"Non-Germans" Under the Third Reich (269 page)

64.
Cf. the circular of September 15, 1943, from the
Gau
Office for National Affairs in the
Reichsgau
Wartheland (
Gauamtsblatt der NSDAP, Gau Wartheland
, pp. 18/43): “According to the directives of the
Reichsführer
-SS—Central Settlement Office—pressure should be exerted on the spouse of German nationality or origin to petition for annulment of the marriage if the partner of Polish origin refuses to be registered in the German Ethnic Classification List…. Needless to say, an error regarding the nationality of the other spouse justifies annulment of the marriage. But also an error with respect to the true significance of the nationality should always be given considerable weight in the judgment of the Warthegau courts in the light of the national-racial struggle.” Regarding application of sec. 4 of the Decree on the Administration of Justice in the Eastern Territories in marriage law, see also Posen Court of Appeal,
DR
(1942) (A): 938.

65.
Material in State Archive Pozna
,
Landgericht
Posen 10 ff.

66.
Pungs, Buchholz, and Wolany,
Ostrechtspflegeverordnung
, Ziff. V, regarding sec. 19, first executive decree (162 f.).

67.
Other provisions that were not to be implemented were secs. 84, 85, and 93 of the Marriage Law; further, secs. 86–92 and 94–98 were applicable analogously (ibid., 165 f.).

68.
Most associations had long been dissolved before the Decree on the Administration of Justice in the Eastern Territories came into effect (probably by way of a simple implementing regulation) and deleted from the register of associations. In Danzig–West Prussia, all
Polish
associations had been dissolved through the Decree on Associations and Meetings of September 10, 1939 (
Verordnungsbl. Militärbefehlshaber Danzig-Westpreuβen
no. 11, p. 11) (Pungs, Buchholz, and Wolany,
Ostrechtspflegeverordnung
, Ziff. II regarding sec. 3, first executive decree).

69.
RGBl.
I 83.

70.
RGBl.
I 444.

71.
Pungs, Buchholz, and Wolany,
Ostrechtspflegeverordnung.

72.
Prussian Supreme Administrative Court, December 15, 1938,
JW
(1939): 717.

73.
Pungs, Buchholz, and Wolany,
Ostrechtspflegeverordnung
, Ziff. V regarding sec. 3, first executive decree (84).

74.
Ibid., 83.

75.
Ibid.

76.
Letter of November 26, 1940, from the head of the Security Police and the Security Service to the deputy of the Führer (BA R 4 II/1520).

77.
Buchholz, “Zur Ostrechtspflege VO,” 2480.

78.
Enke, “Die Rechtspflege im Volkstumskampf,” 2489 ff., 2491 f.

79.
Buchholz, “Zur Ostrechtspflege VO,” 2480.

80.
Ibid.; this quotation is one of the few in which the “German interest” is also explicitly mentioned from the standpoint of the judges; see also Fechner, “Das bürgerliche Recht in den eingegliederten Ostgebieten,” 2481 f. (2485), who reaches the same conclusion but on the basis of sec. 4, Decree on the Administration of Justice in the Eastern Territories.

81.
Enke, “Die Rechtspflege im Volkstumskampf,” 2490.

82.
For more details see Fechner, “Das bürgerliche Recht in den eingegliederten Ostgebieten,” 2485.

83.
Sec. 5 included, for example, “appeals and objections by Poles against a judgment by default, since they were in contradiction with the ‘demands of the State and
Volk
’; opposition on the part of Poles to an order for arrest or a temporary injunction; petitions by Poles to reopen an earlier Polish judicial dispute; petitions by Poles to permit execution … of a ruling of a [former] Polish court … if it favored a Pole against a German; petitions by a Pole in voluntary jurisdiction cases that could go against a German” (see Pungs, Buchholz, and Wolany,
Ostrechtspflegeverordnung
, 40).

84.
Buchholz, “Zur Ostrechtspflege VO,” 2480.

85.
Pungs, Buchholz, and Wolany,
Ostrechtspflegeverordnung
, 41.

86.
Buchholz, “Zur Ostrechtspflege VO,” 2480.

87.
RGBl.
I 383.

88.
Pungs, Buchholz, and Wolany,
Ostrechtspflegeverordnung
, 37 f.

89.
Fechner, “Das bürgerliche Recht in den eingegliederten Ostgebieten”; Pungs, Buchholz, and Wolany,
Ostrechtspflegeverordnung
, Ziff I H 6 regarding sec. 5 (40).

