, 508 death sentences were carried out in 1943 (December 25, 1942–December 23, 1943), 188 in the Zichenau Administrative District, 70 in Danzig–West Prussia, and around 97 in the Kattowitz Appeal Court district.
⁸⁰
In 1944 the death sentence was passed in the Warthegau in 291 trials, with 6 of the accused being pardoned; 188 death sentences against Poles and Jews were executed; in the Zichenau Administrative District, at least 69 death sentences were executed; in Danzig–West Prussia (by October 1944), 53; and in the Kattowitz Administrative District, around 14.
⁸¹

Overall, 1,129 death sentences (against Poles and Jews) were therefore documented as having been executed in the Annexed Eastern Territories in 1942. If one remembers that the vast majority of death sentences in the Annexed Eastern Territories were imposed on Poles, and that only a very few sentences in the Annexed Eastern Territories were ever reprieved,
⁸²
a total number of around 1,100–1,200 executed death sentences against Poles (and Jews) would be a realistic figure for 1942.

The official figures from both the Eastern Territories and the Ministry of Justice
⁸³
show considerably lower numbers; furthermore, they relate only to the death sentences
passed
by the courts, not those actually carried out. For this reason, these figures cannot be compared with the number of executions stated above. Any comparison with the Ministry of Justice figures in the
Führerinformationen
is also impossible, because this number relates to the total death sentences passed (on Poles and Germans).
⁸⁴

In 1943 and 1944, the number of death sentences fell. For 1943, the execution lists number around 863, and for 1944 around 324 executed death sentences.
⁸⁵

The deterrence practiced in the Annexed Eastern Territories becomes all the more clear if it is compared with the overall sentencing practice in the Altreich. According to the (confidential) Reich crime statistics,
⁸⁶
63,786 persons (i.e., Poles and Jews) were sentenced under the Decree on Penal Law for Poles, including 930 death sentences, whereas 341,540 unappealable sentences were passed on Germans and foreigners (apart from Poles and Jews in the Eastern Territories), of which 1,061 were sentenced to death. This shows that where the Decree on Penal Law for Poles applied (principally in the Annexed Eastern Territories), the ratio was around 1 death sentence per 68 sentences, but around 1 per 356 in the Reich, so that the rate of death sentences for Poles and Jews solely under the Decree on Penal Law for Poles was about
five times higher
than for Germans, not to speak of the death sentences for Poles and Jews passed on the basis of
other
penal law provisions, these not being stated separately in the crime statistics.

However, it must have been the case that the sentencing practice of the courts frequently still did not fulfill the desires of the political leadership and the local judicial administration for the implementation of the Decree on Penal Law for Poles, because the situation reports of the appeal court presidents and the chief public prosecutors very frequently mention criticism of judgments by political officials and—despite all the assertions about the “penal law for Poles having proven itself”
⁸⁷
—complaints about the lack of appreciation of many judges for the “ethnic policy situation” in the Annexed Eastern Territories. For instance, the Königsberg Appeal Court president complained in his situation report dated May 4, 1942, that the “young, receptive judges” were at the front, but it was “very difficult” for the older judges “to divorce themselves from traditional views,” “despite their good intentions[!].”
⁸⁸

The penal law for Poles, originally welcomed with enthusiasm by the senior judicial officials, was still obviously not being applied radically enough for many of them; this shows that even “National Socialist justice” could not be turned into limitless arbitrariness. Whether through their own awareness or for other reasons, many were not at all satisfied with the Decree on Penal Law for Poles or its contents. As early as the beginning of 1941, for instance, the president of the Danzig Court of Appeal demanded further training for judges and public prosecutors so that they could learn the “special duties of the administration of justice in the Annexed Eastern Territories,” after Party offices had openly scorned the “incompetent judiciary.”
⁸⁹
The Posen chief public prosecutor, who had always supported a hard line in the penal law for Poles, wrote to the Ministry of Justice in 1942 that public prosecutors were of the opinion that despite the guidelines and instructions of the chief public prosecutor, the Decree on Penal Law for Poles had not met expectations “in full” and that court rulings differed from district to district, a development that could only be redressed in part by uniform control. The success of the Decree on Penal Law for Poles depended on the individual court, it was claimed, and it was evident that attitudes toward “the Polish people and the demands of the administration of penal justice in wartime” differed considerably. The courts had not “exhausted the entire potential of the Decree on Penal Law for Poles.”
⁹⁰

That differing opinions on the treatment of “non-Germans” under penal law held sway even in the extremely anti-Polish Warthegau (or Wartheland) is also shown by the fact that there were reservations about the decree’s minimum prison sentence of three months’ prison camp because it was too high for petty offenses; that some local courts of first instance had therefore passed sentences of less than three months was sharply rebuked by the Posen chief public prosecutor.
⁹¹

These differences in sentencing practice became increasingly irrelevant, because since around mid-1942, the police steadily usurped the administration of penal justice against “non-Germans,” particular for petty and less serious crimes; by 1943 it had largely eliminated the judiciary from the criminal prosecution of “non-Germans.”

