"Non-Germans" Under the Third Reich (243 page)

90.
Minutes of a discussion among the presiding judges of the Hamburg courts on February 1, 1939, quoted in Johe,
Die gleichgeschaltete Justiz
, 160.

91.
Cf. the reports of July 22 and November 18, 1941, by the presiding judges of the Hamburg district courts (archives of the Hanseatic Court of Appeal [LG (State Court of Appeals) 3130-E], quoted in Johe,
Die gleichgeschaltete Justiz
, 167).

92.
Memorandum of January 24, 1939 (see note 87 above). There was no objection to “purely preventive” protective custody, but “adjustment of decisions” should not be “overzealous.”

93.
Ibid. (report from the Court of Appeal district of Darmstadt).

94.
This applied particularly to prisoners under a preventive detention order, for whom the concentration camp appeared to be the most suitable place to be held. The police therefore interpreted the term
habitual offender
referred in the law of November 24, 1933 (
RGBl
. I 995), in an extremely broad fashion as that of a potential prisoner under a preventive detention order.

95.
This practice is, for example, evident in a confidential circular instruction from the Reich Ministry of Justice dated August 18, 1942, in which the courts had to be expressly ordered not to neglect “serious consideration” of the question whether preventive detention under the terms of sec. 42e of the Penal Code [where it was called
Sicherungsverwahrung
—Trans.] should be imposed in the conviction of so-called dangerous habitual offenders, because
Vorbeugehaft
[another form of preventive detention—Trans.] was possibly called for (Erlaßsammlung, BA Koblenz). The instruction, one of Schlegelberger’s last official actions, was an attempt to prevent complete control by the police over this category of people.

96.
Reich Ministry of Justice memorandum of January 24, 1939 (see note 87 above) (report from the Court of Appeal district of Hamm); see also Celle Court of Appeal, December 5, 1947 (
MDR
[1940]: 174). Ostler,
Die deutschen Rechtsanwälte
(1971), 279 n. 76, with references, and Schorn,
Der Richter im Dritten Reich
(1959), 593.

97.
Cf. the report by the presiding judges of the courts of appeal and chief public prosecutors dated December 3, 1941, in which the complaint about the execution of people suspected by the Gestapo of high treason is claimed to be based on RFSS orders: the judiciary was quite capable of rapid adjudication.

98.
Reports of November 18 and July 22, 1941, quoted by Johe,
Die gleichgeschaltete Justiz
, 167.

99.
Cf., for example, Hitler’s criticism of the decision of October 21, 1940, by the Lüneburg Court of Appeal against a Pole who had been convicted and sentenced to
one
year’s imprisonment for rape (sec. 176, par. 1 of the Penal Code) on account of the “lack of inhibition” of the Poles with regard to such offenses. Although the Führer only had the Reich Ministry of Justice “requested” to ensure that “this would not be
repeated
in
other
courts” (author’s emphasis) (letter of March 29, 1941, from the RMuChdRkzlei to the Reich Ministry of Justice, Nuremberg doc. NG-280), the judges of the criminal court in question were immediately transferred and no longer employed in penal matters; the competent presiding judge of the Court of Appeal and the judges involved were taken to task by the Reich Ministry of Justice. The “ineptness” of the ruling was further circulated to all the judicial authorities of the Reich by way of a circular instruction (letter of April 3, 1941, from the Reich Ministry of Justice to the RMuChdRkzlei [ibid.]). In the case of A. Scharff, too, a youth who was convicted to a lengthy term of imprisonment for acts of collusion, Schlegelberger originally acknowledged Hitler’s principle of severe punishment (see the letter of May 25, 1941, from the “Führer’s secretary” [Bormann] to the RMuChdRkzlei, Nuremberg doc. NG-611, also
VjhZ
[1958]: 419), before putting forward the attenuating circumstances of the case (the young age and good previous record of the offender), on the basis of which he believed that “we should stay with the judgment as passed” (letter of June 28, 1941, to the RMuChdRkzlei, ibid.). When Hitler criticized the sentencing of Luftglass, a 74-year-old Jew accused of hoarding eggs (violation of the War Economy Decree) to “mere” imprisonment (letter of October 25, 1941, from the RMuChdRkzlei to the Reich Ministry of Justice, Nuremberg doc. NG-287A, quoted in
VjhZ
[1958]: 422), Schlegelberger immediately capitulated. By his own personal order (letter of October 29, 1941, to the RMuChdRkzlei, Nuremberg doc. NG-287 B, quoted in
VjhZ
[1958]: 423), the prisoner was put into the hands of the Gestapo (for execution), whereby the Reich Ministry of Justice was spared the embarrassment of having to amend the judgment itself. In contrast, there is evidence of other rulings that gave rise to the disapproval of Hitler or the police and were “adjusted” by the judicial authority itself—with the aid of a plea of nullity (examples in Johe,
Die gleichgeschaltete Justiz
, 168 f.). Regarding the plea of nullity, see sec. 34, art. 5, of the so-called Jurisdiction Decree of February 21, 1940 (
RGBl
. I 405); sec. 7 of the decree of August 13, 1941 (
RGBl
. I 508); RGSt (Supreme Court for Criminal Cases) 74, 75 f., 307; affidavit of December 7, 1946, by the lawyer Ernst Escher (Nuremberg doc. NG-677); statistics in the report of August 29, 1944, from the Reich attorney general at the Reich Supreme Court to the Reich Ministry of Justice (BA R 22/1112). See also
Richterbriefe
no. 16 of January 1 and February 1, 1944, item 39 (BA R 22/4002, Bl. 138, 149); Fraenkel, “Die Nichtigkeitsbeschwerde in der Praxis” (1941); Schwarz, “Reichsgericht als Tatsacheninstanz” (1940); Weinkauff and Wagner,
Die deutsche Justiz
, 271 ff., with numerous examples.