90.
See Fechner, “Das bürgerliche Recht in den eingegliederten Ostgebieten,” for more details.

91.
The reason for this may have been the decision to annul to the benefit of the German defendant, the term of limitation—which had been interrupted by the prosecution (sec. 209, par. 1, Civil Code)—of the plea that had been allowed, which was not automatically terminated by interruption of the proceedings. Interruption of the procedure was probably equivalent here to a verdict rejecting the plea without interrupting the term of limitation (sec. 212, Civil Code). Cf. Pungs, Buchholz, and Wolany,
Ostrechtspflegeverordnung
, 40.

92.
Pungs, Buchholz, and Wolany,
Ostrechtspflegeverordnung
, 36 f. With this the Reich minister of justice relinquished the principle of equality before the law for “aliens” and Germans; the only principle remaining was that “some legal basis must remain for Poles,” but only insofar as this corresponded with the “spirit of the assimilation into the Reich” (letter of September 18, 1940, from the Reich Ministry of Justice to the RMuChdRkzlei, BA R 43 II/1520).

93.
Fechner, “Das bürgerliche Recht in den eingegliederten Ostgebieten,” 2488.

94.
Clause 1, pars. 1–3, and clause 2, Decree on Penal Law for Poles of December 4, 1941 (
RGBl.
I 759).

Part Two. Section 3. The Implementation of
Völkisch
Inequality in the General Government; Introduction

1.
See sec. 1 of the Decree on the Development of the Judiciary in the General Government of October 26, 1939 (
VBl. GG
1939, 4) (reproduced in
Doc. Occ.
6:102 ff.). Weh, “Das Recht des Generalgouvernements” (1940), 100: “A German and a Polish court system exists in the General Government.” The idea of separation also comes out clearly in the terms
German courts
and
non-German courts.

2.
Report of July 1, 1940, 1:44 ff. (BA R 52 II/247).

3.
Governor General Frank at a reception for the president of the German Superior Courts in the General Government, September 15, 1943 (“Diensttagebuch,” 1943, V, September 15, 1943, BA R 52 II/207).

4.
Wille, “Aufbau der Sondergerrichte” (1942), 5 ff. (6) (University Library, Warsaw, Sign. 011249). (Wille was head of the Central Department of Justice in the General Government.)

5.
See part 2, section 3, B (“Criminal Law as the Principal Tool of Discriminatory Law”), notes 75–77.

6.
Bericht über den Aufbau im Generalgouvernement
1 (1940): 51 (BA R 52 II/247).

7.
Wille, “Aufbau der Sondergerrichte,” 5 ff. (6).

8.
Speech by the governor general at the inauguration of the German judiciary in the General Government on April 9, 1940 (“Diensttagebuch,” 1940, I, 280 ff., BA R 52 II/176).

9.
For more details, see Best, “Grundfragen einer deutschen Großraumverwaltung” (1941).

10.
This was true only in the field of the judiciary, since the whole Polish judicial organization (with the exception of the Supreme Court in Warsaw) remained intact (Decree of October 26, 1939, on Polish Jurisdiction in the General Government,
VBl.GG
I, 64), but not for the general administration, which, with the exception of the municipal administration, was destroyed.

11.
Cf. sec. 2, par. 1, of the Decree of October 26, 1939, on the Development of the Judiciary in the General Government (
VBl.GG
1939, 4; also published in
Doc. Occ.
6:102 ff.), under which it was incumbent on the German judiciary to protect against attacks on the security and reputation of the German Reich and people and on the life, well-being, and property of German citizens.

12.
Decree on Polish Jurisdiction in the General Government of February 19, 1940 (
VBl.GG
1940 I, 64).

13.
“Diensttagebuch,” January 19, 1940 (quoted from a copy at the IfZ).

