"Non-Germans" Under the Third Reich (161 page)

For an explanation of the new criminal law in jurisprudence, cf. Württ. State Administrative Court, June 17, 1936,
DVerw
(1940): 221; Prussian Administrative Supreme Court, Hamburg, November 19, 1937,
RVerwBl.
(1938): 147 (
JW
[1937]: 3335 f.); Prussian Administrative Supreme Court in OVGE, 91, 140. From the literature after 1945, see Buchheim,
SS und Polizei im NS-Staat
(1964); Plum, “Staatspolizei und Innere Verwaltung” (1965); Rasch, “Die Organisation der Polizei” (1960); Weinkauff and Wagner,
Die deutsche Justiz
(1968), 63; Echterhölter,
Das öffentliche Recht im nationalsozialismus
(1970), 69.

2.
For further details, see Maunz,
Gestalt und Recht der Polizei
, 8 ff., 28. (The prohibition of secret powers does not refer to the “sweeping institutionalized powers” of the police, which—both theoretically and practically—had become clear and “unequivocal” in substance, despite the absence of any formally worded definition. But not every organ of the police could consider itself as being empowered by the Führer; this was the exclusive right of the head of the police—the
Reichsführer
-SS and chief of the German police—and his general staff; his actions alone were
normfrei
(not bound by the code of law) but not
justizfrei
(outside the law).

3.
This was the ineluctable consequence of the train of thought outlined in the preceding passage, for a police force whose actions are outside the code of law was in a position to give subordinate offices powers not bound by the code of law. See also Maunz,
Gestalt und Recht der Polizei
, 53: “The restructuring was procedural in nature rather than affecting the substance of the law. What is currently necessary and appropriate outweighed the desire for a legal system that determines police jurisdiction. In a rapidly changing political situation, it seemed more important to adopt an approach that is systematically oriented toward local circumstances and requirements than scrupulously hanging onto carefully worded legal principles. In this endeavor, the principles of the police code were initially of secondary importance.”

4.
Ibid. (there is a need to “secure a widely extended state by means of a powerful inner police corps [
Schutzkorps
] operating under central direction. Concerns about protection of [individual] rights play no part whatsoever in this”). Furthermore,

disapproval and mistrust were also directed toward the courts that had spared no pains over the decades in carefully nurturing the principles of police jurisdiction. Jurisdiction in police matters was seen from the point of view of interference in political decisions and weakening of police authority, as well as a cause of delay in obtaining results…. The number of writs contesting police orders diminished after 1933 anyway; apparently, in many cases plaintiffs did not expect anything to come of their pleas…. In this way the so-called prevailing legal practice in published verdicts, which had made a crucial contribution to the development of legislation concerning the police, waned or lost its earlier prominent position in police practice. (53)

5.
Cf. Law on the Establishment of a Secret State Police Bureau, April 26, 1933, and the Law on the Secret State Police of November 30, 1933 (PrGS 1933, 122), with implementing order of March 8, 1934 (
RGBl.
I 143), replaced by the Prussian Law on the Secret State Police of February 10, 1936, with implementing order of the same date (PrGS 21 ff.); circular decrees of the Reich Ministry of the Interior of September 20, 1936 (commissioning the State Secret Police Bureau in Berlin to act as political police commanders of the
Länder
), of November 11, 1938 (commitment of the authorities of the general and internal Civil Service to judicial and administrative cooperation with the SD) (
MinbliV
[1936]: 1343; [1938]: 1906), and of October 15, 1941 (
MinbliV
[1941]: 1828), as well as circular decrees of the
Reichsführer
-SS and chief of the German police of August 28, 1936; April 22, 1937; February 15, 1938; November 7–8, 1939; October 28, 1942; and October 9, 1943 (
MinbliV
[1936]: 1344; [1937]: 661; [1938]: 825; [1939]: 22, 91 ff.; [1942]: 2087 ff.; [1943]: 1595); service instruction of chief of the Security Police and the SD of May 15, 1940 (
MinbliV
[1940]: 1938; also BA R 58/2043). Decree issued by
Reichsführer
-SS and chief of the German police of September 27, 1939 (IMT Nuremberg 38:102; also in BVerfGE 6, 132 ff., 207) (the introduction of the new rank of higher SS and police leader [HSSPF]). See also H. Buchheim,
Die Höheren SS- und Polizeiführer
(1953) (4), 362 ff. For a detailed account of police organization, see Maunz,
Gestalt un Recht der Polizei
, 38 ff.; Maunz, “Die Polizei im Reichsgefüge” (1941), 95; Haenich, “Der organisierte Weg zur einheitlichen Reichspolizei seit 1933” (1939), 48 ff.; W. Best, “Die Geheime Staatspolizei,”
DR
(1936): 125 ff., 257 ff.; Best, “Die Schutzstaffel der NSDAP und die Deutsche Polizei” (1939); Best,
Die Deutsche Polizei
(1941), 28 ff., 41 ff., 50 ff., 62; Malz, “Der Weg der deutschen Polizei” (1936), 461; Schmidt, “Polizeiverwaltungsrecht” (1937); Sievers, “Maßnahmen der Polizei außerhalb ihrer sonstigen Grenzen” (1940); A. Schweder,
Politische Polizei
(1937); Heydrich, “Die Bekämpfung der Staatsfeinde” (1936), 121; Wagner, “Die Umgestaltung der Gerichtsverfassung” (1968), 293 ff. The diagram in Best,
Die Deutsche Polizei
, shows the intricate system of new police branches (
Ordnungspolizei
—uniformed police, Security Police) and their impenetrable intermeshing with the police authorities of the
Länder, Regierungspräsidien
and
Kreise
(summer 1941).

