"Non-Germans" Under the Third Reich (244 page)

126.
There is certainly some evidence that the
Führerinformationen
were submitted to Hitler in 1942 at least, since in a letter from the Party Chancellery to the Reich Ministry of Justice dated October 31, 1942, Bormann explains the Führer’s position regarding certain points in the
Führerinformationen
(BA R 22/4089).

127.
See the letter of June 10, 1942, to the Reich Ministry of Justice (Nuremberg doc. NG-102) claiming to represent Hitler’s view.

128.
Statement by Schlegelberger in Nuremberg on September 6, 1946 (Nuremberg doc. NG-097), that he “did not want to sit at the same table” as Thierack (note by Schlegelberger dated August 30, 1946, Nuremberg doc. NG-125).

129.
According to the press release in
DJ
(1942): 551, at the time of his inauguration, Thierack (b. 1889), a lawyer from Saxony, was minister of justice there from 1933 on, and then minister of justice of Thuringia as of 1935. After the judicial administration had passed into the hands of the Reich, he was made deputy presiding judge of the Reich Supreme Court in 1935 and presiding judge of the People’s Court on June 1, 1936. In the spring of 1932, he joined the Party and climbed to the rank of
Oberbefehlsleiter
and
SA-Brigadeführer.
He held a high position in the Academy for German Law, and when Hans Frank fell into disfavor on account of his sharp criticism of SS and police policy in the General Government, he took over the leadership of the NSRB and the chairmanship of the Academy for German Law. With his nomination to the post of Reich minister of justice on August 20, 1942, Thierack held power of the highest state and Party offices in the judicial domain.

His appointment was due not least to his conduct in the “Eliáš case,” where as presiding judge of the People’s Court, in complicity with Heydrich, he maneuvered to replace the Reich attorney general by the SS as representative of the prosecution, thus gaining the favor of Hitler and the Security Police. After that he was known at Führer headquarters as the “alert judge,” although he lost the confidence of most of his colleagues in the judiciary (at least according to Heiber, “Der Fall Eliáš,”
VjhZ
[1955]: 275 ff., 277, 295).

130.
Affidavit by the former public prosecutor of Wiesbaden, Dr. Hans Quambusch, November 22, 1946 (Nuremberg doc. NG-397). It appears that not only legally convicted prisoners fell victim to such actions, but also individuals held in custody who had been charged with offenses punishable by death (defeatist statements, etc.). Quotation in Heiber, “Der Fall Eliáš,” 277, 295.

131.
Situation report of November 30, 1942, from the Brunswick Court of Appeal (BA R 22/3357); the reception of the change among the judiciary authorities was not reported.

132.
See Thierack’s memorandum of September 18, 1942, on the discussion (Nuremberg doc. PS-654; BA R 22/4062; copy also in ZS, G.J. no. 104, 255 f.).

133.
Memorandum of September 18, 1942 (ibid.); it was proposed to lower the age of criminal responsibility to 12 years and to introduce flogging, which reputedly had been ordered by Hitler, as a general measure (point 6: “the RFSS is completely in agreement with the proposed regulations for flogging as ordered by the Führer”).

134.
The judgments contested by the RFSS were generally those by the regular courts (district courts and municipal courts) but also judgments by special and military courts, which were submitted to the Reich Ministry of Justice
without
a request for adjustment having been made (see letters of November 28, 1942; June 9, December 2, 1943; February 13, October 6, 1944, from the head of the Security Police and Security Service; and of October 22, 1942, from the head of the Security Police and Security Service to the Party Chancellery, BA R 22/4203). The Reich Ministry of Justice investigated each case and then communicated “the action taken” to the head of the Security Police and Security Service: either an instruction to the Reich attorney general to lodge a plea of nullity, a “suggestion” of police custody (that is, transfer to a concentration camp) in the case of people who had been discharged, or a thorough exposition of the facts of the case, if it was desired that the judgment remain (see, e.g., the letter of February 23, 1943, from the Reich Ministry of Justice to the head of the Security Police and Security Service [ibid.]; in three of the eight cases contested by the head of the Security Police and Security Service in his letter of November 28, 1942 [ibid.], the Reich Ministry of Justice arranged for a plea of nullity to be lodged) (see note 99 above). In the great majority of all cases, the Reich Ministry of Justice acceded to formal “applications” for “adjustment.” In October 1942 alone, no less than 72 such “applications” were made (applications of October 1942 [precise date unknown] from the head of the Security Police and Security Service to the Reich Ministry of Justice by way of the Party Chancellery [Klemm], in some cases with a handwritten note in the margin, “to Dept XV,” BA R 22/4202 [Dept. 15 of the Reich Ministry of Justice was responsible for selection of the prisoners to be handed over to the Gestapo]); reply of February 2, 1943, to the head of the Security Police and Security Service (ibid.): in 43 cases the prisoners were ordered to be “handed over to the Gestapo” for work in concentration camps; in 10 cases the Reich Ministry of Justice arranged for a plea of nullity to be lodged; in 3 cases the pretrial confinement period was not counted; in 5 the order was to hand over the prisoners for “special military use”; in the case of 2 prisoners who had been released, the Reich Ministry of Justice suggested preventive police custody (i.e., transfer to a concentration camp). In 9 cases the original judgment was maintained.