14.
At the occasion of the inauguration of the German Superior Court in Radom on May 25, 1940, Governor General Frank stated:

A further thought is that this court organization [whereby he means the German organization—Author] of the General Government does not have to be the model for the Polish jurisdiction. It goes without saying that we must compare this jurisdiction with the native [!] jurisdiction in other parts of the world. The internal conflicts of the Polish people should be dealt with in the particular Polish manner. But even in this smallest domain, anything that could be detrimental … to the German power structure must be ruled out. The German judiciary … is therefore bound to a certain activity that both safeguards Germanness … and oversees the Polish administration of justice and in a certain sense develops it. (“Diensttagebuch,” 1940, II, May 25, 1940, 525 ff., quoted from the copy at the IfZ).

15.
Broszat,
Nationalsozialistische Polenpolitik
(1961), 158.

16.
RGBl.
I 2077.

17.
Tautphaeus, “Der Richter im Reichsgau Wartheland” (1941), 2466.

18.
These included, inter alia, penal law, economic management, labor law, currency regulations, wage and price control, police law, the church and cultural spheres, prices, etc.

19.
Cf. sec. 1, par. 2, of the Decree of February 19, 1940, on Polish Jurisdiction in the General Government (
VBl.GG
1940 I, 64).

20.
For more details, see Thiesing, “Ein Jahr deutsche Gerichte im GG” (1941); Hubernagel, “Aufbau und Aufgabe der deutschen Gerichte im GG” (1941). A detailed description of the German and Polish judicial apparatuses will be found in Wille, “Drei Jahre Aufbauarbeit in der Justiz des GG” (1942). For a full treatment of the structure of the special courts, see Wille, “Aufbau der Sondergerichte”; and Wille, “Die Rechtspflege im Generalgouvernement” (1942); also K. Wille,
Das Generalgouvernement, Seine Verwaltung und seine Wirtschaft
(Kraków, 1943), 106.

21.
Thus, the head of the Central Department of Justice in the General Government, K. Wille, like his colleague Dr. Ganser, acted as adviser for political crimes in the Reich Ministry of Justice; a list of political advisers in the Reich Ministry of Justice for 1938 includes these two names (BA R 22/1462). See also part 2, section 3, A (“The Function and Structure of the German Judiciary”), note 24.

Part Two. Section 3. A. The Function and Structure of the German Judiciary

1.
Cf. in this connection the statements by Frank at a reception for the president of the German Superior Courts in the General Government on September 15, 1943: The principle of “letting alien justice be administered by alien personnel” was correct; the Polish judiciary had functioned “satisfactorily,” and the German leadership could “safely leave it with a certain degree of independence” (“Diensttagebuch,” 1943, V, September 15, 1943, BA R 52 II/207).

2.
Frank in a speech to German judges at the inauguration of the German Superior Court in the General Government on April 9, 1940 (“Diensttagebuch,” 1940, II, April 9, 1940, excerpts in
Doc. Occ.
6:108 n. 15).

3.
Statements by Governor General Frank at the occasion of the inauguration of the German Superior Court in Radom on May 25, 1940, where he said, “We cannot fall into the error of those jurists of the eighteenth century who praised
Rechtsfindung
as the highest purpose and acted on the principle of
fiat justitia, pereat mundus”
(ibid., May 25, 1940, 525 ff.).

4.
Decree of February 19, 1940, on Polish Jurisdiction in the General Government (
VBl.GG
1940 I, 64, reproduced in
Doc. Occ.
6:116 ff.).

5.
Decree of October 19, 1942, on Non-German Jurisdiction in the Galicia District (
VBl.GG
1942, 653).

6.
Secs. 4–6 of the decree cited in note 4 above.

7.
Courts of appeal existed in Warsaw, Kraków, and Lublin before September 1, 1939, so that a court of appeal needed to be established only in Radom and later (1941) also in Lemberg (L’viv) (Wille, “Die Rechtspflege im Generalgouvernement” [1942]).

8.
See full details in ibid.

9.
By the end of March 1940, all the Polish courts were once again functioning in the district of Warsaw, for example (progress report of the Justice Department in the district of Warsaw dated April 9, 1940, Archives of the Main Commission Warsaw, Regierung des GG/Hauptabteilung Justiz V/87); by the end of June, the Polish judiciary employed a total of 4,145 people, 998 of whom were judges and public prosecutors (approx. ten times as many as the number of German judges and public prosecutors), 2,455 office staff, and 692 ushers and prison officers (
Bericht über den Aufbau im Generalgouvernement
1 [1940]: 55, BA R 52 II/247).