"Non-Germans" Under the Third Reich (254 page)

100.
Minutes (see note 97 above).

101.
Thus, nepotism and preparatory acts should be “interpreted flexibly” as reprehensible acts in order to ensure that they too were punished (minutes, see note 97 above).

102.
The introduction stated, “They [Poles and Jews] shall be punished by death, in less serious cases by imprisonment, if they exhibit an anti-German attitude through malicious or inflammatory activity, and in particular make hostile statements or tear down or deface official notices put up by the German authorities or offices, or if through any acts they disparage or harm the reputation or the welfare of the German Reich or the German nation.”

103.
Minutes (see note 97 above).

104.
This is supported by the fact that Freisler had used the term as early as 1940 in an article, “Psychische Grundlagen der Polengreuel” (
DJ
[1940]: 557 ff.), in which he presents Polish history as one of continual struggles and divisions and the Poles themselves as incapable of creating a nation and unworthy of the European community.

105.
See also Stolleis,
Gemeinwohlformeln im Nationalsozialistischen Recht
(1974).

106.
Full details in Frank,
Nationalsozialistische Strafrechtpolitik
(1938), especially 35 ff.; Frank,
Nationalsozialistisches Handbuch für Recht und Gesetzgebung
(1934), introduction, xxi; Exner, “Wie erkennt man den gemeingefährlichen Gewohnheitsverbrecher?” (1943); Reich Supreme Court,
DJ
(1943): 527 (on the term
habitual offender
); Reich Supreme Court, May 22,1942,
DJ
(1942): 529 (the term
violent criminal
);
Richterbrief
no. 1 of October 1, 1942, p. 4 (the term
antisocial parasite
);
Richterbrief
of June 1, 1943, point 24 (BA R 22/4002) (the term
asocial element
).

107.
Freisler,
DJ
(1940): 557; and Freisler, “Ein Jahr Aufbau der Rechtspflege im Reichsgau Wartheland,”
DJ
1940: II, 1125 ff.; the article by Beurmann, “Das Sondergericht Danzig,”
DR
(1942) (B), also gives an example of the rich fantasy of the judiciary with respect to Poles: “The tranquility, the studied seriousness, the clear eye, the straight posture, the almost melancholic reticence of the East German contrasts with the restless, talkative, easily excited character, the bent body posture, the shifty eyes, the playful superficiality of the Poles.” The “lack of love for the truth, a tendency to fantasize, which sometimes borders on compulsive lying,” and “an underhand way in politics” are emphasized as particular character traits of the Poles, corresponding to their “slyness in military action.” “The judge should therefore not allow himself to be influenced by the excessive politeness and submissiveness on the part of Polish accused prisoners; they are generally not authentic but merely the expression of inner cunning.”

108.
The official number of ethnic Germans killed and missing was multiplied by ten, apparently at Hitler’s personal order (according to Hitler’s former military adjutant,
Hauptmann
Engel, quoted in Broszat,
Nationalsozialistische Polenpolitik
, 51). Documentation from the Foreign Office dated November 1939, which spoke of “approximately 5,400 murders,” was recalled, and instead all the relevant offices received instructions to quote the number of murdered and missing ethnic Germans as 58,000 in future (radio broadcast by the Reich minister of the interior, transcribed by the Posen police radio unit, February 7, 1940, photocopy at the IfZ). At the meeting of the Reichstag on December 11, 1941, Hitler even claimed that 62,000 ethnic Germans had died “as a result of Polish atrocities” (quoted in Freisler, “Das deutsche Polenstrafrecht,”
DJ
[1941]: 1129).

109.
This was above all true of the special courts, which had already been set up in the first weeks of the occupation in order to deal with the so-called September crimes. Most of these cases came before the Bromberg Special Court (Beurmann, “Das Sondergericht Danzig,”
DR
[1942] (B): 78), which had already been installed by Freisler personally on September 11, 1939, during the Polish campaign (Freisler, “Das deutsche Polenstrafrecht,”
DJ
[1941]: 1130; Thiemann, “Anwendung und Fortbildung,” 2474) and which actually passed the first three death sentences on that date; they were immediately carried out (Az. KLs Sd. 2/39, quoted in J. Gumbowski and R. Kuczma,
Zbrodnie Hitlerowskie, Bydgoszcz 1939
[Warsaw, 1967], 60 ff.).

110.
Freisler, “Ein Jahr Aufbau der Rechtspflege im Reichsgau Wartheland,”
DJ
(1941): 1125 ff., according to whom responsibility for the “September crimes” fell to (a) “the culprits,” (b) “the leadership of the Polish State,” (c) “the Polish intelligentsia,” and (d) the whole Polish people, “because demonstrably once again the underlying pathological nature of the Polish character has shown itself in a primitive manner.”

111.
Freisler, “Ein Jahr Aufbau der Rechtspflege im Reichsgau Wartheland,” 1130.

112.
Freisler, “Das deutsche Polenstrafrecht,”
DJ
(1942): 25 ff.

113.
RGBl.
I 844.

114.
The regulations on unauthorized possession of arms were simplified (clause 1, par. 4, sentence 5, Decree on Penal Law for Poles; sec. 15, pars. 1 and 3, Implementing Decree of June 6, 1940). The actions of collusion, incitement to commission of the offenses named in the special regulations, and failure to report such offenses were brought together under a single title (clause 1, par. 4, sentence 4, Decree on Penal Law for Poles).

