"Non-Germans" Under the Third Reich (93 page)

The terms of the Decree on the Utilization of Jewish Property of December 3, 1938,
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were of course extensively interpreted to the greatest disadvantage of Jews. Under the terms of the decree, a compulsory sale or liquidation order could be served within a given time limit on Jewish owners of businesses and Jews with agricultural or forestry undertakings or similar landed property or other assets (secs. 1, 6, 8, 16).
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The acquisition of real estate was forbidden to Jews; dispositions of real estate were subject to official approval, a limitation that was also interpreted very broadly.
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In the view of the Prussian Supreme Court in Berlin, Jews were not permitted to acquire such rights even as legal heirs, notwithstanding the fact that this prohibition applied only to legal transactions. Jews were further not permitted to acquire rights or partial rights under the law of obligations to real estate or parts thereof or assimilated rights, whether from living persons, as testamentary heirs, or as acquirers of portions of an inheritance, because the decree of December 3, 1938, applied not only to limitations regarding the disposition of real estate but also to executory agreements.
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Conversely, in the event of cancellation of the execution, Jews were in principle not debarred from the purchase of an execution lien registered in favor of the creditor (secs. 866, 868, Code of Civil Procedure),
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whereas the registration of a provisional judicial mortgage on a Jews’s land as a guarantee of the execution (secs. 916, 932, Code of Civil Procedure) was basically not forbidden,
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since this was not a purchase or a disposition qualifying as a legal transaction but an acquisition by force of law or execution.

III. Discriminatory Principles in Procedural Law

1. Discrimination against Jewish Judges and Lawyers

The principle of discriminatory legislation against Jews was broadly applied in procedural law, which mostly contained strict regulations that were not open to interpretation, because the “spirit of National Socialist development” also applied to civil proceedings.
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This greatly simplified the rejection of Jewish judges, for example. Although such rejection required a reason “sufficient to justify distrust in a judge’s impartiality” (sec. 42, Code of Civil Procedure), that is, objective grounds were presupposed, the judge’s race now served as such a reason. Thus, as early as November 1933, the Berlin District Court accepted the challenge of a Jewish judge by a defendant who earlier had insulted “the Jews,” since it was “natural that the content and form of the attacks should hurt the feelings of a Jewish judge.”
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Rulings such as this were readily taken as a direct encouragement to petition for such a challenge. For example, in a ruling of February 1934, the court found that there were “objective reasons” for concern over the partiality of a Jewish judge in the matter of testimony by a Jewish witness, since the district court could not imagine that a Jewish colleague was “capable of evaluating this testimony.”
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Similarly, the Hanover District Court reversed a 1933 ruling in which an arbitration tribunal had found the refusal of a Jewish associate judge to be without foundation.
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Following the passage of the Nuremberg Laws, the question arose whether judgments pronounced by Jewish judges or in which they had been involved were legally effective or whether they could be revoked through proceedings for annulment, on the grounds that since November 15, 1935, Jewish judges had no longer been permitted to serve (secs. 1, 3, 4 of the First Decree to the Reich Citizenship Law). But in this case considerations of legal security took precedence, and the Reich Supreme Court denied the possibility of annulling such decisions, invoking section 5, paragraph 4, of the Second Decree to the Reich Citizenship Law of December 21, 1935.
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This totally unfounded legal practice greatly curtailed the rights and thus the livelihood of Jewish lawyers, although their actual disbarment occurred only with the Fifth Decree to the Reich Citizenship Law of September 27, 1938.
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Jewish lawyers representing Aryan parties were no longer permitted to be assigned to legal aid (Frankfurt Court of Appeal),
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because according to “the meaning and the spirit of the legal concept that has predominated since the national revolution, based on the principles of the nation and race, German parties can no longer be represented by counsel foreign to the race” (Hamm Court of Appeal and others).
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This position held even when a relationship of trust existed between the party and the Jewish lawyer; for an Aryan party who chose to have a non-Aryan lawyer “violated the basic tenets of the German community.” The German judge should thus not “yield to such requests” (Naumburg Court of Appeal).
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It was possible for an Aryan lawyer to be assigned to a Jewish party, on account of the fees earned—but this was exceptional (Dresden District Court).
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Jewish lawyers who had been axed were refused audience in court as counsel in pursuance of section 157 of the Code of Civil Procedure,
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even if no costs were involved (Charlottenburg Court of First Instance),
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and despite the fact that section 157 spoke only of “representation involving payment of a fee” and that section 90 of the Code of Civil Procedure should have applied in such cases.
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The (double) legal fees incurred through the ban on Jewish counsel were not recoverable, contrary to the law (Prussian Supreme Court in Berlin).
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There was some disagreement about the appearance of Jewish counsel before the labor court. The
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Labor Court of Berlin banned Jewish union representatives from the labor courts as early as mid-1933, assimilating them to Jewish lawyers.
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It later reversed this ruling, however, following an appeal by the lawyer in question, declaring inadmissible the refusal to admit such people as counsel in labor proceedings (sec. 11 of the Labor Court Law) on grounds of race. This justification makes it clear how easy it was to make use of technicalities to avoid discrimination and that boundless interpretation of the regulations “in the National Socialist spirit” was by no means mandatory. The court found that section 11 of the Labor Court Law did not provide for application of the “Aryan principle.” As a result it was not applicable here, since the court could not act in place of the legislator.
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Other labor courts continued to declare the appearance of such persons inadmissible, however.
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2. Discrimination against Jewish Parties (Legal Aid) and Witnesses: The Plan to Renounce from Legal Proceedings

A further opportunity to apply discriminatory legislation was provided by the provisions on the granting of legal aid (secs. 128 ff., Code of Criminal Procedure), which in the main appear to have been correctly applied into the early years of the war. Reports by the Security Service in 1941, as usual quoting opinions allegedly expressed by the people, complained that “politically minded comrades … simply fail to understand how Jews are still able to plead under legal aid.”
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The local justice authorities now felt encouraged to practice unlawful discrimination, especially since the Reich Ministry of Justice was beginning to express itself in increasingly harsh terms at that time.

