"Non-Germans" Under the Third Reich (238 page)

109.
See
Richterbrief
no. 6 of March 1, 1943, and no. 9 of June 1, 1943 (BA R 22/4002). See also Brettle,
DJ
(1942): 431 ff.

110.
See
Richterbrief
no. 7 of July 1, 1943 (BA R 22/4002).

111.
See note 100.

112.
Richterbrief
no. 17 of March 1–April 1, 1944, 40 (BA R 22/4002).

Part Two. Section 1. A. III. The Situation of “Non-Germans” in Procedural Law

1.
Legal foundation: decrees of March 21, 1933 (
RGBl.
I 136); November 20, 1938 (
RGBl.
I 1632); September 1, 1939 (
RGBl.
I 1658); and February 21, 1940 (
RGBl.
I 405).

2.
More details in Johe,
Die gleichgeschaltete Justiz
(1967), 92;
Ministerialrat
Rietzsch and
Ministerialdirektor
Crohne (both of the Reich Ministry of Justice), “Die Arbeit der Sondergerichte im Kriege.”

3.
Reich Supreme Court, October 6, 1939, quoted in Redeker, “Bewältigung der Vergangenheit als Aufgabe der Justiz” (1964), 1100 n. 97.

4.
Malz, “Richtertum im nationalsozialistischen Staat” (1941), 2220.

5.
Hagemann,
DJ
(1941): 769 ff.

6.
Statements by Thierack at the meeting of the presiding judges of the courts of appeal and chief public prosecutors, Berlin, February 10–11, 1943 (BA R 22/4200).

7.
Ibid.

8.
Cited in the situation report of September 3, 1942, by the senior public prosecutor, Kattowitz (Katowice) (BA R 22/850). Since, however, the directives issued by the ministry generally lagged behind the prevailing situation, it may be presumed that it was already regarded as “undesirable” for Germans to defend Poles and Jews before the courts; in professional tribunals it was forbidden de facto; see part 1, section 1, V, 1, a, “Attorneys and Related Professions,” notes 53–58.

9.
Situation report by the senior public prosecutor, Kattowitz (ibid.).

10.
These ideas were presented by the presiding judge of the Hamburg Court of Appeal in a speech to Hamburg judges. Though Jews were still permitted to appear before the court as witnesses, their testimony was to be evaluated “with caution.” The practice of the district of Hamburg, whereby no judgment was passed on the basis of evidence by a Jew, should become standard practice in all courts on the basis of an instruction (quoted by Steiniger and Leszczy
ski,
Das Urteil im Juristenprozeβ
[1969], 237). For the circular, see Nuremberg doc. NG-744. Every opportunity should be taken to manage without such witnesses. If it was not possible to avoid questioning a witness, this should not take place in the main trial itself but before a specially commissioned judge, and statements made by Poles and Jews in cases against Germans should always be considered with the “greatest reservation.” Charges against Germans by Jews were to be pursued only if they were “clearly” justified. Furthermore, the person pressing charges should not be informed of the outcome of the investigation.

11.
For more details, see Dünnebier,
DR
(1942) (A): 1445: it was the obligation of the court to hear Polish witnesses apart from the main trial proceedings.

12.
The project was communicated by way of an urgent memorandum from the Reich Ministry of the Interior to the Reich Ministry of Justice, RFSSuChddtPol, Reich Ministry for Education of the People and Propaganda, the Party Chancellery, and RMuChdRkzlei on the same day (BA R 43 II/15080; also Nuremberg doc. NG-151).

13.
Response of the Reich Ministry of the Interior in an urgent memorandum to the Reich Ministry of Justice dated August 13, 1942 (ibid.). Urgent memorandum of August 12, 1942, from the Reich Ministry for Education of the People and Propaganda to the Reich Ministry of Justice (ibid.). Regarding the usurping of penal powers over Jews by the police, see the report by the IfZ, Munich, vol. 2, 391 ff.

14.
Letter dated November 16, 1942, from the Reich Ministry of Justice to the head of the Party Chancellery (BA R 32/1512). See also the Reich Ministry of Justice memorandum of September 18, 1942 (BA R 22/4062); RSHA instruction of September 5, 1942, to the higher SS and police leader, that all “alien” persons, especially Poles, Jews, and Gypsies, should be taken into police custody (Nuremberg Doc. I-316); speech by the Reich minister of justice before the senior presiding judges and chief public prosecutors, Berlin, September 28, 1942 (BA R 22/4199a).

15.
RGBl.
I 372; executive decree of September 1, 1944,
RGBl.
I 201.

16.
The police authorities had already anticipated the decree—cf. the RSHA directive of March 11, 1943—regarding the transfer of Jews who had been released from custody and of all Jews to be released from custody in the future, for life, to the Auschwitz and Lublin concentration camps; quoted in a secret circular letter of April 21, 1943, from the Reich Ministry of Justice to the chief public prosecutors (BA R 22/4053); for the Annexed Eastern Territories, see the RFSS circular decree of December 28, 1942,
MinbliV
(1943); 45, whereby the criminal prosecution of Jews was to be carried out by dispatching them to the nearest police station “for further action.” According to guidelines subsequently issued by the RFSSuChddtPol on January 3, 1943, the police authorities were instructed to pass on all current criminal charges and all ex officio criminal and preliminary investigative proceedings to the Gestapo post responsible for the domicile or current place of residence of the Jew involved “for further action,” from a RFSSuChddtPol circular dated July 3, 1943,
MinbliV
(1943): 1085 (Nuremberg doc. NG-326). The justice department itself had for years prepared the way to giving the police a free hand with Jewish criminals by regularly passing information to the Gestapo; see the Reich Ministry of Justice instruction dated January 20, 1939, to the head of the public prosecutor’s office in Leitmeritz (Litom
ice), ordering that the Gestapo was to be informed of the conclusion of a trial for
Rassenschande
by sending a copy of the judgment with, if applicable, the day of release, six weeks in advance, ex officio. A corresponding general instruction doubtless existed in the Reich, too; the instruction referred to was required on account of the introduction of the Nuremberg Laws in the Sudetengau by the decree of December 27, 1938 (
RGBl.
I 1997).