115.
State Secretary Schlegelberger at a meeting of the presiding judges of the courts of appeal and chief public prosecutors in Berlin (minutes, undated, presumably May 1942, BA R 22/4162).

116.
Thus, e.g., the offense of “associating with prisoners of war” (punishable under the decree of May 11, 1940,
RGBl.
I 769, in conjunction with sec. 4 of the Decree on Supplementing the Penal Code for the Protection of the Defense of the German People of November 25, 1939,
RGBl.
I 2319) was punished as an “anti-German attitude” under the terms of clause 1, par. 3, of the Decree on Penal Law for Poles (cf. Łuczak,
Dyskryminacja Polaków
[1966], 128 f.).

117.
Unauthorized listening to foreign radio stations, for example, was punished as “anti-German behavior” under the terms of the Decree on Exceptional Radio Measures of September 1, 1939 (
RGBl.
I 1683) (enacted by the decree of April 29, 1940,
RGBl.
I 694), in conjunction with clause 1, par. 3, of the Decree on Penal Law for Poles.

118.
Situation report of March 2, 1942, by the chief public prosecutor of Kattowitz (BA R 22/3372, my emphasis).

119.
See Klinge, “Bemerkungen zur Begriffsbildung im Polenstrafrecht,” 325 f., who regarded such acts as the sale of “scarce goods” to Poles by Polish shopkeepers and the wearing of badges by Poles (“masquerading as a German”) as punishable under clause 1, par. 3, on account of “damage to the development” of the East. (Similarly, Freisler, “Das deutsche Polenstrafrecht,”
DJ
[1942]: 28). The same ought to be true of a Pole who lived in a new building and took the locks from the doors. Telling political jokes was also to be most severely punished on account of the “basically different Polish mentality,” compared with the German mentality. Sexual offenses were to be punished not, as under sec. 176 of the Penal Code, by penitentiary, but in conjunction with sec. 1 of the law of September 4, 1941, amending the penal code, by death (thus the verdict of the special criminal tribunal of the Reich Supreme Court of November 20, 1941,
DJ
[1942]: 265).

120.
Administrative instructions of May 19, 1943, issued by the Reich Minister of Justice,
DJ
(1943): 287.

121.
Situation report of March 2, 1942, by the chief public prosecutor of Kattowitz: the concurrence regulation under sec. 43 of the Penal Code (nominal concurrence) was no longer valid, since the commission of several punishable offenses merely strengthened the “infringement of the obligation of obedience, which could not be divided”; sec. 74 of the Penal Code (real concurrence) could also not be applied to Poles, since it was exclusively a protective clause in favor of Germans. Concurrent offenses by Poles thus always attracted the maximum penalty. A regulation from the Civil Code, sec. 4, par. 2, of the Decree on the Administration of Justice in the Eastern Territories of September 25, 1941 (
RGBl.
I 597), which was claimed to serve as a general basis of law in the Eastern Territories (BA R 22/3372), was cited as legal justification. (The regulation was worded as follows: “If the application of a regulation in an individual case gives rise to a result that is incompatible with the spirit of the assimilation in the Reich, the regulation should not be used, and such decision should be taken as corresponds with this spirit.”)

122.
Situation report of March 2, 1942 (BA R 22/3372).

123.
Ibid.

124.
Commentary of September 9, 1942, by the presiding judges of the courts of appeal and chief public prosecutors, Posen, on a draft by the Reich Ministry of Justice of a Decree on the Participation of Germans in Punishable Offenses by Poles and Jews of August 11, 1942 (State Archive Pozna
,
Reichsstatthalter
816, Bl. 8–11).

125.
Preamble to the Reich Ministry of Justice draft of August 11 1942 (ibid., Bl. 2).

126.
Draft of August 11, 1942, ibid.

127.
Administrative instructions of July 23, 1942,
DJ
(1942): 510 (
Doc. Occ.
5:342). The responsibility limit of 14 years was, however, also applicable in Polish penal law; see the letter from the Posen chief public prosecutor to the presiding judges of the district courts and the senior public prosecutors of the district (State Archive Pozna
,
Landgericht
Posen, 15, 104), according to which the decision to place Polish youths in “work training camps” could no longer be legally challenged by the tutelage judge (sec. 67, Reich Youth Welfare Law), but was subject to an
incontestable
provisional order by the juvenile judge under sec. 45 of the Procedural Law on Juveniles.

128.
This included plans to amend clause 11 of the Decree on Penal Law for Poles, according to which false statements made while not under oath in penal procedures were punishable under the regulations on “perjury and unintentional false statements,” such that false statements made while not under oath in
civil
suits, as well as false statements made under oath, were to become punishable under these regulations. It was further planned to extend the procedural regulations of the Decree on Penal Law for Poles, which were effective only in the Annexed Eastern Territories, to the entire Reich territory in the future (minutes of a discussion between representatives of the Reich Ministry of Justice and the executive officials of the Annexed Eastern Territories, July 28, 1942, BA R 22/850).

129.
Reich Ministry of Justice draft of August 11, 1940 (State Archive Pozna
,
Reichsstatthalter
816, 18).