At first the Reich Supreme Court hinted at possibilities of circumventing the authorization of legal aid, albeit in special cases.
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Legal aid to Jews was subsequently refused in various districts, as is documented at least for that of the Hamburg Court of Appeal.
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As the president of the Hamburg Court of First Instance explained to the judges of his district, legal aid should not be refused “on principle,” in default of a legal basis, but authorization should be granted only in exceptional cases and only on submission to the district court president.
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The refusal to grant legal aid was thus in complete accord with the Nazi philosophy of discriminatory legislation, yet the absence of “a relevant legal regulation or directive” still rankled and was felt to be “awkward.”
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But such support was not long in coming. In August 1942 the right of Jews to legal aid was reduced throughout the Reich by administrative guidelines issued by the ministry.
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Procedural discrimination against Jews in court was practiced in other ways, too, or at the very least the courts were prodded in this direction by the ministry. In a lecture before the judges of the city in 1942, the presiding judge of the Hamburg Court of Appeal explained the ministry’s policy on the legal treatment of Jews. Jews were still permitted to testify as witnesses, but their testimony should be evaluated “with caution.”
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But these were only the first steps in the direction of complete abolition of all the rules of procedure. At the meeting of the court of appeal presiding judges and chief public prosecutors in Berlin on February 10–11, 1943, the representatives of the ministry put forward the planned judicial policy, namely to achieve the severance of the courts from the procedural law regulations by a statutory instrument already in force in the Annexed Eastern Territories, with respect to all court procedures, including civil law.
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That this did not come about, in spite of the ministry’s efforts, was due only to the facts that the deportation and extermination operations undertaken since 1941 had depleted Germany of Jews and that the institution of civil action by Poles was in any case hardly conceivable and in practice impossible given their dependence on the police statues.

3. Discrimination against Jewish Participants in the Estate Execution/ Administrative Process

The estate administration law was also applied to the disadvantage of non-Aryans. Like Jewish executors, Jewish official receivers could also be dismissed, even if they were war veterans, because—as the Berlin District Court put it as early as May 1933, during the wave of anti-Semitic violence of the National Socialist revolution—the “continuing agitated mood of the people” and “difficulties in dealing with landlords, creditors, etc.” constituted an important reason for dismissal in pursuance of section 153 of the Compulsory Auction Law.
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Furthermore, Jews did not benefit from the Decree on Exemption form Judicial Execution of May 26, 1933,
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since its expanded protection of debtors guaranteed by the National Socialist state had not been created for Jews.
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The Misuse of Execution Law of December 13, 1934,
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excluded Jewish tenants from protection against eviction in the event of termination actions, including eviction from apartment houses in the large cities, on the grounds that the concept of the “community of occupants” could make the removal of a non-Aryan necessary (Schöneberg Court of First Instance);
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foreigners permanently resident in Germany, however, enjoyed protection under this law and were thus treated more fairly than German citizens of Jewish descent.
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In the view of the Schöneberg Court of First Instance, Jews also could not defend themselves against seizure of radio sets by using the otherwise valid claim that they were their personal property and therefore exempt from confiscation (sec. 811, no. 1, Code of Civil Procedure), since possession of such objects by Jews was not considered necessary.
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The executing court was not authorized to order the utilization of a seized object by transferring it to a Jewish party (sec. 825, Code of Civil Procedure), since business with Jews was “dishonorable” and “the nation could not understand” how a court could make such a transfer of ownership to a Jew.
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To summarize, we may note that the discriminatory practices had little effect on civil law in formal terms and that (with the exception of matrimonial law) it was not subject to the “general reassessment,” that is, “adaptation of the civil law regulations to political necessities,” demanded by the proponents of radical anti-Jewish measures.
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Such “general reassessment” was, however, basically unnecessary, since the various methods used to interpret the law had the same effect with less trouble and in a less spectacular manner: segregating Jews and other non-Germans from Germans in the basic spheres of human relations (family law, tenancy law, etc.), destroying or preventing family and hereditary bonds, and, not least, giving the principles of state-run robbery the necessary veneer of legality. Whether the law was interpreted according to its meaning and purpose or applied in the light of the “ideologies of the day,” or a racist proviso was incorporated into every regulation to the detriment of Jews, the exclusion of an entire section of the population from their basic rights was accomplished by enforcing laws when they worked to the disadvantage of Jews and flouting them when they worked to their advantage. Thus, civil law serves as the prime example of the main technique used in Nazi law, whereby a whole legal fabric could remain largely intact, but the exclusion of Jews from its protection was readily achieved under the cover of an interpretation consonant with the ideology of the period.