100.
Statement made by State Secretary Schlegelberger on March 10, 1936, quoted in Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeβ
, 158.

101.
The explanation given by Weinkauff and Wagner,
Die deutsche Justiz,
143, that the severity of the judgments was based on Hitler’s own repeated threats and emotional fits, to which the ministry deferred, is not a satisfactory one. Hitler’s supply of information and his outbursts against the judiciary were sporadic and had no influence on judicial practice. Hitler’s mind was taken up with quite different, more important matters. The fact that the political leadership was able to gain such direct influence is due above all to the passivity of the ministry.

102.
Hitler quoted in
Der Groβdeutsche Freiheitskampf, Reden A. Hitlers
(1943), 147 f. For Schlegelberger’s decree, see Nuremberg doc. NG-507 (also quoted by Johe,
Die gleichgeschaltete Justiz
, 53). The circulated passage read, verbatim, “Just as we have been mercilessly severe in the struggle for power, so we will be equally merciless and equally strict in the struggle for the preservation of our people. At a time in which thousands of our best men are falling, nobody who slurs the victims of the front at home can count on his life” (quoted from the Reich Ministry of Justice decree of December 15, 1941, Johe,
Die gleichgeschaltete Justiz
, 53 n. 139).

103.
Letter of May 21, 1942, from the RMuChdRkzlei to the head of the Party Chancellery (Nuremberg doc. NG-236).

104.
Letter dated May 6, 1942, by way of the RMuChdRkzlei to the Führer and Reich Chancellor containing the draft of such a decree (Nuremberg doc. NG-102, quoted in
VjhZ
[1958]: 426 f., 428; also in Weinkauff and Wagner,
Die deutsche Justiz,
149).

105.
Letter of June 10, 1942, from the head of the Party Chancellery to the Reich Ministry of Justice (Nuremberg doc. NG-102; also in Weinkauff and Wagner,
Die deutsche Justiz,
150) (the Führer should have the final say over decisions).

106.
RGBl
. I 995.

107.
“Preventive detention matters,”
DJ
(1938): 626.

108.
RGBl
. I 995.

109.
In the early years of the Third Reich, political motives were doubtless at the bottom of the relatively large number of preventive detentions. There were 6,835 cases between 1933 and 1937 (Freisler, “Fragen zur Sicherheitsverwahrung”), or 6,898 (of which 3,723 were pronounced in 1934 alone), according to the Reich criminal statistics (
DJ
[1943]: 377 n). The figures in the text are also from this source.

110.
RGBl
. I 539.

111.
Hitler in Picker,
Hitlers Tischgespräche
(1951), 203.

112.
DJ
(1938): 323.

113.
In the Reich Ministry of Justice circular instruction of May 4, 1940 (quoted in Johe,
Die gleichgeschaltete Justiz,
150), the courts were forbidden to release prisoners for the duration of the war.

