Chapter 48

PARTIAL TRANSLATION OF DOCUMENT NG-629PROSECUTION EXHIBIT 28[Also Rothenberger Document 3Rothenberger Defense Exhibit 3]

EXTRACTS FROM A REPORT[312]ON A CONFERENCE OF DEFENDANT ROTHENBERGER AND VARIOUS COURT PRESIDENTS, 1 FEBRUARY 1939, CONCERNING “RACE POLLUTION,” EXCLUSIONS OF JEWS FROM EMPLOYMENT, AND “THE LEGAL TREATMENT OF JEWS”

Report on the conference of [court] presidents on 1 February 1939

Present:

Senator Dr. Rothenberger and the attorney general reported on the discussions at the meeting of the presidents of the courts of appeal and attorneys general with the Reich Minister of Justice.

*******

II a. The Chief Public Prosecutor then spoke again on the treatment of women in cases of race defilement. The Fuehrer refuses an extension of culpability according to the blood protection law [Blutschutzgesetz].

Concerning complicity he pointed out the contradictory opinions of police and justice. The public prosecutors are to work according to the following directives:

If a woman merely denies the intercourse she will not be prosecuted. On the other hand, if the woman was an active accomplice—if she concealed the race defiler for instance—she will be prosecuted. If, at the same time, there are other offenses (perjury) complicity is to be omitted from the indictment. In such cases, however, a report is to be made to the Reich Minister of Justice.

Senator Dr. Rothenberger pointed out once more that it is the Fuehrer’s desire that the woman should not be punished. If, by mistake however, any person should be indicted or if according to the results of the main proceedings punishment because of complicity may be expected, the proceedings are to be quashed in all circumstances. He urged that the judges be instructed accordingly.

II b. The Chief Public Prosecutor then discussed the problem of prosecuting women for failing to register illegitimate births. In this case the Fuehrer is against punishment according to article 169 for mere concealment of the identity of the father; because he considers that in most cases the woman’s motive should be respected. The woman will be prosecuted, however, if she gives false information concerning the father’s identity.

Senator Dr. Rothenberger completed this statement by saying that it was the Fuehrer’s express wish that the woman be exempted from punishment; the Fuehrer had not yet made a final decision in the matter of false statements. It should therefore be arranged that in such cases the indictment be temporarily postponed according to article 169. If necessary, a legal regulation may be expected in the near future.

III. Concerning the extent of the cases tried in accordance with the gangster decree, the Chief Public Prosecutor reports that up to now 15 cases have been tried by special court in the Reich territory, most of them in Hamburg. Care must be taken that accomplices do not escape punishment through the carrying out of the trial before a Special Court. The complete verdict must, on principle, be submitted before the death sentence is carried out.

Senator Dr. Rothenberger declared that it would be advisable to make the fullest possible use of the possibilities of the gangster decree. The Hamburg cases were considered suitable in Berlin. The Ministry had now realized that summary courts of the Hamburg type offer the only proper solution; they will therefore be maintained.

Insofar as Berlin exerts pressure concerning the speed with which the verdicts are delivered, this pressure must not go beyond the field of the administration of justice and affect the judges. The verdict must be submitted before the death sentence is carried out. In his opinion a typewritten report on the oral verdict, as prescribed for Hamburg, is sufficient.

He considers that the publication of sensational reports in the press on such trials is extremely undesirable; there was general agreement on this. Senator Dr. Rothenberger promised that he would personally contact the competent authorities in order to stop such reports in the future.

*******

V. The Chief Public Prosecutor then reported briefly that civil servants with Jewish blood are on principle excluded from employment and that it is necessary to make a report on exceptions.

No pressure is to be put on civil servants to induce them to subscribe to the Party newspapers.

VI. Senator Dr. Rothenberger then stated the ministry’s opinion on various special questions concerning the legal treatment of Jews.

(1) In cases where a Jew asks a bailiff to execute a sentence against an Aryan, the bailiff is not authorized to refuse to do so.

(2) Aryan tenants of a Jewish landlord are obliged to pay rent.

(3) Jews enjoy protection against eviction and tenant’s protection to the same extent as Aryans.

(4) The order suspending execution also applies to Jews in accordance with the laws in effect. There may be exceptions in individual cases, when it is purely a matter of opinion, for example when a radio is seized.[314]

(6) The fact that a debtor is a Jew should as a rule be a reason for arresting him. However, it depends upon the individual case.