EXCURSUS

Encroachment upon the Jurisdiction of the Judiciary: Extension of Police Jurisdiction for Criminal Matters

1. Efforts by the Police to Create a Police “Penal Law for Alien Peoples”

The preceding examination of the sentencing practice of the courts in the Annexed Eastern Territories could lead the reader to conclude that even the most minor offense by Poles or Jews was prosecuted by the judicial authorities. However, the activities of the judicial authorities accounted for only a part of the administration of penal law against Poles and Jews; from the outset, major elements of criminal prosecution had been usurped by the police, and over the years—at the latest, from 1943 onward—the judicial authorities were increasingly pushed into a background role, in the end being excluded almost totally. As explained above, the goal of the SS and police leadership right from the start had been to enforce a total special law for “non-Germans”: the SS and police alone, not the judicial authorities, were to have total control of its administration. In contrast to the Reich territory, where the jurisdiction of the courts was still anchored relatively firmly, with the result that there had been no opportunity of enforcing in the Reich a uniform policy on the criminal prosecution of Poles and Jews in the sense of the radical course outlined above, the efforts of the police in the Annexed Eastern Territories met with great success for several reasons.

The first of these was that the traditional administration and the traditional administrative principles, still oriented in the Third Reich to the principle guaranteeing the general liability of the law in the formal sense, either were weak or had been forced completely into the background: as has been shown, the Annexed Eastern Territories were the domain and testing ground of the “ethnic struggle,” to which the principles of Reich law were not applied.

Secondly, the considerable, indeed dominating influence of the NSDAP contributed to the weakening and undermining of the traditional administration: embodied in the Gauleiter, the local Gau Office for Ethnic Policy, and the NSDAP Gau Legal Office, the Party cooperated closely with the SS and police leadership; the aim of both organizations was to avoid any definition whatsoever in (penal) law of regulations for “non-Germans.” Under the authoritative influence of Bormann (as head of the Office of the Deputy Führer), the central Party leadership fully supported these efforts by the SS and police leadership in both the Altreich and the Annexed Eastern Territories. With his appointment as head of the Party Chancellery and the conferment on him of the powers of a Reich minister by a Führer decree of August 20, 1942,
¹
Bormann’s additional status as member of the Reich government and the Ministerial Council for the Defense of the Reich gave him a direct influence on government legislation, as he was now to be included as a “participating Reich minister” in all legislative work.
²

The third and most important reason why the police were able to assert their authority in the Annexed Eastern Territories much sooner than in the Reich, however, was because the police were free from constitutional or administrative “scruples,” regarded legal statutes as no more than a technical means to enforce their own goals, and knew what they wanted from the outset, whereas the Reich administration had no concept of its own. What the police had in mind was the creation of a “special penal law” for all “non-Germans” in the East (Jews, Poles, Russians, etc.) under the exclusive jurisdiction of the SS and police, which the regular judicial authorities would be unable to interfere with; in other words, the creation of its own
police jurisdiction
for “non-Germans.” Particularly the Annexed Eastern Territories, in which the population was more than 90 percent “non-German” and “inferior,” were the ideal testing ground for developing for the first time in the history of the Third Reich a police “penal law for alien peoples,” in which statutory regulations were regarded as being of minor importance and the existing legal tradition was perverted, indeed eliminated almost in full.

Given this interpretation of a general claim of police jurisdiction for all offenses committed by “non-Germans,” any jurisdiction of the judicial authorities over criminal offenses committed by “non-Germans” would necessarily appear from the beginning as unwarranted interference that demanded vigorous resistance, not only on matters of principle, but also because the application of any judicial standards in the criminal prosecution of “non-Germans” must be avoided at all costs. As the police saw things, exclusively ethnic aspects enforced by the police, judging the subject “non-Germans” as either being useful to the German national community (for labor) or as “antisocial parasites” who should be “eradicated,” should apply to such cases. The extent to which the ideas of the police about a “special penal law” for “non-Germans” were governed by the aspect of the “eradication of antisocial parasites” is shown, for example, by the views of Himmler, who told Minister of Justice Franz Gürtner, after the execution by the police of a mentally deficient Polish woman, that the execution was justified because the national community demanded that “antisocial parasites … be eliminated … irrespective of any legal impossibility of guilt.”
³
In the eyes of the police, therefore, any application of German penal legislation to the “non-Germans,” even if it had been revised or recreated to meet National Socialist goals, was bound to be viewed as a hindrance. This claimed general jurisdiction provides a clue to the conflicts with the Ministry of Justice, which steered a zigzag course in the face of the resolute demands of the police, as does the fact that all concessions by the judicial authorities resulted only in an increasing number of new demands by the police and the Party. For the police leadership, concessions on any points, however important they might be, right up to the abandonment of all principles of German legal tradition, meant nothing more than a cure for the symptoms, not the elimination of the root of all evil: the independent judiciary. What they really wanted to do was eliminate the judiciary as an institution. And in the Annexed Eastern Territories, they succeeded in doing so to a great extent.

The specific notions of the police and Party leadership about a special penal law for Poles and Jews were diametrically opposed to the efforts of the Ministry of Justice to adhere to Reich penal law, albeit including special regulations for “non-Germans” where this proved necessary.
⁴
Both agreed that the application of German penal law did not meet “the special conditions in the East” and hampered the freedom of action of the German authorities unnecessarily. As Bormann explained to the head of the Reich Chancellery in this context, the “Führer had recently repeated that the implementation of Reich law in the Annexed Eastern Territories would mean making work difficult, even impossible, for the men charged with the task of reorganization.” The Führer expected only one report from his Gauleiters, namely that their district was purely German. It was for him “an irrelevance if at some time in the future it is established that the methods for gaining this territory had been unsightly or legally objectionable.”
⁵