"Non-Germans" Under the Third Reich (245 page)

17.
Conrad,
Deutsche Rechtsgeschichte
(1962), 26.

18.
Circular instruction of October 28, 1942 (Nuremberg doc. NG-737), according to which the “other measures” taken by the Gestapo were either “detention” “for the duration of the war” (i.e., in a concentration camp) or “release to the occupied territories”; there was of course no guarantee that such releases actually took place. See also the affidavit by von Ammon (Nuremberg doc. NG-232), according to whom this instruction further amended the executive decree of December 6, 1942 (ibid.), in that the court could at its discretion deviate from the public prosecutor’s demand. See also the letter of February 20, 1943, from the senior public prosecutor of the Essen special court to the Reich Ministry of Justice (Nuremberg doc. NG-267) and an earlier Reich Ministry of Justice instruction on the handing over of
Nacht und Nebel
prisoners to the Gestapo (Nuremberg doc. NG-205).

19.
Reich Ministry of Justice instruction of early 1942 (Nuremberg doc. NG-232, quoted in Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeβ
, 53). In the overviews by the Reich Ministry of Justice dated September 1, 1942 (Nuremberg doc. NG-228), and November 1, 1943 (Nuremberg doc. NG-282), however, only the special courts of Kiel, Essen, and Cologne are mentioned.

20.
Reich Ministry of Justice overviews of September 1, 1942 (1,456 cases pending before the special courts of Kiel, Essen, Cologne); November 1, 1943 (see the preceding note) (pending before these special courts and the People’s Court: 1,786 cases involving 5,240 accused, 1,230 of which led to a conviction); and April 30, 1944 (Nuremberg doc. NG-232): proceedings against 6,639 accused were pending, of whom 1,793 were convicted; the number of
Nacht und Nebel
cases is, however, higher, since the activities of the special courts continued until August 1944 (indictment in the Judiciary Trials, quoted in Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeβ
, 72); in addition, the figures cover only proceedings that were passed on by the military courts, i.e., not those they dealt with themselves. The People’s Court was in session virtually without interruption, especially in the years 1933 and 1934. As of August 1, 1944, it used more than 172 honorary associate judges, for the most part high-ranking military, SS and SA officers, and Party functionaries (Nuremberg doc. NG-184).

21.
Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeβ
, 191, name 304 demonstrable death sentences in
Nacht und Nebel
cases at the People’s Court by 1944 alone (see also the indictment document at the Nuremberg Judiciary Trials, quoted in ibid., 72). More recently, see Wagner,
Der Volksgerichtshof
, 416 f., on the judgment practice of the courts.

22.
The grip of the Gestapo was clearly established since the middle of 1943, however. Cf. the RSHA decree of May 31, 1943, under which “old”
Nacht und Nebel
prisoners were defined as those whom the military courts had “handed over to the transfer agencies to be brought into the Reich,” whereas “new”
Nacht und Nebel
prisoners were arrested on the spot by the SIPO and taken directly to the Reich concentration camps (quoted from the decree by the Central Economic and Administrative Office of the SS to the commanders of various concentration camps, ZS, G.J. no. 158). The decree of May 31, 1943, coincides with the Reich Ministry of Justice secret decree of March 16, 1943, with respect to the ban on receiving and writing mail for
Nacht und Nebel
prisoners (see note 16).

23.
Either he was condemned by the special court or, after 1944, the proceedings were officially passed over to the Gestapo, which could mean nothing other than liquidation or transportation to a concentration camp. If he was acquitted or had served his term of imprisonment, he was to be handed over to the Gestapo on the instructions of the Reich Ministry of Justice (see note 18) and incur the same sanctions. The best that a prisoner under the
Nacht und Nebel
provisions could hope for, and as was frequently practiced by the courts, was to serve a long term of imprisonment in a prison run by the judiciary.

24.
Decree of March 11, 1942, quoted in the situation report of August 11, 1942, by the chief public prosecutor of Königsberg (BA R 22/3375).

25.
Cf. the RFSS decree of February 10, 1944, and the decrees of December 10, 1940, and July 5, 1941, cited there, quoted by Weinkauff and Wagner,
Die deutsche Justiz
(1968), 306.

26.
After about 1941, a “refined” procedure was applied for Poles, whereby execution was made to depend on racial investigation of the accused. The “racial judgment,” which was pronounced purely on the basis of external appearances, was, according to the testimony of former members of the SIPO, “enormously important” and “decisive” for the fate of the “culprit,” for whom a negative judgment meant the death penalty. If the racial judgment was positive, the “culprit” was sent to a concentration camp. The German woman involved was also sent to a concentration camp (affidavit of July 14, 1947, by Breder, Nuremberg doc. NO-5134; and affidavit of August 8, 1947, by Paucke, Nuremberg Doc. NO-5132). The police leadership even went so far as to issue decrees forbidding the so-called Eastern workers, i.e., the labor force from the Occupied Soviet Territories,
all
sexual intercourse. In the event of sexual intercourse with Germans, Soviet Russians were not subjected to a racial investigation, as was the case with Poles, but male Russians were immediately executed, and Russian women were put into concentration camp (unpublished circular decree of February 20, 1942 by the RFSSuChddtPol, letter A, Allgemeine Erlaßsammlung des RSHA, 2 A III f.; repeated in the circular decree of February 10, 1944, II, Ziff. 6; the latter decree prohibited only the racial judgment, with “special treatment” as consequence). In the event of sexual intercourse between Soviet Russians and other foreign workers, the threat of concentration camp hung over both parties (decree of February 20, 1942).