(7) Security for the costs of litigation must not be demanded from a Jew to a larger extent than from anybody else.

(8) Naturally, a Jew may be heard as a witness, but extreme caution is to be exercised in weighing this testimony. Senator Dr. Rothenberger requested that no verdict should be passed in Hamburg, when a sentence would exclusively be based on the testimony of a Jew.

Senator Dr. Rothenberger then requested the presiding and supervising judges to accordingly and urgently call the attention of the judges concerned to the questions dealt with.

TRANSLATION OF DOCUMENT NG-590PROSECUTION EXHIBIT 198

LETTER FROM THE REICH MINISTRY OF JUSTICE, SIGNED BY DEFENDANT METTGENBERG, TO THE PRESIDENT OF THE DISTRICT COURT AND THE CHIEF PUBLIC PROSECUTOR IN HAMBURG, 1 APRIL 1939, CONCERNING THE REDESIGNATION OF JEWISH NAMES IN CRIMINAL PROCEEDINGS

Carbon Copy

The Reich Minister of Justice

III g^9 93/39

Berlin, 1 April 1939

[Stamp]

Hanseatic Court of AppealReceived: 15 April 1939

Through the President of the Court of Appeal and the

Attorney General, to 1412 Bls 1938—

To the

President of the District Court and the

Chief Public Prosecutor

Hamburg

Document reference made for: 400 1a

Subject: Criminal Case against the former physician Albert Israel Leopold for race defilement11 K Ls 108/38

In the indictment of 17 October 1938 as well as in the verdict of 14 December 1938, Leopold’s profession is given as a physician, although his permit expired on 30 September 1938 pursuant to article 1 of the fourth ordinance of the Reich Citizenship Law of 25 July 1938 (Reichsgesetzblatt I, p. 969). This applies also to the report of the Chief Public Prosecutor to the Reich Minister of the Interior of 6 February 1939. In this connection also the given name Israel should have been added to the first name Albert pursuant to article 2, section 1 of the second ordinance of 17 August 1938 for the implementation of the law concerning changes of family names and first names.[315]

I ask you to take the necessary steps and especially to take care that in criminal cases against Jews which were filed prior to 1 January 1939 the names given will be rectified as far as this has not already been done.

By order

[typed] Signed:Dr. Mettgenberg

1. 1 copy to the president of the district court with the request to make further use of it.

2. 2 copies to the attorney general

3. Wegl

19 April 1939

PARTIAL TRANSLATION OF DOCUMENT NG-880PROSECUTION EXHIBIT 459

LETTER FROM MINISTRY OF JUSTICE, SIGNED BY DEFENDANT SCHLEGELBERGER, TO MINISTER OF INTERIOR AND THE FUEHRER’S DEPUTY, 3 FEBRUARY 1940, TRANSMITTING DRAFTS OF DECREES FOR INTRODUCING GERMAN LAW INTO INCORPORATED EASTERN TERRITORIES, AND A MEMORANDUM OF THE REICH CHANCELLERY INITIALED BY LAMMERS AND DEFENDANT KLEMM

The Reich Minister of Justice

3200/4 1a-9-312

Berlin W 8, 3 February 1940Wilhelmstrasse 65Telephone 110044,Long distance 11 6516

Urgent

To:

a.The Minister of the Interior

b.The Fuehrer’s Deputy[316]

Berlin W 8

Wilhelmstrasse 64

Subject: Introduction of the German Court Constitutional Law, and German Criminal Law in the Incorporated Eastern Territories

Toa.In reply to communication dated 19 January 1940.

I East 40/40

4024

Enclosures: 3 drafts

I request agreement as soon as possible to the drafts enclosed—

(a) An order concerning the abolition of the district court of appeal at Marienwerder, and the modification of the court district.

(b) An order concerning the court organization and court constitution in the Incorporated Eastern Territories.

(c) An order concerning the taking effect of legal regulations in the sphere of the administration of criminal law in the Incorporated Eastern Territories.[317]

An additional draft concerning the introduction of legal regulations in the sphere of the administration of civil law will be dispatched at the same time.

