"Non-Germans" Under the Third Reich (235 page)

15.
Reich Supreme Court, March 8, 1940,
DJ
(1940): 597: “If the behavior of the accused toward women is considered as part of a single act,” cases would also be included in which there was no contact with the woman’s body; thus, “in such cases too it is proved that the woman’s body was used for sexual intercourse”(!).

16.
Reich Supreme Court, September 8, 1937, HRR 1938, 267; December 9, 1937,
DJ
(1938): 154; November 21, 1939, HRR 1940, 475; October 26, 1939, HRR 1940, 272.

17.
Reich Supreme Court, September 5, 1938,
DJ
(1938): 1698; similarly, Reich Supreme Court, January 7, 1937,
JW
(1937): 468 (RGSt 71, 4), and
DJ
(1937): 283 f. (RGSt 71, 7); and January 5, 1939,
JW
(1939): 340 (RGSt 73, 76).

18.
Reich Supreme Court, March 28, 1938, RGSt 72, 148 (a “man of German blood” had relations with a Jewish woman who took care of his household. The Supreme Court imposed a more severe punishment because the lower court had been excessively lenient). The refusal to admit mitigating circumstances was based on an instruction of the Reich Ministry of Justice to the chief public prosecutors and senior public prosecutors not to make the long duration of a relationship grounds for leniency (quoted in H. Robinsohn,
Justiz als politische Verfolgung
, 124 f.).

19.
Reich Supreme Court, April 17, 1939, 924 f.

20.
RGSt 70, 291; Reich Supreme Court, November 28, 1938 (2 D 731/38),
JW
(1939): 227 f., no. 14; December 5, 1940 (2 D 498/40),
DJ
(1941): 225 ff.; March 6, 1936 (6 D 52/36), 517; Reich Supreme Court, June 21, 1937 (3 D 273/37),
Deutsches Strafrecht
(1937): 259 f. (an error regarding membership in the Jewish community is a minor error on the significance of a particular fact of the case); for the contemporary rulings of the Supreme Court on errors, see A. Schönke, Penal Code, 1944, sec. 59, Erl. 6, with references on the Blood Protection Law.

21.
Reich Supreme Court, October 14, 1938,
DJ
(1939): 102; February 23, 1938, RGSt 72, 91; May 2, 1938,
DJ
(1938): 1033; February 9, 1940,
DJ
(1940): 486.

22.
Reich Supreme Court, October 12, 1937,
JW
(1937): 3083.

23.
Reich Supreme Court, December 14, 1937,
JW
(1938): 447: “It is not necessary for a particularly serious case to be proven for a sentence of penal servitude to be passed” (guiding principle).

24.
Quoted in Robinsohn,
Justiz als politische Verfolgung
, 124 f.; see also 76, 126 ff., 140, 78. For confirmation of the figures: ibid., 76–79, 94 ff., 103. The duration of the sentence was between 1½ and 2½ years of penal servitude; see, e.g., Dortmund District Court, May 8, 1939 (BA R 22/4425); Berlin District Court, March 23, July 3, 6, 1939 (all BA R 22/4426); Reich Supreme Court, in RGSt 72/161; 70/109; 70/218, and
DJ
(1939): 102, 480, 618, 870, 924, 1283, 1303;
DJ
(1940): 404, 486.

25.
Nuremberg doc. NG-2286.

26.
Special Court, Kassel, S 3 Js 107/42 (VII 6–43 S). After the war the judges and public prosecutors were accused of perversion of justice but were acquitted on March 28, 1952, by the Kassel Court of General Sessions (3a KS 3/50—Schw. 3/50) (quoted by Noam and Kropat,
Juden vor Gericht
[1975], 173, who describe the interesting background to this case [Holländer had also had sexual relations with the daughter of the presiding judge of the district court, whose husband was serving in the field]).

