"Non-Germans" Under the Third Reich (119 page)

The justice authorities had, however, already earlier made a number of attempts to maintain their punitive and executory prerogatives with respect to concentration camp inmates. According to the current doctrine, preventive detention was clearly distinguished from criminal proceedings and execution, and committal to a concentration camp did not affect the course of criminal proceedings. When, as often happened in such cases, the judiciary hesitated to go through with the penal procedure, they were reminded—in the last instance by the directive of February 12, 1943—that preventive detention was not a ground for a temporary stay of proceedings, since the “absence” of the accused under the terms of section 205 of the Code of Criminal Procedure was not applicable, nor was an offense under section 154a, paragraph 2, of this Code, since “accommodation in a concentration camp” was “neither a punishment nor a preventive detention and correction measure.” In the case of minor offenses, at most a stay of proceedings was possible under section 154a, paragraph 2, of the Code of Criminal Procedure, but apart from this the prosecution of criminal offenses was to be conducted against all suspects in a concentration camp. The Security Police were to request that the prisoner be handed over; and in the event of difficulties, a report was to be sent to the Central Department of Justice.
⁶¹
A directive of August 13, 1941, had earlier established that penalties recognized by the Polish or German courts were in principle also to be carried out when the prisoner had been committed to a concentration camp and that the sentence was to be served in a General Government prison,
⁶²
not in concentration camp. In such cases, too, the Security Police was to request that the prisoner be handed over.
⁶³
On the basis of a later directive dated February 12, 1943, however, prisoners were only to be brought out of a concentration camp to serve a prison sentence when a sentence of six months or more was to be expected. If a shorter sentence was anticipated, proceedings were to be suspended and the prisoner was to remain in protective detention.
⁶⁴

The police did not, of course, take kindly to measures designed to restore the judiciary’s authority. The higher SS and police leader (HSSPF), SS-
Obergruppenführer
Krüger, had always held the imprisonment of Jews and Poles to be completely misguided, considering forced labor in a concentration camp the only suitable activity for “non-Germans,” and the SS and police authorities frequently refused to hand over prisoners to the judiciary. The judiciary, having no support in political circles, attempted to safeguard its interests by dint of compromise. A circular from the Central Department of Justice dated March 15, 1941, reported an “agreement” between the Central Department and the higher SS and police leader (HSSPF) to the effect that prisoners were to be released to the justice authorities only at the request of the Security Police after they had served their sentence or if an arrest warrant was refused or canceled. The justice authorities had strict instructions to return them to the Security Police only when there was an individual request to do so.
⁶⁵
We may thus conclude that until this time such transfer to the police was effected automatically on release from imprisonment.

Any other “agreements” existing at the local level were superseded by the directive of March 15, 1941. Thus, in contrast to the situation in the Reich, the judicial authorities were explicitly bound to hand over discharged prisoners who had served a sentence or were on remand, nobody of interest to the police was released.
⁶⁶
They nevertheless tried, with some success, to avoid returning people who had been in preventive detention before the institution of criminal proceedings: an order dated May 22, 1943, from the Central Department of Justice instructed that requests by the Security Police to return prisoners after release from custody should not be “indulged.”
⁶⁷
For their part, the Security Police complied less and less with requests from the judiciary to release detainees for the purpose of serving a sentence. The judicial administration reported that the police refused to release prisoners detained in concentration camp because their political record was such that they would constitute a danger to the people and the state.
⁶⁸
The commanders of the Security Police and the SD in the various districts later even spread the rumor that the release of prisoners in preventive custody had been agreed upon only for the purpose of executing the death penalty (intending to dissuade the judiciary from making further requests for their release), a contention that was sharply refuted by the Central Department of Justice. Such actions by the police nevertheless had some success in shaking the confidence of the judiciary, who were instructed to continue to comply with the directives of August 13, 1941,
⁶⁹
and February 12, 1943,
⁷⁰
requiring that all prisoners in preventive custody against whom proceedings were pending or who had received a penalty exceeding six months were to be claimed by the Security Police.
⁷¹

Once a “non-German” was in the hands of the police, there was thus little chance that he would ever see freedom again. If he was already in custody in a police prison or a concentration camp, he was often not released to the judiciary for his case to be pursued. If this did happen, however, he was rearrested and handed over to the police immediately after his release from pretrial confinement or imprisonment, since, as we have seen, the police were kept informed of the outcome of all criminal proceedings and the discharge of prisoners. This interplay between the judiciary and the police undermined the already weak position of the judiciary in the General Government still further. Yet, in spite of its lack of authority compared with the rest of the Reich and its subservience to police demands, the very existence of the judiciary remained a thorn in the side of the SS and the police, thwarting as it did Himmler’s idea of sole police jurisdiction over all “non-Germans.” Himmler voiced his complaints against the judiciary of the General Government, like that of the Annexed Eastern Territories, claiming that “the Poles are much too interested in the idea of expiation, rather than in defense against real threats.”
⁷²
In his view, the police were entitled to sole criminal jurisdiction over “non-Germans,” which had already been largely granted by the decrees of October 31, 1939, and October 2, 1943, without “interference” by the judiciary. It was in the General Government that the police came closest to achieving this ambition.

