> Copy .
The Reich Minister of Justice .
9170 Ostgeb. 2IIa 2 996.41 . .
. Berlin, 17th April 1941
To the Reich Minister and Chief of the Reich Chancellery
Subject: Penal law against Poles and Jews in the annexed Eastern territories.
Reference: Letter dated 28th November 1940—RK 17 428 B—.
1 enclosure (file notice) to a2—1826.41 .
It has been my opinion from the outset that the special conditions prevailing in the annexed Eastern territories require special measures of penal law and penal procedure against Poles and Jews. When the special courts were introduced in the Eastern territories by the ordinance of the Commander-in-Chief of the Army, dated 5 September 1939, I immediately endeavoured to make these courts, with their particularly swift and vigorous
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procedure, a center for the fight against all Polish and Jewish criminality. Proof that I have succeeded in this is provided by the impressive statistical figures of the special courts for the first ten months of their activity in the Eastern territories. Thus, for instance, the special court at Bromberg passed death sentences on 201 defendants and sentences for hard labor for life on 11 defendants; 93 defendants were sentenced to 912 years of hard labor in all, averaging 10 years each. Only minor offences were prosecuted before the "Amtsgerichte" [ordinary lower courts]. The'"Strafkammern" [Criminal High Courts] have,not been employed so far as possible, because their sentences are subject to appeal [Revision] to the "Reichsgericht" [Highest court of Appeal]. I wished to avoid that any court which is not fully acquainted with the special conditions prevailing in the Eastern territories—and be it the highest court of the Reich—should decide in these matters.
The aim to create a special law for Poles and Jews in the Eastern territories was pursued further according to plan by the ordinance dated 6th June 1940. By this ordinance German Penal Law, which had been, used in the Eastern territories already from the outset, was formally made applicable. In the sphere of criminal procedure the obligation to prosecute no longer applies; the public prosecutor instigates prosecutions only in cases where he considers the infliction of penalty to be in the public interest. The procedure for enforcing a prosecution (Art. 172 ff. of the Code for Penal Procedure) has been abrogated. For it seems intolerable that Poles or Jews should be able to force the German public prosecutor to instigate an indictment. Poles and Jews have also been deprived of the right to prosecute in their own names or to join the public prosecutor in an action.
In addition to this special law in the sphere of law procedure some special conditions have been included in Art. II of the introductory ordinance. These provisions were established in agreement with the Reich Minister for the Interior on the basis of needs which had made themselves felt. From the beginning it was intended to augment these special conditions in case of need. This need, which had become apparent in the meantime, was to be met by an executive and supplementary order, which was added to the original ordinance and which was referred to in the letter from the Fuehrer's deputy. This letter also mentioned the ordinances concerning the introduction of the law of extradition and of the law concerning the use of arms by authorized persons in-the forest and wild life protection service, which however,, are
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only loosely connected with the criminality of the Poles and Jews and were to serve merely the progress of general adjustment of law in the Eastern territories. As regards these two latter ordinances, as well as the executive ordinance concerning the law for the annulment of penalties and the ordinance concerning the penal register, I shall try to bring about an agreement with the deputy of the Fuehrer.
Later I was informed of the express wish of the Fuehrer that, as a matter of principle, the Poles (and I presume thé Jews) are to be treated differently from the Germans within the sphere of Penal Law. After preliminary discussions with the presidents of the high courts of appeal [Oberlandesgerichte] and the presiding public prosecutors of the annexed Eastern territories, I drew up the enclosed draft concerning criminal law and procedure against Poles and Jews within the annexed Eastern territories and within the area of the former Free City of Danzig.
