"Non-Germans" Under the Third Reich (237 page)

91.
State Secretary Freisler to the presiding judges of the courts of appeal and chief public prosecutors, Berlin, March 31, 1941, Johe,
Die gleichgeschaltete Justiz
(1967), 129. According to a report by the SD in
Meldungen aus dem Reich
of November 6, 1941, the Essen Special Court condemned a Polish exhibitionist, who had exposed himself in “indecent attire” to women and children, to six years’ penal servitude and castration (SD: “fair” judgment), after the public prosecutor had demanded the death penalty (BA R 22/166).

92.
See the situation report of January 5, 1942, by the presiding judge of the Nuremberg Court of Appeal (BA R 22/3381), according to which the majority of the forty death sentences pronounced by the end of 1941 were against Poles, and most of the accused were Poles, Czechs, Belgians, and French.

93.
According to
Meldungen aus dem Reich
, no. 235 of November 6, 1941 (BA R 58/166), the Nuremberg Municipal Court sentenced a Pole to three years’ imprisonment for bodily harm, whereas a Pole who had first been slapped by the victim was sentenced by the Bonn Municipal Court to two months’ imprisonment for grievous bodily harm; the Münster Municipal Court condemned a Pole to ten months’ imprisonment for a sexual offense against two children; the Rosenheim Municipal Court condemned a Polish agricultural worker who injured the wife of his employer to three years’ imprisonment (SD: a “misjudgment” which was also discussed in legal circles).

94.
Meldungen aus dem Reich
of November 6, 1941 (BA R 58/166).

95.
Letters of July 5, 1944, from the Reich Ministry of Justice (signed by Klemm) to the presiding judge of the Stuttgart Court of Appeal (the verdicts of the courts of appeal in matters of incitement to subversion were in “intolerable disproportion in relation to the sentences of the People’s Court and other courts of appeal”) (Nuremberg doc. NG-676), and of March 1, 1945, to the presiding judge of the Hamburg Court of Appeal (“regrettably lenient” demands and sentences in matters of incitement to subversion; the death sentence should be passed even in cases of moderate fault) (Nuremberg doc. NG-627). As early as September 1, 1936, the Reich Ministry of Justice had published a circular instruction denouncing overly lenient verdicts and calling upon the presiding judges of the courts of appeal to “bring strong pressure to bear” on the judges in racial defilement cases in order to counter “a racial decadence of the German people” (Erlaßsammlung des RMJ, BA); see also Reich Ministry of Justice decree (Freisler) of June 12, 1940, to the presiding judge of the Vienna Court of Appeal (criticism of fifteen verdicts with the “expectation” of greater severity in the future; attempts to achieve “an understanding in ‘appropriate penalties’ by way of instructions to the public prosecutor” were “not highly successful”) (BA R 22/51).

96.
The personnel records of the presiding judges of the courts of appeal and chief public prosecutors (Federal Justice Ministry) certainly contain no such references.

97.
Richterbrief
no. 18 of August 1, 1944, Ziff. 14 ff., discussed the case of a 74-year-old widow who had been fined RM 50 for stealing a rose from a cemetery. For having clinked her glass of beer with a French prisoner of war, a 30-year-old innkeeper was fined RM 20, and an innkeeper and his wife (monthly income RM 400) were fined RM 500 for having sold six liters of cider to a French prisoner of war (BA R 22/4002).

98.
Richterbrief
of October 1, 1942, Ziff. 4 (BA R 22/4002).

99.
Meldungen aus dem Reich
of November 6, 1941 (BA R 58/166) (SD reports on domestic matters, November 1941 to December 1943, Bl. 188 ff.)

100.
Since 1939 the presiding judges of the courts of appeal and chief public prosecutors were obliged to submit regular so-called situation reports (circular instructions of November 25 1935, III, 196, and of December 9, 1935, Ia, 11012) with details of important events, the political situation, and the mood of the population. The justice apparatus used these reports to steal a march on the police, who were always well informed on what was going on. Uncoded from the jargon of the time, the situation reports provide a clear picture of the distaste of the population for the arbitrariness of the police, the manipulation of the judicial system, and the mass arrests and executions of “aliens” by the police (more details in Weinkauff,
Die deutsche Justiz
[1968], 167 ff.). With the exception of the chief public prosecutor of Hamburg, who generally stated that nothing of importance was happening in the region concerned, all the senior judiciary officials reported on events in great detail. Situation report collection, BA Koblenz.