C. Civil Law

I. Discriminatory Elements in Substantive Law

In a far greater measure than in criminal law, the civil law system of the General Government was structured along the lines of strict separation of Germans and “non-Germans” (
Personalprinzip
): German jurisdiction and German law for German citizens and German nationals, Polish law and Polish jurisdiction for everyone else.
¹
German law was thus a discriminatory law privileging Germans, based on the notion of nationality.
²
It was not enacted afresh, but with the Decree on German Jurisdiction in the General Government of February 19, 1940,
³
Reich civil law exclusively held sway over the territory.

For civil litigations, cases of execution of civil sentences, bankruptcy and settlement matters, noncontentious proceedings, and matters concerning the register of commerce, Reich law alone was applicable when German citizens and German nationals were involved among themselves. But in order to privilege Germans, the same rule was also applied in cases in which only one of the parties was German, irrespective of whether he was the plaintiff or the accused.
⁴
In execution proceedings and in bankruptcy and settlement matters, Reich law held when the proceedings were directed against German citizens and German nationals. This “homeland law” also applied in matters of civil status
⁵
and in personal, family, and inheritance questions, and it applied to the form of the marriage when one of the partners was a German citizen or a German national.
⁶
In company law, German jurisdiction was applicable for companies established under that regime, for other corporate bodies in private and public law, and for management of the register of commerce. Associations established under Polish law were to be dealt with under German law only if the personally liable associate of a trading association was a German citizen or a German national, or where at least half of the board was composed of German nationals.
⁷

This enumerative treatment precluded analogous application of other Reich laws to both Germans and “non-Germans.” Important fields of Reich civil law were thus not applicable in the General Government, for example tenancy, labor, insurance, and so forth; a considerable number of branches were dealt with under the former Polish law, as the practice of keeping land register and mortgage records within Polish jurisdiction illustrates.
⁸

Regarding all civil matters concerning Poles and Jews among themselves, the principle of enumeration ensured that Polish law continued to be valid except when it ran counter to the “objectives of the German administration” or in situations covered by special regulations issued by the governor general.
⁹
Little use appears to have been made of this blanket proviso—if only on account of ignorance of the Polish law—so that the territorial civil law remained almost completely intact.
¹⁰

II. Discriminatory Elements in Jurisdiction and in Procedural Law

In matters of jurisdiction and procedure, the civil courts also followed the prevalent principle of separating Germans and “non-Germans.” The German courts, as we have already seen, were available solely for the protection of German citizens and German nationals, covering civil litigations of natural persons and corporate bodies with respect to execution of civil sentences, bankruptcy and settlement matters, and noncontentious proceedings, so long as German citizens and German nationals were involved. As in criminal law, the courts of first instance were the German courts, of second instance the German superior courts, which for their part also acted as review bodies for the Polish courts of second instance whenever German citizens or German nationals were attacked by way of a special right of rescission,
¹¹
since no German could be obliged to submit to the decision of a non-German court. Civil procedure was based on the Prussian regulations by virtue of sections 22 and 25 of the Decree on German Jurisdiction in the General Government of February 19, 1940, but only when not determined otherwise. Thus, in litigations involving Germans, the Code of Civil Procedure was to be applied together with the special regulations arising out of sections 26–28 of the decree of February 19, 1940. These special regulations included the limitation of the right to appeal to a single appeal court (the German superior courts), abolition of compulsory representation by counsel, and an equivalence of the General Government with the Reich in matters of execution, in that judgments made by Reich courts could automatically be executed in the General Government. The political hold of German jurisdiction over the Polish civil courts was expressed in the regulation establishing that for reasons of the “greater public good,” the right of review of the German superior courts also extended to unappealable rulings of the Polish civil court (at the request of the head of the justice department in the office of the competent district governor),
¹²
an arrangement that was doubtless never of great significance.

III. Summary

A comparison of the discriminatory laws and practices in the General Government and the Annexed Eastern Territories shows that the formal legality existing in the General Government provided, on the whole, a certain degree of legal security, whereas in the Annexed Eastern Territories, all formal and substantive principles and definitions were in a constant process of disruption. This is true first for civil law. Until 1941 the judiciary of the Annexed Eastern Territories was only able to apply Reich civil law analogously, and even following implementation of the Decree on the Implementation of Civil Law in the Annexed Eastern Territories of September 15, 1941, the jurisdiction was still subject to the political proviso of assimilation and conformity with “state or ethnic concerns” (secs. 4, 5 of the decree). In the General Government, the most important elements of Reich civil law had been introduced enumeratively from the start on the basis of the ethnic affiliation of the individual, with Polish law remaining intact providing German interests were not at stake (sec. 19, Decree on German Jurisdiction in the General Government of February 19, 1940). The courts of the General Government were thus in a far more favorable position than those of the Annexed Eastern Territories, which were obliged to check every regulation and every procedure involving “non-Germans” for their compatibility with the principle of assimilation, that is, with principles of racial hatred and the inferiority of other peoples (the ethnic struggle). In the realm of civil law, these umbrella clauses rendered the application of Reich law to “non-Germans” subject to political considerations almost as much as did the boundless umbrella clauses covering Poles and Jews in criminal law. The difference between these two laws was merely that with the Decree on the Implementation of Civil Law in the Annexed Eastern Territories, the Reich Ministry of Justice once again managed to retain legal relations between Germans and “non-Germans,” at least in formal terms, whereas in the Decree on Penal Law for Poles, these bonds were definitively severed.