I have likewise asked the Reich Minister of Economics and the Reich Minister for Public Enlightenment and Propaganda for their agreement with regard to article 1, I, Nos. 8, 10, and 11 of draft (c). Furthermore, I have asked for the agreement of the Reich Protector for Bohemia and Moravia concerning article 1, II, No. 2 of draft (c). The organization of the courts in the Incorporated Eastern Territories was completed several months ago, and German courts are working everywhere there and applying German law, without this application of law having found its legal basis. The Reich governor of the Reich Gau Wartheland in aletter dated 11 December 1939 told me that it is now desirable for the application of German law by German courts to receive a legal basis. Likewise the Reich governor of the Reich Gau Danzig/West Prussia had me informed that it would conform to his wishes if the German law were henceforth introduced legally in the Incorporated Eastern Territories. The introduction of German law is also necessary, because the regulation for the prevention of acts of violence in the Incorporated Eastern Territories, prepared by the Ministry of the Interior, tacitly implies the application of German criminal law and court constitutional law.

I note the following concerning the individual drafts:

1. Draft (a)—In this draft I have summarized those regulations from the draft of an order concerning court organization in the Incorporated Eastern Territories which I had dispatched together with a letter dated 26 October 1939—Ia-9-1961, according to which the district court of appeal at Marienwerder is to be abolished. At the same time the draft contains the measures necessary in this connection, and those for the relevant delineation of the court districts in the territory of the former Free City of Danzig.

2. Draft (b)—This draft regulates the court organization in the Incorporated Eastern Territories, with the exception of the territory of the former Free City of Danzig; at the same time it introduces court constitutional regulations, valid in the old Reich, into these parts of the territory.

3. Draft (c)—Reference to article 1—The temporary modifications of the law concerning criminal procedure contained in article 1, II, Nos. 1 and 2, are expressly desired by both Reich governors, and are essential with regard to the special circumstances in the Incorporated Eastern Territories.

The modification of the regulation of the Special Court dated 21 March 1933[318]provided for in article 1, IV, entitles the Special Courts in the Incorporated Eastern Territories temporarily to assume the character of a civilian court martial to a still greater extent.

Reference to articles 5 and 7—As, according to article 5, the execution of punishment is provided for to a certain extent on the basis of Polish verdicts, a reopening of the trial must be rendered possible for which German law is applicable. In addition there is a necessity to carry out anew legally closed Polish criminal proceedings in cases which have to be given special consideration. However, this should only occur in accordance with my order as set forth in article 5, section 2.

Reference to article 6—The regulation shall make it possible that dangerous habitual criminals and dangerous sexual criminals be rendered harmless by the subsequent order for protective custody or castration.

Reference to article 10—Thus, the actual German criminal law is also declared applicable to those crimes which were committed before the decree became effective in the Incorporated Eastern Territories. But in accordance with article 1, II, number 1, prosecution need not be enforced; also the public prosecutor only prosecutes if public interest requires subsequent punishment.

In consideration of the fact that the introduction of German law in the Incorporated Eastern Territories is imperative for reasons of legal security, may I request that the affair be expedited?

As deputy

[Signed]Dr. Schlegelberger

Enclosure c

Order regarding the Coming into Force of Legal Regulations in the Field of Administration of Justice in Penal Law within the Annexed Eastern Territories February 1940

By virtue of article 8 of the decree of the Fuehrer and Chancellor regarding the formation and administration of the Incorporated Eastern Territories of 8 October 1939 (Reich Law Gazette I, p. 2042) in the version of the decree of 2 November 1939 (Reich Law Gazette I, p. 2135) the following is decreed regarding the administration of justice in penal law within the annexed Incorporated Eastern Territories excepting the territory of the former Free City of Danzig:

Article 1

Coming into force of regulations of criminal law

It is ordered that within the sphere of administration of justice in criminal law the following laws and orders as well as the regulations decreed for the purpose of changing and supplementing them and the introductory, regulatory, and temporary regulations, in as much as it is not ruled otherwise:

1. The Criminal (Penal) Code for the German Reich.

2. The law against the criminal use of explosives which are dangerous to the public of 9 June 1884 (Reich Law Gazette, p. 61).

3. The law regarding the punishment of deprivation of electrical work of 9 April 1900 (Reich Law Gazette, p. 228).

4. The ordinance of the Reich President against unauthorized use of vehicles and bicycles of 20 October 1932 (Reich Law Gazette I, p. 496).