On the responsibilities of the Security Police and the regular police, in particular the duties and responsibilities of the Gestapo, cf. “Geheime Erlaßsammlung des Chefs SIPO und des SD-RSHA Berlin” (no date); BA RD 19/3 (in Allgemeine Erlaßsammlung des RSHA); for more details, see Kluge and Krüger,
Verfassung und Verwaltung
(1941), 393 ff.; on the tug of war between the Security Police and the regular police for increased powers, particularly the arguments over powers because of the intention of the chief of the SIPO and the SD to take over the passport office, which was really the purview of the regular police, cf. a letter from the chief of the main office of the regular police (Daluege) to the chief of SIPO and SD (Heydrich), October 1, 1941 (IfZ, MA 325, 8591–8615).

6.
In a decree issued by the Führer and Reich chancellor concerning the appointment of a chief of the German police of June 17, 1936 (
RGBl.
I 487), the police leadership was subordinated to Heydrich in his capacity as RFSS, a merger of functions that created the office of
Reichsführer
-SS and chief of the German police in the Reich Ministry of the Interior (for further details see Maunz,
Gestalt und Recht der Polizei
, 6 ff.). At this time the police were effectively detached from the internal administration and made into an independent apparatus; cf. decree of Reich Ministry of the Interior on the creation of a Central Office of the Security Police and a Central Office of the regular police, June 26, 1936 (
MinbliV
[1936]: 947). The focus of police powers and activities was of course in the area of the SIPO, as their organizational plan of July 31, 1936, shows (BA R 22/4219). Of the four offices Administration and Justice, Political Police, Criminal Police, and Security Police, that of the Political Police was the most important: in 1939 the Central Office of the Security Police was merged with the SS’s own Security Service, the SD to create the Reich Security Main Office (decree of the RFSSuChddtPol of September 27, 1939, International Military Tribunal, Nuremberg, 38:102 ff.); the Gestapo was run from Office 4, the Criminal Police from Office 5 (crime prevention) (Organizational plan of the RHSA of October 1, 1943, ZS, Ordner 103, Bl. 125; also in BVerfGE 6, 132 ff. 208).

7.
In this sense see also Maunz,
Gestalt und Recht der Polizei:
“Thus, one direction continues working with the old basic concepts … with the notion, express or tacit, that it is in the Führer’s power to eradicate old concepts by means of a change in the law; not getting rid of them was tantamount to a decision that they should continue…. The other direction advocated change, proposing a blanket clause for police responsibilities and police actions, the gist of which was that every value held by the
völkisch
order and the leadership of the Reich should be protected by use of police powers. In practical terms, though, the two directions were not far removed from one another” (56). Very clearly also, “the concepts of security, order, and danger proved so elastic they could be used to justify any action whatsoever by the police which ‘furthered the interests of the community,’ protected
völkisch
values, supported the order of social life. This gives them a tactical superiority over their opponents…. Hardly does a new example of such usage appear, coined by the vanguard in their struggle against the old concepts, than the old legal practices, now become too restrictive, are discarded and official powers of defense of the state are extended to include the new case.” (57).