This draft represents an altogether special law both in the sphere of penal law and penal procedure. The suggestions of the deputy of the Fuehrer have been taken into consideration to a far reaching extent. No. 1, par. 3 contains a general crime formula on the basis of which any Pole or Jew in the Eastern territories can in future be prosecuted and any kind of punishment can be inflicted on him for any attitude or action which is considered punishable and is directed against Germandom. This provision is supplemented by No. 1, par. 2 which is already contained in the introductory ordinance, and which threatens the death sentence as the absolute punishment for any act of violence committed against a German because of his belonging to the German race. The cases under No. I, Par. 4, which are already contained in the introductory ordinance, are merely amendments, which perhaps would have been unnecessary in view of the new general crime formula. I have included them nevertheless, in order not to give rise to the erroneous opinion that the limits of criminal liability as defined in this draft are narrower than those of the law hitherto in force. Finally, Ño. II, makes it clear that, apart from everything a German renders himself liable to punishment. In addition, the regulation permits a far reaching application of the law (Par. 2. of the Penal Code) in tune with the requirements of the Eastern territories.
In accordance with the opinion of the deputy of the Fuehrer I started from the point of view that the Pole is less susceptible to the infliction of ordinary imprisonment. Therefore I had already taken administrative measures with the aim of keeping
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Poles and Jews separate from other prisoners and to inflict punishment on them in a more severe manner. No. Ill goes a step further and replaces imprisonment, viz. the penal camp and the severe penal camps. Under these new kinds of punishment the prisoners are to be lodged outside prisons in camps and are to be forced to do heavy and heaviest labor. Further administrative orders are envisaged, concerning specialities in the sphere of disciplinary punishment (dark cells, transfer from penal camps to severe penal camps etc.)
The new kinds of punishment under No. Ill are applicable to all offences committed by Poles and Jews, even if the offence falls under a provision of the German Penal Code. On the other hand, No. Ill, Par. 3, makes sure that, less than the minimum period of punishment and less than any obligatory punishment prescribed in any German criminal law may be inflicted if the offence was directed exclusively against the offender's own race.
The section concerning procedure contains first of all special provisions of the introductory ordinance already in force. But in future it will no longer be permissible for a Pole or a Jew, on wham sentence has been passed by a German court, to lodge an appeal against the sentence. He has no right to complain, nor may he apply for a retrial. All sentences should be open to execution at once. In future Poles and Jews may no longer challenge German judges as biased; nor may they be put under oath. The conditions under which measures of compulsion may be used against them have been eased. It is also important that according to No. X Par. 2 the local higher court decides on applications for annulment on technical grounds [Nichtigkeits Beschwerdem]; this will prevent any court not located in the Eastern territories from passing judgment in a case against Jews and Poles. For the rest No. XII gives both the court and the public prosecutor every freedom they can possibly require vis-a-vis the "Gerichtsverfassungsrecht" [law concerning the constitution of the courts] and the Reich Law of Criminal Procedure.
It is the purpose of No. XIII to ensure the applicability of the special laws for Poles and Jews and of the abrogation of prosecution enforcement even in cases, where the Polish or Jewish offender, though domiciled in the Eastern territories, has committed an offence in some other part of the Great German Reich.
A criminal law of this kind directed especially against Poles and Jews would not, in my opinion, restrict the freedom of action of the German authorities and officials; nor would the Poles and Jews take advantage of its issuance by making unjustified accusa-
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tions or complaints against German officials. The penal law ^provides threats of punishment of such increased severity that the deterent effect is assured to the strongest degree. Any hole in the law by which a Polish or Jewish criminal might escape, has been closed. As- far as criminal procedure is concerned, the draft constitutes a clear expression of the political inequality of Germans on the one hand, and Poles and Jews on the other.
The introduction of corporal punishment, which the deputy of the Fuehrer has brought up for discussion, has not been included in the draft, either as a form of criminal punishment or as a disciplinary punishment. I cannot agree to this type of punishment, because its infliction does not, in my opinion, correspond to the cultural level of the German people.
The main features of the criminal procedure proposed by the draft are greatest speed together with immediate execution of sentences; thus it will not be inferior to the procedure in courts martial. Those administering criminal justice will have the opportunity of inflicting even the heaviest penalties in every suitable case, and: thus be able to cooperate actively in realizing the political aims of the Fuehrer in the Eastern territories.
I intend to submit the bill for approval to the Council of Ministers for the Defence of the Reich. Before so doing, I wish, however, to discuss the matter with you, Sir, personally, and to ask you to obtain the decision of the Fuehrer as to whether he agrees to the basic principles of the bill.
signed: Dr. Schlegelberger
Copy
The Reich Minister of Justice .