5. The law to ward off political illegal actions of 4 April 1933 (Reich Law Gazette I, p. 162).

6. The law to guarantee law and order of 13 October 1933 (Reich Law Gazette I, p. 723).

3200/4 Ia 2 312

I.P.O. 845

7. The law concerning insidious attacks against the State and the Party and for the protection of the Party uniform and insignia of 20 December 1934 (Reich Law Gazette I, p. 1269)[319].

8. The law against economic sabotage of 1 December 1936 (Reich Law Gazette I, p. 999)[320].

9. The law against highway robbery by means of car traps of 22 June 1938 (Reich Law Gazette I, p. 651).

10. The order on extraordinary measures concerning radio of 1 September 1939 (Reich Law Gazette I, p. 1683)[321].

11. Article 1 of the war economy decree of 4 September 1939 (Reich Law Gazette I, p. 1009)[322].

12. The order against public enemies of 5 September 1939 (Reich Law Gazette I, p. 1679)[323].

13. The Articles 1 and 4 of the ordinance for the protection against juvenile major criminals of 4 October 1939 (Reich Law Gazette I, p. 2000).

14. The order supplementing penal provisions for the protection of the Military Efficiency of the German people of 25 November 1939 (Reich Law Gazette I, p. 2319)[324].

15. The order against violent criminals of 5 December 1939 (Reich Law Gazette I, p. 2378)[325].

The Reich Code of Criminal Procedure, but for the present with the following provisos:

1. Article 152, paragraph 2 of the Reich Code of Criminal Procedure (compulsory prosecution) and the regulations of articles 172 to 177 of the Reich Code of Criminal Procedure (proceedings to enforce legal action) do not apply. The public prosecutor prosecutes acts which he deems necessary to be punished in the public interest.

2. The regulations of articles 374 to 394 and 395 to 406 of the Reich Code of Criminal Procedure (private prosecution, concurring action) only apply, if the injured person is a German national, racial German, national of the Protectorate Bohemia and Moravia or of a state which is not at war with Germany. The regulations of Reich law according to which an office of the state is authorized to join in the bringing of a civil action as coplaintiff remain unaffected.

3. Reopening [of proceedings] to the previous status [Wiedereinsetzung in den vorigen Stand] in case of failure of appearance at set term [Versaeumung einer Frist] (articles 44 to 47 of the Reich Code of Criminal Procedure) has to be granted even if the person failing to appear was prevented from appearing through no fault of his own.

III

1. The law concerning the indemnification of persons acquitted in the retrial of 20 May 1898 (Reich Law Gazette, p. 345).

2. The law concerning the compensation for innocently suffered pretrial detention of 14 July 1904 (Reich Law Gazette, p. 321).

3. The law concerning restricted information from the penal record and the canceling of penal entries of 9 April 1920 (Reich Law Gazette, p. 507).

4. The juvenile court law of 16 February 1923 (Reich Law Gazette I, p. 135).

5. The penal register order in the version of 17 February 1934 (Reich Law Gazette I, p. 140).

6. The law concerning interrogation of members of the National Socialist German Labor Party and its formations of 1 December 1936 (Reich Law Gazette I, p. 994).

7. The regulation concerning fees for witnesses and experts in the version of 21 December 1925 (Reich Law Gazette I, p. 471).

8. The law concerning court costs in the version of 5 July 1927 (Reich Law Gazette I, p. 152), insofar as it refers to penal matters.

9. The regulation concerning fees for attorneys at law in the version of 5 July 1927 (Reich Law Gazette I, p. 162), insofar as it refers to penal matters.

1. The order of the Reich government concerning the formation of Special Courts of 21 March 1933 (Reich Law Gazette I, p. 136).[326]

2. Parts I, III, and IV of the order concerning the extension of the competency of Special Courts of 20 November 1938 (Reich Law Gazette I, p. 1632), but for the present with the following measures:

Article 16, paragraph 2 of the order of the Reich government concerning the formation of Special Courts of 21 March 1933 (Reich Law Gazette I, p. 136) does not apply. The Special Court will decide upon a reopening of the proceedings.

Article 2

Temporary annulment of the existing law

The penal law which at present has been valid in the annexed Incorporated Eastern Territories, except the area of the hitherto Free City of Danzig and which opposes the new law or which regulates the same subject, is canceled with the coming into force of the new law.