The control of the judiciary apparatus in the individual districts fell to the presiding judges of the courts of appeal by way of regular discussions with the presiding judges of the district courts, or it was delegated to the latter, who were to meet regularly with the judges before and after trials (see Reich Ministry of Justice circular instruction of October 13, 1942, State Archive Pozna
Landgericht
Posen, 17, Bl. 170-71; confidential letter of November 4, 1942, from the presiding judge of the Posen Court of Appeal to the presiding judge of the Posen District Court, Bl. 170; situation report of July 3, 1942, by the chief public prosecutor, Kattowitz [Katowice], describing the virtually total surveillance of the judiciary [BA R 22/3372]). Such management meetings occasionally took place before 1942; after 1942 they commonly took the form of “previews and reviews.” Regarding the reluctance of certain presiding judges of the courts of appeal to accept these discussions, see the minutes of the meeting of senior presiding judges and chief public prosecutors of September 29, 1942; situation report of December 3, 1942, by the chief public prosecutor of Karlsruhe (“heavy load,” offense directed against “the legal establishment itself”), quoted by Wagner, “Die Umgestaltung der Gerichtsverfassung” (1968), 362; also Johe,
Die gleichgeschaltete Justiz
, 184 ff.

Measures of control included the establishment of a central public prosecutor’s office for political criminal affairs in the Reich Ministry of Justice (administrative instructions of July 24, 1933,
JMBlatt
235; administrative instructions of October 6, 1937, BA R 22/1143, 1462, Bl. 119a). To ensure uniformity of application of the law, recording and assessment of decisions, and coordination with the Party, a general political desk was created in the Reich Ministry of Justice under the direction of senior public prosecutor Klemm (Reich Ministry of Justice organization structure, April 1938, BA R 22/4223, 1462, 119b). In “exceptional cases,” the court authorities were authorized to change the allocation of duties without the support of the law, “if urgently required in the interests of judicial practice” (Reich Ministry of Justice circular instruction of March 15, 1943, Erlaßsammlung BA). With the exception of the right to issue instructions to the public prosecutor’s office (“influence on investigations and arraignments”), control of the judiciary was always disguised in the form of “references,” “recommendations,” or “suggestions” to the courts, issued by way of circular instructions, administrative instructions, or decrees. This included the
Richterbriefe
(BA R 22/4002) published by the ministry, in which individual judgments were discussed and the desirable general policy for the courts made known. See also the internal Reich Ministry of Justice instruction of June 8, 1944, containing the request for the appropriate material (BA R 22/4275). A later addition were the
Sonderbriefe
dealing with individual cases, and so-called
Rechtsanwaltsbriefe
(from 1944 on) (see BA R 22/4275). In specific cases, the ministry intervened directly (e.g., by instructions to the relevant presiding judges of the courts of appeal to take “appropriate measures,” i.e., transfer, against judges who did not toe the line; see Wolfram and Klein,
Recht und Rechtspflege in den Rheinlanden
[1969], 226 f.), and from 1941 onward, centralized meetings of the senior presiding judges and chief public prosecutors in the Reich Ministry of Justice, in which the basic principles of judicial policy were presented (see BA R 22/246, 4163; regarding controls prior to 1939, see Sauer,
Das Reichsjustizministerium
[1939], 24 ff., who complains of the limited possibilities of influencing the judges, and Weinkauff and Wagner,
Die deutsche Justiz
[1968], 146 ff., 156 ff., 211 ff., with numerous references). Legislative instruments of control included pardons and pleas of nullity by the public prosecutors (more in Vollmer,
DJ
[1943]: 78 ff.).