9170 Ostgeb/2—Ila 2-182641
Berlin W.8, 30th June 1941 Express Letter
To the Reich Fuehrer SS and Chief of the German Police in the Reich Ministry of the Interior.
Subject: Administration of Criminal. Justice in the an, , nexed Eastern territories. . ' ...
Reference: Letter to the Reich Minister' and Chief of Reich Chancellery, dated,16th May 1941—II A 2 (new) No. 127/41 173/1 and the letter addressed to me by the Main Office of
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Reich Security, dated 29th May 1941—11 a 2 (new) No. 205141
—176-7. , ' . .
2 enclosures. ....
In the enclosure I transmit the following documents on which I would ask you to give your opinion at £n early date:
1. draft of an ordinance concerning the administration of
criminal justice against Poles and Jews in the annexed Eastern territories and the area of the former Free City of Danzig; . .
2. copy of my letter to the Reich Minister and Chief of the Reich Chancellery, dated 17th April 1941—9171 Ostgeb. 2 Ila 2 996/41—giving the reasons for this draft......
The draft has now been supplemented .by Article.XIII concerning the procedure of. courts-martial. This supplementary article' is based on a decision , of the Fuehrer, of which I was informed through a letter from the Reich Minister and Chief of the Reich Chancellery dated 27 May 1941—Rk 7760 B; according to this decision the Reich Governor in the Reich Gau Wartheland is to be empowered to introduce courts-martial against Poles in his district. ' :
In order to obtain a quick settlement of this urgent matter which is of importance for the war, I should lie grateful if a personal discussion could be arranged. I ask for telephone call to fix the time for a conference. .
Charged with the conduct of affairs.
Reich Main Security Office -II A 2—No. 3U2li.l—170— " . ' _
.:... . 7, Berlin SW 11, 11th July 1941
" . .. . .8 Prinz-Albrecht Street
. : Copy ...;L. : ' G
Subject matter: Administration "of Criminal Justice in
. - J annexed Eastern Territories.........
1. Note: '-- 1......... : - : .
The ordinance draft, which was sent to us for consideration by the Reich Minister for Justice with a covering letter of 30th June 1941 (pages 161 fF. of the file), was discussed at an informative meeting of the competent officials of the Reich Main. Security Office and of the Reich Civil Police Main Office, Reich Fuehrer
693261—47—6 *
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SS—Reich Commissioner for the Consolidation of the German Race—took part in the discussions, because the invitation, dated 7th July 1941, arrived late.
The discussion had the following results:
I. The general lines of the provisions of chapter 1 (criminal law) and chapter 2 (criminal procedure) are to be approved. They correspond to the principles followed by. the police in dealing with Poles.
It should however, be suggested to the Ministry of Justice to insert in Chapter 2, Paragraph XII, a minimum of legal guar-: antees for the legal procedure; this might be done by adding to the present version the following sentences:
"In any case however, the defendant should be granted a hearing, if need be with the help of an interpreter.
The names of the judges and of the defendant, the evidence on which the sentence is based, and the offence, the sentence with a brief opinion, and the date of the sentence should be taken down in writing in each case."
II. Chapter 3 (procedure under martial law) requires several modifications or clarifications:
1. The Reich Governors (Statthalter) are to be bound not only by the consent of the Reich Minister for Justice, but also by the consent of the Reich Minister of the Interior. This amendment is needed to safeguard the influence the police must have on introduction and procedure of martial law. Under the present provision, which requires only the consent of the Minister of Justice, there is the risk that the intended martial law becomes a martial law under the supervision of the administration of justice and not a martial law for the purposes of the police.
2. The Reich Governors must have authority to declare martial law uniformly for the whole area [Gaue] under their administration. The present wording—Bezirke [districts] does not make it quite clear whether they have such authority.
3. The persons who are subject to the procedure under martial law should be the same as those to whom the other provisions of the ordinance refer. Therefore in Par. XIII Jews as well as Poles must be mentioned.