27.
Special Court 3, Berlin PKL s 35/42—2 C 12/43.

28.
Walk,
Als Jude in Breslau
(1975), 47.

29.
Quoted in Robinsohn,
Justiz als politische Verfolgung
, 106 f.

30.
Quoted in ibid.; Robinsohn relates the case in full on the basis of the archives of the public prosecutor’s office.

31.
Nuremberg-Fürth District Court, Reg. f. H. Sg. 351/41; Hitler refused a reprieve for Katzen-berger in spite of support by State Secretary Schlegelberger and although Freisler had also expressed legal doubts about this decision. Katzenberger was executed on June 3, 1942 (archives of the Nuremberg-Fürth District Court, regarding a case against the judges Ferber and Hoffmann, 7/28 Ks 1/68 a-b); See also Staff,
Justiz im Dritten Reich
(1964), 194 ff. After the war the American military court sentenced the president of the special court, Rothaug, to life imprisonment on account of Katzenberger’s trial, inter alia; the sentence was later commuted to twenty years, but he was released in 1967 after eleven years’ imprisonment. Ferber and Dr. Hoffmann were tried for murder in conjunction with perversion of justice at the Court of General Sessions of Nuremberg-Fürth. They were initially sentenced on April 5, 1968, to three and two years’ imprisonment, respectively, for manslaughter. The German Federal Court reversed this decision on July 21, 1970 (1 StR 119/69), since the Court of General Sessions had not sufficiently considered certain points of view that could have led to a verdict of murder. In the meantime Ferber’s trial has been suspended on account of the defendant’s unfitness to plead. The case against Dr. Hoffmann, against whom a new trial was instituted, was provisionally suspended by a decision of April 7, 1974 (Az. Nuremberg-Fürth District Court, Ks 1/68 a-b).

32.
RGBl
. I 759.

33.
For the illegality of the Decree on Penal Law for Poles, see BVerfGE 6, 132 ff., 186; Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeβ
(1969), 201 ff., 209.

34.
Richterbrief
no. 4 of January 1, 1943, Ziff. 16;
Richterbrief
no. 9 of June 1, 1943, Ziff. 24, BA R 22/4002. These were death sentences pronounced for extremely minor acts, above all damage to material property. See also the reports of the presiding judges of the courts of appeal and chief public prosecutors, Berlin, of February 10–11, 1943, with negative statements by Reich Minister of Justice Thierack regarding this practice, that it was of course wrong to impose a death sentence and then to recommend clemency (BA R 22/4200).

35.
Regarding the question whether, in the case of particularly serious acts committed by Poles and Jews, it was possible to pronounce a death sentence that was not provided for under the general criminal code—as was permitted by the Polish Penal Code Decree, clause 3, par. 2, subpar. 2—the judicial practice of the Reich Supreme Court did not require investigation of whether the act was particularly serious in relation to comparable acts (the principle of equality under the law) but was based on the question whether the act was “particularly serious” compared with “any
conceivable
act by a Pole” (RGSt 76, 151; also
DR
[1942] (A): 1157). In the opinion of the Reich Supreme Court, it was essential to clarify whether a criminal act by a Pole was a
repeated
or an
isolated
act, since in any case the decree only provided for a standard penalty (prison camp) (
DR
[1943] [A]: 80). The court also had no objection to
retroactive
application of the decree, as introduced in the decree of January 31, 1942 (
RGBl.
I 52) (
DR
[1943] [A]: 80).

36.
Reich Supreme Court, July 7, 1941,
DJ
(1942): 75.

37.
See Schönke, Penal Code, 1944, 156, 473.

38.
Charge against the former president of the Stuttgart Special Court, Cuhorst, quoted in Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeβ
, Ziff. 1, 63 (emphasis mine).

39.
Führerinformationen
no. 66 of July 3, 1942 (Nuremberg doc. PS-632). Charge against Cuhorst, in Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeβ
, Ziff. 1, 69 (Pitra case); this case may be identical with the one spoken of in
Führerinformationen
no. 66.

40.
Thus, on October 29, 1943, the Nuremberg Special Court condemned a Polish woman to death for sexual intercourse with an “alien” on the strength of the Polish Penal Code Decree, clause 1, par. 3, where clearly the only ground for punishment was the nationality of the “culprit” (charge against the former associate judge of the Nuremberg Special Court, Oeschey, quoted in Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeβ
, 71, Kami
ska case: “The German people, engaged in a difficult defensive struggle, rightly expect the most rigorous action against such foreign elements…. The special significance resides in the fact that the culprit is a Pole”).

41.
Situation report of March 18, 1942, by the presiding judge of the Königsberg Court of Appeal to the Reich Ministry of Justice (BA R 22/850), who wished to exempt the woman from punishment by analogy with the “racial defilement” cases. The Posen (Pozna
) chief public prosecutor opposed this with the argument that according to the Blood Protection Law, the acquittal of the woman was “not the criterion in the national struggle against the Poles.” It was, however, necessary to punish the German man, for whom penal provisions still had to be established (situation report by the chief public prosecutor, Posen, May 12, 1942, BA R 22/850).