101.
Meldungen aus dem Reich
of September 3, 1942, quoted in M. Broszat,
VjhZ
(1958): 440, 442.

102.
For the reception of this speech among judges, see the situation report of June 8 by the chief public prosecutor of Posen, 1942 (“depressed mood,” “desire to emigrate”) (BA R 22/3383). See also the SD reports,
Meldungen aus dem Reich
no. 50 of February 7, 1940; no. 181 of April 25, 1941; no. 271 of March 26, 1942; and no. 381 of May 1943, quoted in Boberach,
Meldungen aus dem Reich
(1968), 64, 224, 317; also
Meldung
no. 235 of November 6, 1941, and of September 3, 1942 (BA R 58/166). See F. Besselmann, “Die politische Aufgabe des deutschen Richters,”
DR
(1942) (A): 1762 ff.; W. Bergmann, “Über das Verhältnis von Rechtsprechung und Gesetzgebung,”
DR
(1942) (A): 1768 ff.; for the plea for a new type of judge as “vassal” of the Führer, see Rothenberger,
Der deutsche Richter
(1943); similarly, Dahm, “Richtermacht und Gerichtsverfassung im Strafrecht” (1941).

103.
Speech before the presiding judges of the courts of appeal and chief public prosecutors, Berlin, early May 1942 (minutes of meeting, BA R 22/4162).

104.
Speech by Schlegelberger in early May 1942 (ibid.), in which he claimed that the judgments on Jews pronounced by the Party Chancellery were too lenient: for example, the conviction to six weeks’ imprisonment of a Jewish shopkeeper who had sold three bottles of brandy in 1940, for “opening a Jewish business,” would now be dealt with much more severely. Possession of other identity papers than a Jewish identity card was a “serious case of identity card fraud.” Speaking of three Jewish women who had received four weeks’ imprisonment in Breslau for greeting one another with “Heil Moscow,” he said that such an act would today be punished as treachery or high treason (ibid., Bl. 55).

105.
Hitler in his Reichstag speech of January 30, 1937 (
Dok. der dt. Politik
, 5:33); in the Reichstag speech of December 11, 1941, he demanded that all elements “who had forgotten their duty” be “mercilessly” expelled from the “
Volk
community” (
Der Groβdeutsche Freiheitskampf, Reden A. Hitlers
[1943], 147 f.). Similar statements will be found in the conversations at table (Picker,
Hitlers Tischgespräche
[1951], 203).

106.
BA R 22/851.

107.
The
Richterbriefe
(BA R 22/4002) were published from October 1, 1942, until the end of 1944 (see note 100 above). See the collection in Boberach,
Richterbriefe
(1975).

108.
For more details on Thierack’s personnel policy, see the introduction to this volume, III, 2 (“The Principle of the Primacy of Party over State”). Formally, the will of the political leadership was embodied in the basic principle that only the Führer or the office authorized by him (the judiciary) was empowered to decree laws (Reich Minister of Justice Gürtner at the Eleventh International Congress on Criminal Justice and Prisons, Berlin, on August 20, 1935,
Dok. der dt. Politik
, vol. 307). Thierack contended that the Führer ought also to decide in
individual cases;
he strove after direct subordination of the Reich Ministry of Justice to Hitler, in line with the Italian model.

Examples of the consistent persecution of “non-Germans” include the report by the presiding judge of the Düsseldorf Court of Appeal at the meeting of the senior presiding judges and chief public prosecutors in Berlin, February 10–11, 1943, that after sentencing to death a Pole who had damaged a cable in a factory, a special court had recommended a pardon on the ground that no anti-German intention was proven (protocol, BA R 22/4200). The
Richterbrief
of January 1, 1943 (BA R 22/4002), mentions a 1942 special-court decision in which a Pole was sentenced to death for unauthorized possession of a weapon and activity in a secret organization up to the beginning of 1940, but expresses itself in favor of an act of pardon. See also the verdict of the Special Court, Frankfurt, sentencing to 5 years’ hard labor and a fine of RM 5,000 a Jewish shopkeeper who had served food to customers without ration tickets (
Berliner Morgenpost
, January 9, 1943, excerpts in ZS, Polen Film 58, Bl. 272).