27.
Allgemeine Erlaßsammlung des RSHA, 2 A III (BA R 19/3).

28.
Directives dated September 3, 1940, and July 5, 1941, from the RFSSuChddtPol, quoted in
Doc. Occ.
10:108 ff. (also in Weinkauff and Wagner,
Die deutsche Justiz,
306).

29.
Urgent memorandum of August 5, 1940, from the head of the Security Police and Security Service to Stapo headquarters (B, no. 3642/40 g—IV A 1 c, BA Koblenz).

30.
See Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeß,
69, with references;
Führerinformationen
no. 66 of July 3, 1942 (BA R 22/4089).

31.
See the situation report of November 4, 1941, by the presiding judge of the Brunswick Court of Appeal (BA R 22/3357); situation reports of July 31, 1940; May 31, December 1, 1941, by the chief public prosecutor of Celle (hanging of Polish agricultural workers on account of “indecent acts”), in
VjhZ
(1958): 452; situation report of May 23, 1941, by the senior public prosecutor of Mosbach, annexed to the situation report of June 3, 1941, by the chief public prosecutor of Karlsruhe (BA R 22/3370, fol. 44 ff.); reports by the higher SS and police leader, Stuttgart, to the Reich governor of Baden (ZS, Versch. 9/2341, excerpts); see also the circular dated May 20, 1942, from the RSHA to the state police headquarters of the Annexed Eastern Territories, according to which sexual intercourse between Germans and “aliens” would be dealt with not by the judiciary but by the Gestapo (Nuremberg doc. NO-3296). Regarding the actual execution, which was generally carried out by compatriots of the victim or fellow prisoners, extremely detailed instructions were issued for selection of the site, the presence of spectators, police measures, the photographs to be taken, etc. The earliest RFSSuChddtPol decree (no longer extant) dates back to December 10, 1940, followed by the decrees of July 5, 1941 (see note 28), May 4, 1943 (Allgemeine Erlaßsammlung des RSHA, II F VII a), and February 10, 1944 (quoted in Weinkauff and Wagner,
Die deutsche Justiz,
306).

32.
See Weinkauff and Wagner,
Die deutsche Justiz,
298, for more details.

33.
See ibid. for further details.

34.
Allgemeine Erlaßsammlung des RSHA, 2 A III f. (BA R 19/3).

35.
See the statements by
Ministerialdirektor
Schäfer of the Reich Ministry of Justice at the meeting of senior presiding judges and chief public prosecutors in Berlin, February 10 – 11, 1943 (minutes of meeting, BA R 22/4200).

36.
RGBl.
I 759.

37.
Allgemeine Erlaßsammlung des RSHA, 2 A III f. (BA R 19/3).

38.
Letter 8 of the circular decree of February 20, 1942 (see note 26 above).

39.
Note dated December 13, 1942, from the Reich minister of justice on a discussion with Himmler (BA R 22/4062).

40.
RSHA circular decree dated June 30, 1943 (Allgemeine Erlaßsammlung des RSHA, 2 A III, 131 ff., BA R 19/3).

41.
ZS, Versch. 26, 86, 127 f., 131.

42.
A secret RSHA circular decree dated August 10, 1943 (Allgemeine Erlaßsammlung, BA R 19/3, 2 A III f., 148 f.), contains the following definition of this group of people: The term
Polish civilian workers
covered all Poles wearing a
P
employed in the Altreich (virtually no Polish civilian workers were engaged in the Annexed Eastern Territories). Regarding Soviet Russian civilian workers, see the circular decree of June 30, 1943 (see note 40), according to which criminal prosecution throughout the territory of the Reich (including the Annexed Eastern Territories) was incumbent on the police. Penal jurisdiction by the police over Poles living in the Annexed Eastern Territories (“persons of Polish nationality with protected status,” unless they were registered in the German Ethnic Classification List) was covered by the circular decree of October 23, 1942 (not included in the general collection of RSHA circular decrees; quoted only in the decrees of June 30 and October 30, 1943, Allgemeine Erlaßsammlung des RSHA, 2 A III, 131 ff., BA R 19/3). Evidence that such questions of delimitation regarding the “nationality” of the people involved caused no few problems for the Gestapo bureaus is provided by the fact that just four weeks later, on September 10, 1943, a further circular decree was issued by the RFSSuChddtPol (Allgemeine Erlaßsammlung, 2 A III f., 150 ff., ibid.) with detailed administrative regulations (159 ff.) canceling the earlier decrees of and March 8, 20, April 8, July 10, and September 3, 1940; December 10, 1941; and July 26, 1942, and repeating once again the fundamental authority of the Gestapo in matters of criminal offenses and violations of work contracts by Polish civilian workers in the territory of the Altreich.