135.
Minutes of meeting, September 18, 1942 (BA R 22/4062).

136.
See the letter of October 1942 from the head of the Security Police and Security Service to the Reich Ministry of Justice (BA R 22/4202), containing a total of sixteen applications for “special treatment.”

137.
Note by the Reich Ministry of Justice on a discussion with the RMuChdRkzlei (Lammers) on October 1, 1942 (BA R 22/4062). Statements by Hitler on so-called habitual offenders, quoted in Picker,
Hitlers Tischgespräche
(1951), 203. Such people were “put into concentration camps or done away with.”

138.
Thierack’s memorandum of September 18, 1942 (BA R 22/4062; Nuremberg doc. PS-654).

139.
Memorandum from the Reich Ministry of Justice (no author, undated), presumably spring 1943 (BA R 22/1262), according to which 7,600 people were in protective custody in German prisons, 31,000 “ethnic Poles” and approx. 1,200 Jews.

140.
Führerinformationen
no. 41 of June 12, 1942 (BA R 22/4089) (males under a preventive detention order only).

141.
Memorandum of September 18, 1942 (ibid.). See also the secret Reich Ministry of Justice decree of October 27, 1942, to all chief public prosecutors (prison authorities) (Nuremberg doc. PS-648).

Part Two. Section 1. Excursus. 3. Police “Rectification” Measures. and 4. Judicial Consequences of the Usurpation of the Prosecution of “Non-Germans” by the Police

1.
Reich Ministry of Justice memorandum of September 18, 1942 (BA R 22/4062; Nuremberg doc. PS-674).

2.
Reich Ministry of Justice memorandum, undated (spring 1943) (ibid.).

3.
Urgent memorandum of November 5, 1942, from the RSHA to all subordinate offices (Nuremberg doc. PS-1850). Any national of one of the powers at war with Germany, especially the people of the Eastern European states, was considered “hostile” and an “alien”; the prosecution of citizens of allied or neutral states should remain in the hands of the judiciary.

4.
Letter from the Reich Ministry of Justice of November 16, 1942, to the head of the Party Chancellery (BA R 43 II/1512).

5.
Memorandum dated December 13, 1942, by Thierack (BA R 22/4062; also as Nuremberg doc. PS-1750; L-316 [copy also in ZS, Versch. 250 I, 256]). Broszat,
Nationalsozialistische Polenpolitik
(1961), 140, is of a different opinion, considering that Thierack dropped the matter of his own accord.

6.
RGBl.
I 352.

7.
Memorandum of December 13, 1942, by Thierack (see note 5 above).

8.
Decree referred to in statements by Thierack at the meeting of presiding judges of the courts of appeal and chief public prosecutors on February 10–11, 1943, in Berlin (minutes of meeting, BA R 22/4200; speech by the minister, Bl. 28 ff.).

9.
Instruction quoted in the minutes (ibid., Ziff. 3, Bl. 24). The date of the instruction is not given.

10.
Report by
Ministerialdirigent
Schäfer, Reich Ministry of Justice, at the meeting of February 10–11, 1943 (minutes of meeting, ibid., Ziff. 3).