4. The jurisdiction of the courts-martial as stated in the bill is too narrow. They must be giv^n authority:
a. to pass judgment under martial law on all excesses, not only on more serious ones against Germans,
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b. to pass judgment under martial law, even on minor offences which seriously endanger the German reconstruction work because of their frequency.
The words "more serious" before "excesses" and before "punishable offenses", must therefore be deleted from the draft.
5. Confinement to a concentration camp is, by definition, not a punishment but a measure of precaution. The provision whereby the court acting under martial law may sentence an offender to confinement in a concentration camp must therefore be amended.
The courts acting under martial law need, however, the authority to punish by imprisonment—though in this case it is for the Secret State Police and not for the law administration to carry out the sentence. The present wording of Paragraph XIII, sec. 2 must therefore be changed to read as follows:
"The penalties to be inflicted by the courts acting under martial law are the death penalty or imprisonment (penal camp). The execution of the penalty of imprisonment is the duty of the Secret State Police."
6. It must be made clear whether the Reich Governors are authorized to implement independently the provisions regarding the nomination of judges for the procedure of courts-martial, or whether the Reich Minister for Justice intends to reserve the right to withhold his consent for a declaration of martial law unless the Reich Governors refer to him any steps they take in these patters.
III. The present wording of chapter 4 (extension of jurisdiction and authorization) does not take into consideration that the police is authorized at present to inflict penalties for minor offences of Polish civilian workers within the territory of .the Reich. This power is based upon an authorization granted to the Reich Fuehrer SS by the Reich-Marshal. The provision as drafted would therefore mean a deterioration of the legal position of the police in favor of the judiciary.
Provision must therefore be made for one of two alternatives:
а. - either the competence of the police as defined hitherto,
must be maintained expressly,
б. or martial law must be made applicable to Poles within
the whole territory of the Reich.
The latter proposal is preferable because it should be the ultimate goal to make Poles subject to the jurisdiction of the police.
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IV. The items mentioned under No. I—III are to be discussed by department II A 2 with the Reich Ministry of Justice. It should be ascertained to what extent the Ministry of Justice is prepared, to meet the wishes of the police. Thereafter the draft embodying the final position of the police toward the Reich Minister of Justice is to be submitted to the Reich-Fuehrer SS. The draft is to be signed by all police departments who participate in the discussion.
Copies to -a. Main Office Civil Police, c/o Ministerial Counselor Dr.
Daemper,
b. Reich-Fuehrer SS, Reich Commissioner for the Consolidation of the German Race, -c. Office III—III A 3 1
d. Office IV—IV D 2 ¡-of the Reich Main Security Office
e. Office V—V A 1 J ,
following my letter of the 7th July 1941-—II A 2 No. 205 VIII/41 —476-7, for information, by order:
signed: Neifeind.
[Stamp] .
The Reich-Fuehrer SS, Reich Commissioner for the Consolidation of the German Race Received: 14th July 1941 4 W File No. : COI/28R/5th Aug. 1940.
. 1. Dr. Bilfinger Office II V. informs me on enquiry tliat the draft has been amended by agreement with the Reich-Minister of. Justice and has been submitted to SS-Group Fuehrer Wolff for signature. The draft will be forwarded to the Reich-Minister of Justice and will be described as the final opinion of the Police.
We shall receive copy.
2. To be submitted again 19th August.
-, ' initialled: 30th July. ' . .
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Copy
The Reich-Fuehrer SS and Chief of the German Police in' the Reich-Ministry of the Interior
S II A 2 No. 3U21U1—176. .
. Berlin SW 11, 1st August 1941
8 Prinz-Albrecht Street
I have no objections against the proposals.
Signed: Dr. Kr 27th Aug.
.. , -i . . . c—3/1-3
To the Reich Minister for Justice ;
Berlin, W.8. ;
Wilhelmstr. 65
Subject Matter: Administration of Criminal Justice in the Annexed Eastern Territories.