114.
Letter dated June 10, 1942, from the head of the Party Chancellery to the Reich Ministry of Justice (Nuremberg doc. NG-102).

115.
Statement by Schlegelberger on June 27, 1947, before Military Court 3 in Nuremberg, Nuremberg Trials III, Prot. (d), 4324, BA All. Proz. 1, XVII A 58; according to him, Hitler was informed about the judiciary by Bormann only when he was already in a rage for some other reason and needed a “lightning conductor.”

116.
Schlegelberger in a letter dated May 15, 1942, to the RMuChdRkzlei (BA R 22/4089, Bl. 3).

117.
An almost complete collection of issues of
Führerinformationen
exists in BA R 22/4089 (nos. 36, 66, 181, and 189 are missing). Discussed in detail in Gribbohm, “Die Führerinformationen des RMJ” (1971).

118.
The collection ceases with issue 191 dated February 15, 1945. Letter of May 15, 1942, to the head of the Party Chancellery (quoted by Gribbohm, “Die Führerinformationen des RMJ”).

119.
The top copy was intended for Hitler, and one copy each for the Reich Ministry of Justice, the Party Chancellery, and the Reich Chancellery.

120.
In connection with the purpose of the publication, see the affidavit by Schlegelberger’s right-hand man, Dr. Gramm, of July 3, 1947 (Nuremberg doc. NG-1884). Quotation in a letter dated May 15, 1942, from Schlegelberger to the RMuChdRkzlei, quoted by Gribbohm, “Die Führerinformationen des RMJ.”

121.
See Gribbohm, “Die Führerinformationen des RMJ,” 153, for details.

122.
The reports were devoted primarily to proceedings against prominent people, such as those instituted by the People’s Court against the former
Ministerpräsident
of the Protectorate, Beran, and against H. Grynszpan, who in 1938 shot a member of the staff of the German Embassy in Paris, Ernst v. Rath (report of May 15, 1942); details in Heiber, “Der Fall Grynszpan” (1957). Further relevant reports will be found in nos. 172, 173, and 190 (BA R 22/4089).

123.
Führerinformationen
nos. 18, 23, 65, 68, 136, and 160 (see note 117 above). According to a communication in no. 132, more than two thousand sexual offenders had been castrated by order of the courts as of January 1, 1941.

124.
The minister of justice reported that a total of 3,641 death sentences (2,760 in the Reich and 881 in the Annexed Eastern Territories from July 1 to December 31, 1942) had been pronounced and a petition for clemency submitted, two and a half times as many as all the death sentences (1,400) pronounced between 1907 and 1932 (this last figure in Leber,
Das Gewissen entscheidet
[1957], 20 f.). In January and February 1943 alone, the
Führerinformationen
reported 806 death sentences (Reich, 615; Annexed Eastern Territories, 191).

125.
On the prisons, cf. nos. 11, 34, 41, 57, 83, 93, 103, 138, 185, and 187 (BA R 22/4089). On the execution of sentences, see
Führerinformationen,
December 9, 1944 (ibid.), according to which 197,867 individuals (including 48,017 women) had been detained as of December 1944; these included 72,804 held in penitentiaries, 47,098 in prisons, 2,757 in preventive detention, and 15,774 Poles in prison camps). The large number of penitentiary inmates evidences the increased severity of the jurisdiction. See
Führerinformationen
of November 4, 1942 (ibid.), according to which the number of “employable” prisoners was 152,700 as of October 1, 1942. On May 21, 1942, the minister of justice reported that he had imposed the “obligation to inflict decisive and severe punishment above all on war criminals” on all the presiding judges of the courts of appeal and chief public prosecutors (ibid.). The report dated May 29, 1942 (ibid.), states that “Communist high treason” (
kommunistischer Hochverrat
) should regularly be punished by death, “because today it also has the character of
Landesverrat.
” [A distinction is drawn in German between two types of high treason,
Hochverrat
and
Landesverrat,
the first meaning betrayal by means of violence, the second, without violence—Trans.] On July 10, 1942, the Reich Ministry of Justice pointed out that in the wake of instructions it had issued, the courts were frequently criticized in official Party quarters for excessively harsh penal practice (ibid.).