8.
The starting point was sec. 7 of the Prussian Law on the Gestapo, February 10, 1936 (Preußische Gesetzessammlung, 21). See also the decree circulated by the chief of the Prussian Gestapo on March 9, 1936 (Allgemeine Erlaßsammlung des RSHA, 2 F 1); guidelines on consistent conduct of protective custody in an unpublished decree of the Reich Ministry of the Interior, April 12, 26, 1934 (quoted in Broszat, “Nationalsozialistische Konzentrationslager” [1965], 35); for further details, see Tesmer, “Die Schutzhaft und ihre rechtlichen Grundlagen” (1936), 137; Scheerbarth, “Polizeirecht” (1942), 52.

9.
Already before the cessation of judicial review of Gestapo measures under the terms of sec. 7 of the law promulgated on February 10, 1936 (PrGS, 21), the administrative court had refused its reviewing responsibilities (Prussian Administrative Supreme Court, May 2, 1935,
RVerwBl.
[1935]: 577; Bavarian Administrative Court, October 17, 1934,
DJ
[1935]: 300); regarding affirmation of the fundamental legality of protective custody by the criminal courts, cf. German Supreme Court, September 30, October 28, 1935 (
JW
[1935]: 3380; [1936]: 388; State Superior Court, Kassel, October 7, 1934,
DJ
[1934]: 1647).

10.
Sec. 7 of the law of February 10, 1936 (Preußische Gesetzessammlung 21), which was implemented uniformly throughout the Reich.

11.
RGBl.
I 1582; by a Führer’s directive of June 7, 1939 (
RGBl.
I 1039), the decree of November 14, 1938, was to some extent also introduced in the Protectorate of Bohemia and Moravia. For more details on this decree, see Maunz,
Gestalt und Recht der Polizei
, 13 ff., 16 (with examples).

12.
Prime examples of this practice of boundless discretion are the administrative decrees of the
Reichsführer
-SS and chief of the German police.

13.
For a detailed account, see Echterhölter,
Das öffentliche Recht im Nationalsozialismus
, 207 ff.; cf. for example OVGE, 101, 206;
DVerw
(1936): 319; Thür. Prussian Administrative Supreme Court,
Jahrbuch der Entscheidungen des Thür. Prussian Administrative Supreme Court
, 17, 74; and Sächs. Prussian Administrative Supreme Court,
Jahrbuch des Sächs. Prussian Administrative Supreme Court
, 90, 180; Bad. State Administrative Court, Reger 58:147; and
DVerw
(1939): 286; “Verwaltungsgerichtshof Wien,”
DVerw
(1939): 313 ff., concerning the withdrawal of a dental technician’s credentials for the same reasons: because this did not accord with “sound national sentiment” (
gesundes Volksempfinden
). The withdrawal of an innkeeper’s license was condoned; he had tolerated the presence of “adherents of Communism” in his restaurant (Prussian Administrative Supreme Court,
DVerw
[1936]: 319).

14.
Decree no. V 15653/35 II, August 15, 1935, quoted in Bay. Decisions of the State Administrative Court, VGHE 56, 213 ff., 215.

15.
Bay. State Administrative Court, VGHE, 56, 213; in the same sense also Bad. State Administrative Court, Reger 55:191.

16.
Bavarian Higher Administrative Court, February 4, 1938 (VGHE 59, 76 ff.) (Priniciples: “(1)…. (2) The ban on employing female Aryan personnel under forty-five years of age to wait in public houses and bars where most of the customers are German and very few are Jews is substantiated neither by the Law on Public Houses nor by the Reich Law on the Protection of German Blood and German Honor of September 15, 1935—nor by appropriate application of sec. 3 thereof.”)

17.
Fraenkel,
Der Doppelstaat
(1974), 105, 121, with examples.

18.
JW
(1937): 1032. The court emphasized the dangers that would arise as a result of rescinding the right to trade: “The repeal and modification of laws is not the responsibility of the judge, even those he personally considers out of line with Nazi thinking…. The right to make the law is alone that of the Führer.”

19.
The decision was rescinded on the strength of a judgment by the Prussian Administrative Supreme Court on November 21, 1935 (
RVerwBl.
[1936]: 353).

20.
Decision of June 17, 1936 (
DVerw
[1937]: 305): “Whether or to what extent … individuals can be restricted in their freedom of action must be decided by the police authorities in accordance with their statutory … discretionary powers.” The court could only check whether the discretion had been properly exercised. This was the case.