17.
Minutes of meeting (BA R 22/4200), Thierack’s speech, Bl. 33 f.

18.
Ibid., 54.

19.
Statements by
Ministerialrat
Grau, Reich Ministry of Justice, minutes of meeting (ibid.).

Part Two. Section 1. Excursus. 1. The Influence of the Party

1.
Once under the orders of the
Reichsführer
-SS (Führer’s decree of June 17, 1936, RGBl. I 487), the police force became directly answerable to the Party, since the SS was a subdivision of the latter (sec. 2 of the Executive Decree of March 29, 1935, to the Law to Secure the Unity of Party and State, RGBl. I 502, in the version of January 12, 1938, RGBl. I 36); since, however, with respect to their organization, the Party and the police force remained independent, they are treated separately here.

2.
Law to Secure the Unity of Party and State of December 1, 1933 (RGBl. I 1016), sec. 2, in conjunction with art. 1 of the Law to Relieve Distress in the Nation and Reich of March 24, 1933 (RGBl. I 141). With the renaming of the office of the deputy of the Führer to “Party Chancellery,” the head of the Party Chancellery further became a member of the Ministerial Council for the Defense of the Reich (Führer Decree on the Position of the Head of the Party Chancellery, March 29, 1941, RGBl. I 295) and thus was automatically associated with all legislative work concerning Reich laws, Führer decrees, Ministerial Council decrees for the defense of the Reich, and decrees by the supreme Reich authorities, as well as with all laws promulgated with the approval of the so-called Reich Council (sec. 2 of the executive decree of January 16, 1942, under the Führer decree, RGBl. I 35).

3.
Under the Führer decree of February 2, 1935 (RGBl. I 18), the power of clemency rested with the Führer himself; through the decree of September 3, 1939, he had passed this power to the Reich Ministry of Justice “for the duration of [his] absence from Berlin”; Hitler nevertheless reserved the right to make the decision himself in individual cases (Nuremberg doc. NG-700). Thus, on the basis of this decree, the Reich minister of justice was empowered to order execution of the sentence; if he wished to grant a pardon, Hitler had to be consulted via the head of the
Presidialkanzlei
(Hitler’s chancellery as president) (letter of August 17, 1943, from the RMuChdRkzlei, Nuremberg doc. NG-302). In the latter years of the war, the cases to be submitted to Hitler each month were limited to the most important ones in which there was some doubt (letter of November 15, 1944, from the head of the Presidial Chancellery, Meissner, to the RMJ [Nuremberg doc. NG-302]), since in the great majority of cases over the past two years the Führer had gone along with the suggestions of the Reich minister of justice (the letter of November 11, 1944, to the head of the Presidial Chancellery [ibid.] states that of the more than 290 proposals for a reprieve put forward by the Reich Ministry of Justice in the previous two years, the Führer had refused only one [see also the following note])

4.
Reich Ministry of Justice circular decree dated April 7, 1936 (RGBl. I 1462), with instructions to the chief public prosecutors also to consult the competent Gestapo bureau in the investigation of petitions for pardon. A confidential circular instruction from the Reich Ministry of Justice dated March 8, 1943 (Nuremberg doc. NG-302), ordered that death sentences should be carried out with the greatest haste, without involvement of other agencies (such as the Gestapo or the police).

5.
Administrative instructions of June 10, 1938, from the RMJ,
DJ
(1938): 925.

6.
Communication of October 23, 1942, from the RMuChdRkzlei to the Reich Ministry of Justice (BA R 22/vorl. 20087) and corresponding internal Reich Ministry of Justice directive of November 1942 (Nuremberg doc. NG-327); the directive applied only to cases in which the Reich Ministry of Justice itself recommended leniency; see also the affidavit of April 23, 1947, by the former Reich Ministry of Justice official responsible for pardons in so-called nonpolitical death sentences (Nuremberg doc. NG-1307), according to whom all petitions for a reprieve were normally rejected by Reich Minister of Justice Thierack.

7.
Details will be found in Weinkauff and Wagner,
Die deutsche Justiz
(1968), 1:119 ff.

8.
Secs. 1, 3 of the Law to Secure the Unity of Party and State of December 1, 1933 (RGBl. I 1016).

9.
The Nationalsozialistische Reichsjustizamt (Reich Judicial Bureau of the NSDAP) was set up at NSDAP headquarters with the objective of “organized training and education of the German judiciary.” For details, see Johe,
Die gleichgeschaltete Justiz
(1967), 197 ff.; Weinkauff and Wagner,
Die deutsche Justiz
, 237 ff.; W. Steinlechner, “Der Richter im Dritten Reich” (diss., Mainz: 1974), 119 ff.