Reference: Express letter dated 30th June 1941—9170 Ostgeb/2-II a: 2 1826.41
With reference to the discussion held by our respective officials on 14 July 1941, I wish to make the following comments on the draft you have submitted
Generally I agree to the draft and welcome the special conditions to which Poles and Jews are to be subject both with regard to criminal law and criminal procedure. The réintroduction ôf martial law in the annexed Eastern Territories conforms with the wishes I have expressed several times.
I request you, however, to take into consideration the following specific points :
1. According to Paragraph XII the procedure is to be arranged by the court and the public prosecutor as they think fit in consideration of their duty. On principle I agree with this. However, in the earlier draft for a - court-martial procedure which was worked out with your collaboration, a minimum of legal, guarantees was provided for. This I would like to see preserved in future also. The present wording of Paragraph XII would result in an unusual situation whereby the rules for ordinary. procedure would be less stringent than those for the pror cedure under martial law. Therefore, please amend the wording of Paragraph XII accordingly. '
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2. In Paragraph XIII (procedure under martial law) please provide for the consent of the Reich Minister of the Interior in addition to consent of the Reich Minister of Justice.
3. During the discussion of the bill by the officials concerned, it became clear that the Reich-Governors [Reichsstatthalter] should be authorized to declare martial law for any parts of their area as well as for the whole of their area. The present wording is open to doubt, I propose therefore the following wording:
" * * * for the area of his administration or specified parts thereof".
4. Although it may safely be assumed that in the future there will be no more Jews in the annexed Eastern territories, I am of the opinion that under present circumstances it is very urgent to provide martial law not only for Poles but for Jews as Well. Therefore please insert in Paragraph XIII after the word "Poles" the words "and Jews".
5. Concerning the clause "and for other more serious offences which gravely endanger the German reconstruction work", please delete the word "more serious" so that martial law may be applied also to those cases which in themselves are not particularly serious but which might become a serious danger to the German reconstruction work because of their frequency, (e. g. smuggling), and which urgently require immediate and draconic action for purposes of intimidation.
6. So far, the Secret State Police alone imposes protective custody. Furthermore, protective custody is by definition not a punishment but a measure of precaution and education. Therefore please amend section 2 of Paragraph XIII to read perhaps as follows:
"The penalty to be inflicted by the courts under martial law is the death penalty. The courts proceeding under martial law may, however, dispense with punishment and order transfer to the Secret State Police instead."
In this way due consideration would be given to the wishes of the Fuehrer and the aforementioned difficulties of terminology would be avoided. ,
7. I agree also to the extension of jurisdiction as provided in Paragraph XIV. But as you know, Reich-Marshal Goering, in his ordinance "of 8 March 1940, has delegated to me the responsibility for the proper conduct of the Poles. He has authorized me to issue the legal and executive provisions neeessary for this purpose. I have made use of this authorization by issuing
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the ordinances dated 8 March 1940—S IV D 2 No. 382/40—and 3 September 1940—S IV D 2 No. 3382/40. These ordinances are also known to you. The present wording of Paragraph XIV does not make it quite clear whether this arrangement will remain unaffected. I note that the draft is not intended to bring about any change in this arrangement; I consider it necessary nevertheless, to make it quite clear by means of a brief remark in Paragraph XIV, that the aforementioned authorization granted to me by Reich-Marshal Goering and the ordinances issued by me remain unaffected.
By order:
Signed: Heydrich.
Reich Main Security Office
IIA 2 No. 3Jf2/Jil—176— Berlin, the 11th August 1941
Copy
to Reichs-Fuehrer SS—Reich-Commissioner for the Consolidation of the German Race c/o attorney Dr. Kraeuter—or his deputy—in Berlin By order:
Signed: Neifeind.
Certified (signed) Heybutzki, secretary.
Stamp of: '
The Reich-Fuehrer SS and Chief of the German Police in the Reich-Ministry of the Interior.
The Chief of the Security Police and the SD (SecurityService).
Stamp of:
The Reich-Fuehrer SS, Reich Commissioner for the Consolidation of the German Race. B Received: 14th August 1941.
File No: C—3/1/—3/lst Aug. 1941.
Submitted to Dr. Kraeuter for action 15 Aug. [initials].