11.
More details in Broszat, in Buchheim et al.,
Anatomie des SS-Staates
(1965), 2:103 ff. From 1939 on, this measure was based on the circular decree of September 3, 1939, issued by the head of the Security Police and Security Service on “principles of internal State security during the war” (“if ordered by a high authority, brutal liquidation of such elements [‘hostile to the nation and Reich’],” BA Sammlung Schuhmacher, 271), with implementing decree of September 20, 1939 (Nuremberg doc. NO-2263).

12.
Regarding the illegality (under international law) of the
Nacht und Nebel
provisions, see Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeβ
(1969), 73;
BVerfGE
26, 132 ff., 187.

13.
Nuremberg doc. WA-503, NG-246, L-90 (also in
Dok. der Deutschen Politik und Geschichte,
5:349). All
Nacht und Nebel
operations are also reported in BA R 22/20198. See also Wagner,
Der Volksgerichtshof
(1974), 416 f., esp. 417 n. 303.

14.
Nuremberg Doc. L-90, in conjunction with the administrative regulations of December 12, 1941 by the chief of the Armed Forces High Command (Nuremberg doc. PS-669). Regarding the Occupied Eastern Territories, the SIPO had in any case largely usurped the prosecution proceedings against “aliens” (see below, section 2, excursus, 1, “Efforts by the Police to Create a Police ‘Penal Law for Alien Peoples’ ”). Under the implementing regulations referred to, the
Nacht und Nebel
provisions covered “attacks against life and limb, spying, sabotage, Communist activities, criminal offenses likely to give rise to unrest, support of enemies … unauthorized possession of weapons.” Adjudication by the military court should be carried out only when the death sentence was probable and its rapid execution possible. See also the Reich Ministry of Justice decree of October 14, 1942, and the Reich Ministry of Justice circular instruction of the same date on implementation of the
Nacht und Nebel
decree (BA R 22/20198); Reich Ministry of Justice instruction of July 3, 1943, on sentencing by the special courts of accomplices from other regions than the territories mentioned or participants in offenses against the
Nacht und Nebel
provisions (Nuremberg doc. NG-243).

15.
Hitler’s wish was communicated to the Reich ministries involved by Keitel in a letter dated December 12, 1941, to which the implementing regulations referred to were appended (Nuremberg doc. PS-669). Letter of April 1944 from Dr. Hülle of the legal department of the Armed Forces High Command to
Ministerialrat
von Ammon at the Reich Ministry of Justice (Nuremberg doc. NG-230).

16.
According to the letter of December 12, 1943, from the head of the Armed Forces High Command (Keitel), suspected persons were to disappear without trace. No information on their whereabouts was allowed to be given to relatives or other persons. (The Reich Ministry of Justice addressed a corresponding instruction in early 1942 to the attorneys general of the special courts dealing with
Nacht und Nebel
matters in Cologne, Dortmund, Kiel, and Berlin, quoted in Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeβ
, 53). Those accused of crimes under the
Nacht und Nebel
provisions were bereft of all rights of due process: no choice of defense counsel; appointment of defense counsel at the discretion of the court (see the letter of February 9, 1942, from the competent officials at the Reich Ministry of Justice [von Ammon and Mettenberg] in response to various inquiries from the special courts of Hamm, Kiel, and Cologne; letter of February 9, 1942, from the Reich Ministry of Justice to the competent special courts, Nuremberg doc. NG-253). As a rule the accused did not learn what they were charged with until the court hearing,
provided
they understood German or their defense counsel translated the indictment. No ex officio translation was provided (memorandum of October 2, 1943, by
Ministerialrat
von Ammon of the Reich Ministry of Justice, Nuremberg doc. NG-281). Foreign witnesses could be heard only with the agreement of the SS. The special courts had to give the public prosecutor a clear indication of how far they were willing to deviate from their demand (executive decree of February 6, 1942, by the Reich Ministry of Justice, mentioned in the affidavit by von Ammon, Nuremberg doc. NG-232). Enforcement of the penalty was equally inhuman: under the terms of a secret Reich Ministry of Justice decree of March 16, 1943, persons imprisoned under the
Nacht und Nebel
provisions were forbidden visits, parcels, or letters, and they were not allowed to write, themselves. It was forbidden to inform relatives of the execution or to give them the prisoner’s belongings; graves were not to be marked (quoted after BVerfGE 6, 132 ff, 187; see also the instruction of December 1942 by Reich Attorney General Lautz, Nuremberg doc. NG-708).