Article 3

Application of the new law

Insofar as a regulation coming into force cannot be applied directly, it has to be applied according to the meaning.

If a regulation coming into force refers to a regulation not yet valid in the annexed Incorporated Eastern Territories, this reference has to be interpreted according to the law valid there.

Article 4

Application of the law hitherto valid

The general regulations of the Criminal (Penal) Code for the German Reich have to be applied directly or according to meaning to criminal offenses which have to be judged according to the law valid up to now.

Insofar as a regulation of the law hitherto valid remains in force for the time being refers to a regulation which is going to beabolished, the corresponding regulation of the new law has to take its place.

Article 5

Reopening of the procedure

The reopening of the procedure against valid judgments of foreign courts is determined by the law coming into force.

The Reich Minister of Justice can order that procedures which have been finished by a valid judgment of foreign courts are to be reopened.

Article 6

Supplemental order of security and improvement measures

Part 5, Nos. 2 and 3 of the law against dangerous habitual criminals and concerning security and improvement measures of 24 November 1933 (Reich Law Gazette I, p. 995) is valid, with the proviso that * * * takes the place of 1 January 1934 as key date.

Article 7

Execution of sentence[Strafvollstreckung]

Punishments or other measures which have been passed as valid by a foreign court are only being executed if in each case the public prosecutor orders the execution. It is he who orders the way and the amount of the punishment or any other measure to be executed.

Article 8

Execution of sentence[Strafvollzug]

The execution of imprisonment sentences and the security and improvement measures concerning deprivation of liberty is determined by the principles of execution of sentence under the Reich law (part I of the order concerning the execution of terms of detention and security and improvement measures, which are connected with confinement of 14 May 1934, Reich Law Gazette I, p. 383).

Article 9

Fines

Legally passed fines are payed over to the Reich Treasury.

Article 10

Validity

The penal laws defined in article 1 under I and the articles 1 to15 of the Juvenile court law of 16 February 1923 (Reich Law Gazette I, p. 135) apply also to criminal offenses that have been committed in the annexed Incorporated Eastern Territories before the coming into force of the order with the exception of the area of the hitherto Free City of Danzig.

Article 11

Authorization

The Reich Minister of Justice is authorized to issue the regulations and temporary regulations necessary for the carrying-out and completion of this order. He may administratively adjudicate upon cases of doubt which arise from the introduction of the new law.

Article 12

Effective date of the order

This order comes into force on...................., 1940.

Berlin,...................., February 1940

The Reich Minister of the InteriorThe Reich Minister of Justice

Berlin, 14 February 1940

Reference: Reich Chancellery 2573 B

Subject: Introduction of the German civil and commercial law in the Incorporated Eastern Territories

1. Comment—The Minister of Justice transmits a letter addressed to the Supreme Reich Agencies containing two drafts of the orders concerning the introduction of the German civil and commercial law in the Incorporated Eastern Territories. He asks for the submission of wishes for possible alterations. The drafts provide for the introduction of the entire civil and commercial law in the Incorporated Eastern Territories, excluding only the tenant protection law, the hereditary farm law, and the law for the clearance of debts and reduction of interest. Fundamentally, the German law as applicable in the Reich proper must be introduced; it will, however, be adapted by special supplementary regulations for the districts formerly under the jurisdiction of Austrian law.

The Minister of Justice justifies this by stating that the judgesde factoalready apply the German law, since they are in practice unable to interpret the Polish law. Although it was suggestedduring a conference of the under secretaries in the autumn of this year that more discretion should be used when introducing the German law for the present, the competent Reich governors now deem the introduction necessary; Reich Governor Greiser expressed this also in writing, as may be seen from the letter from the Minister of Justice, dated 3 February 1940, a copy of which is enclosed. The Minister of Justice asks that the introduction be effected at an early date.

No comments are necessary.

2. Duly submitted to the Reich Minister.

[Initial] L [Lammers] 16 February

3. To be filed.

[Initial]Kl[Klemm] 14 February

[Initial] F [Ficker]

February 13

TRANSLATION OF DOCUMENT NG-1612PROSECUTION EXHIBIT 519

DECREE OF 13 JUNE 1940 CONCERNING ORGANIZATION OF COURTS IN THE INCORPORATED EASTERN TERRITORIES

1940 REICHSGESETZBLATT, PART I, PAGE 907

By virtue of the decree of the Fuehrer and Reich Chancellor concerning organization and administration of the eastern territories of 8 October 1939 (Reichsgesetzblatt I, p. 2042), the following is hereby ordered:

Article 1

The courts in the Incorporated Eastern Territories shall render judgments in the name of the German people.

