"Non-Germans" Under the Third Reich (107 page)

A prime tool in the realization of these goals was the practice of directives and decrees. For the SS and police leadership, that even proved to be a more effective solution, because it allowed them to avoid being bound to publicly known umbrella clauses such as those in the Decree on Penal Law for Poles, however vague they might be. Rather, they could use unpublished instructions that could be amended at any time to undermine the activities of the government administration and the judicial authorities without becoming entangled in always exhausting and time-wasting jurisdictional disputes with the Reich administration. The solution of undermining jurisdiction from within became even more attractive when the police in the Annexed Eastern Territories were forced to be considerate toward the Gauleiters and
Reichsstatthalter
(higher district presidents). These officials, who were seen as Hitler’s governors, formally headed the
Gau
judicial administration and jealously defended their autonomy, including with respect to the police, although they were otherwise friendly toward them.
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With this gradual approach along the path of least resistance, it was therefore necessary to maneuver carefully and give the impression that the police were only exercising the functions permitted to them by the law. Himmler, who was a master at employing this instrument of silent erosion of jurisdiction, also understood only too well how to use appropriate instructions not made available to the judicial administration (or announced when it was already too late) to keep the judicial authorities in a state of permanent uncertainty about which crimes were handed over by the subordinate police departments to the public prosecutors, with the result that they increasingly lost track of criminal prosecutions and the criminal situation in the Polish population.
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The area of police
summary sentences
offered an ideal way of undermining the jurisdiction of the judicial authorities by police directives. Under Reich law,
Land
regulations had always empowered the police to impose their own summary sentences for minor offenses.
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The legal guarantees provided for those affected, the ability to apply for a court judgment and to appeal against any sentence then imposed,
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were now turned upside down by Himmler, using a legal trick. In a circular by the
Reichsführer
-SS and chief of the German police on June 15, 1942,
¹¹³
the subordinate authorities of the Security Police and the regular police were instructed that in the Annexed Eastern Territories, the Decree on Penal Law for Poles of December 4, 1941 (which had no provision for appeals), would now apply also to police criminal proceedings. Under the circular, there was therefore no right of appeal against police summary sentences (in violation of sec. 413, Code of Criminal Procedure); they were final immediately on notification to the criminal. Prison camps and fines were designated as “police punishments,” although the Decree on Penal Law for Poles reserved the imposition of “prison camps” as a punishment exclusively for the courts. Finally, the provisions of the circular applied “analogously,” even in the case of “the imposition of police fines for offenses against police ordinances” (arts. 33, 76, Prussian Police Administrative Law).
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This circular was probably a replacement for the Decree on Administrative Penalty Procedures already drafted by the Ministry of Justice, which summarized the law on misdemeanors in standardized fashion and also envisaged the extension of police jurisdiction for criminal matters. The draft was successfully sabotaged by the Reich Security Main Office (RSHA), because it would have meant the definition in law of (administrative) police activities, which in the opinion of the Security Police should certainly be “avoided,” because it would have opened the floodgates to unrestricted police power over everday crimes. In contrast, a simple directive in the form of a decree was much more suitable for pushing through the intended extension of police jurisdiction for criminal matters to “all offenses” for which the police did not view the “sentences stipulated for summary sentences” as sufficient.
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The decree of June 15, 1942, succeeded in excluding Poles and Jews from all legal remedies against police orders (administrative complaints, administrative lawsuits, applications for court rulings) and eliminating the judicial authorities from the entire area of petty crimes involving “non-Germans, police punishments, and police enforcement measures.

The desired side effect of this was that misdemeanors (offenses against police ordinances) were criminalized (offenders could be sent to prison camp) by police summary sentences, and both misdemeanors and offenses against section 413 of the Code of Criminal Procedure were punished by police sentences.

This criminalization was achieved by distancing the sentencing power of the police from conventional offenses and crimes; the decree circulated on June 15, 1942, contained only a vague mention of “minor crimes.” Definition of the term
minor crime
was thus completely at the discretion of the police, and it could cover misdemeanors, offenses, and other violations. The police could therefore impose punishments for violations of police ordinances that were essentially
penalties for criminal offenses
, whereas under reigning police law, police ordinances did not involve penalties for criminal offenses, and violations could be punished only by standard police enforcement measures.
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The increased criminalization of “minor crimes” was additionally achieved by the wide scope of punishments allowed to the police under the decree circulated on June 15, 1942—three to six months’ prison camp or fines of 3,000–10,000 reichsmarks—which far exceeded the standard scope of punishments for misdemeanors—up to six weeks’ prison, fines of up to 150 reichsmarks (secs. 360 et seq., 18, 27, Code of Criminal Procedure, amended version).
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This was a complete departure from the range of conventional punishments and the conventional jurisdiction of the police over criminal matters as defined by section 413 of the Code of Criminal Procedure. In legal terms, the fact that the police had thereby assumed the function of the courts was concealed, because the decree simply stipulated that the principle of “free procedural organization” under clause 12 of the Decree on Penal Law for Poles, which also permitted deviations from the Code of Criminal Procedure, also applied to police summary sentences via section 413 of the Code of Criminal Procedure.

The extension of the principle of “free procedural organization” to police summary sentences was a clear breach of the law, because this principle was exclusively reserved for the courts and public prosecutors. Nonetheless, Himmler’s directive, which was proclaimed in the period of the “judicial crisis” triggered by Hitler’s Reichstag speech on April 26, 1942, and marked the nadir of the political and general standing of the judiciary, prevailed right from the outset; the considerable “reservations” of the senior judicial officials in the Ministry of Justice fell on deaf ears, or at least had no effect.
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In conjunction with the drafting of the decree on administrative penalty procedures, the ministry had already shown itself to be culpably passive by declaring that it had “no objections to the extension of the permissibility of police summary sentences,” although it wanted to wait for the “initiative” of the Reich Security Main Office.
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This “initiative” now occurred in the form of the decree of June 15, 1942. Since no action had been undertaken in view of the obvious illegality of the efforts of the police, there was no alternative but to accept this new usurpation of jurisdiction; all the ministry could rouse itself to do was to submit a proposal that the police summary sentences should be legalized in an amending decree to the Decree on Penal Law for Poles,
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that is, to cloak an overt breach of the law in the “proper form”; this did not happen because it would have diminished the “flexibility” of the police.

With the circular of June 15, 1942, the police came much closer to their goal, because it allowed them to assume the function of an autonomous criminal prosecution authority—together with the courts and the public prosecutors—and gave them their own jurisdiction, thus raising the police to the status of an independent organ of the administration of justice. However, the implementation of the decree caused considerable difficulties and induced the administrative leadership to issue further elucidations to keep its impact more or less within the scope of general Reich law.

A directive by the
Reichsstatthalter
of the Wartheland to the president of the Posen Administrative District on April 24, 1943, stated that the local police authorities could only prosecute criminal acts by Poles and Jews who had committed misdemeanors, as defined by the Code of Criminal Procedure (up to three weeks’ prison or fines of up to 150 reichsmarks); at the same time, the directive formally rehabilitated the judiciary by decreeing that a strict criterion must be applied when interpreting the concept of “minor crimes” as specified in the decree circulated on June 15, 1942, and that “suitable cases” should be handed over to the judicial authorities “because the authority of the state is more clearly expressed in court judgments than in police criminal proceedings.”
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However, this directive was really more lip service than a serious attempt to rescue the jurisdiction of the judicial authorities, since the administrative leadership in the Annexed Eastern Territories was at one with the interest of the SS and police in gaining complete control over the conduct of “non-German” persons. Further decrees tightened this control. In the Warthegau, for instance, the police were instructed to act with “particular severity” in their summary sentences on Poles involving violations of “ethnic principles,” which included such “offenses” as the use of railway compartments designed for Germans only or failing to mark an apartment as Jewish.
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It should be obvious that in the eyes of the police, the range of punishments contained in the circular of June 15, 1942, was by no means sufficient in the long term for the increased severity with which “non-Germans” were treated. Once it had been usurped by the police, the principle of special law demanded even further extension. What the police really wanted was to link police summary sentence proceedings to general Gestapo proceedings, which provided for only two sanctions, irrespective of whether reasons for arrest existed or not: either sending those in disfavor to a concentration camp or liquidating them for “security” or “criminal investigation” reasons. Whenever possible, everyday crimes were now to be subject to this procedure; to this end, it was necessary to blur the borders between criminal offenses and political offenses, in other words to politicize criminal offenses, in order to allow the inclusion of the political police (Gestapo) and the criminal investigation police, with their unrestricted powers of sanction, to take part in police summary sentence proceedings. This inclusion was implemented by a circular decree by the
Reichsführer
-SS and chief of the German police on September 20, 1943,
¹²³
which represented another classic example of the tactics of the police in undermining existing jurisdiction. This decree used the preferred method of changing the terms of existing regulations while preserving the formal “legal position,” in other words treating provisions primarily as organizational and jurisdictional issues and shifting or redefining responsibilities to achieve the desired change in substance.

For “reasons of expediency,” the circular decree correspondingly empowered not only the organs of the regular police authorities but also the Gestapo and criminal investigation offices and headquarters, that is, the Security Police, to impose police summary sentences on Poles (Jews are no longer mentioned for obvious reasons—ghettoization, deportation),
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and assigned them the same punitive powers that the regular police had received on the basis of the decree of June 15, 1942. However, this involved much more than the
coexistence
of the regular and Security Police: the latter clearly gained the upper hand through the provision of clause 3 of the decree, which set out that when an offense “was of prime importance to the criminal investigation police,” the case was to be handed over to the criminal investigation police (part of the Security Police); “as before,” “cases with a political impact” were to be transferred to the Gestapo. When doubt existed, the relevant criminal investigation or Gestapo offices, in other words
not
the organs of the regular police (uniformed police, gendarmerie), were to make a
binding decision
about whether such criminal investigation or Security Police “interests” existed.

The potential jurisdiction of the Security Police in the treatment of “non-Germans” was therefore now actually without limit, since there were no misdemeanors by a “non-German” that were not inherently political or criminal crimes in areas where the “ethnic struggle” was being waged.

The monopolization of criminal prosecutions under the control of the Security Police was accompanied by the removal of powers from the local police authorities (regular police), whom the police headquarters mistrusted in principle in any case, because there was always a “risk” that they would not act with sufficient severity. The decree of September 20, 1943, therefore completely removed from the local police authorities the power to impose prison camp sentences on Poles and restricted their power to impose fines for offenses for which fines of 5 to 200 marks (or up to three weeks of prison camp) were sufficient.
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The district police authority (prefect) was responsible for all punishments exceeding this scope.