Article 2

The following statutes shall take effect in the incorporated territories:

1. The German law on the organization of courts.

2. The law on the jurisdiction of courts, with respect to changes in the division of courts, of 6 December 1933 (Reichsgesetzblatt I, p. 1037).

3. The decree concerning a uniform organization of courts, of 20 March 1935 (Reichsgesetzblatt I, p. 403).

4. The law concerning the distribution of functions in the courts of 24 November 1937 (Reichsgesetzblatt I, p. 1286).

5. The decree concerning qualifications for the offices of judge, public prosecutor, notary public, and attorney, of 4 January 1939 (Reichsgesetzblatt I, p. 5).

6. Decree concerning preparation for the offices of judge and public prosecutor, of 16 May 1939 (Reichsgesetzblatt I, p. 917).

7. Decree concerning measures in the organization of courts and the administration of justice, of 1 September 1939 (Reichsgesetzblatt I, p. 1658), and the implementing orders issued hitherto on 8 September and 4 October 1939 (Reichsgesetzblatt I, pp. 1703, 1944).

8. Decree concerning simplification of the legal examinations of 2 September 1939 (Reichsgesetzblatt I, p. 1606).

Article 3

This decree shall take effect as of 15 June 1940.

Berlin, 13 June 1940

Dr. Guertner

Reich Minister of Justice

Frick

Reich Minister of the Interior

TRANSLATION OF SCHLEGELBERGER DOCUMENT 60SCHLEGELBERGER DEFENSE EXHIBIT 26

DECREE OF 6 JUNE 1940 ON THE INTRODUCTION OF GERMAN PENAL LAW IN THE INCORPORATED EASTERN TERRITORIES[327]

1940 REICHSGESETZBLATT, PART I, PAGE 844

On the basis of articles 8 and 12 of the decree of the Fuehrer and Reich Chancellor on the organization and administration of the Incorporated Eastern Territories of 8 October 1939 (Reichsgesetzblatt I, p. 2042), the following is decreed on the administration of criminal law in the Incorporated Eastern Territories:[328]

*******

Article II

Special regulations with regard to criminal law for the Incorporated Eastern Territories

Section 8

(1) Anyone committing an act of violence against a member of the German armed forces or their auxiliaries, the German police including their auxiliary forces, the Reich labor service, or a German authority, or office, or organization of the NSDAP will be punished with the death penalty.

(2) In less serious cases, particularly when the perpetrator has allowed himself to be carried away by excusable violent excitement, a sentence of hard labor for life or for a certain period of time, or imprisonment is to be imposed.

Section 9

Anyone who willfully damages the equipment of German authorities, or things which further the work of the German authorities or serve the public welfare will be punished with the death penalty, and in less serious cases with hard labor for life or for a certain period of time, or with imprisonment.

Section 10

Anyone who instigates or incites disobedience of a decree or order issued by German authorities will be punished with the death penalty, and in less serious cases with hard labor for life or for a certain period of time or imprisonment.

Section 11

Anyone who commits an act of violence against a German on account of his being a member of the German ethnic community will be punished with the death penalty.

Section 12

Whoever willfully commits arson (arts. 306 to 308 of the Reich Penal Code) will be punished with the death penalty. [Page 846]

Section 13

Whoever conspires to commit a crime punishable in accordance with sections 8 to 12 [herein] or enters into serious negotiation thereon, and offers to commit such a crime or accepts such an offer will be punished with the death penalty, and/or in less serious cases with hard labor for life or for a certain period of time or imprisonment.

Section 14

(1) Anyone who receives authentic information of the project or carrying out of a crime punishable in accordance with sections 8 to 12 at a time when the carrying out or the success can still be averted and omits to give the authorities or person threatened due warning will be punished with the death penalty, and/or in less serious cases with hard labor for life or for a certain period of time or imprisonment.

(2) If the person upon whom it is incumbent to give warning, and who omits to do so is a relative of the perpetrator punishment can be waived if he has earnestly tried to restrain his relative from committing the act or to prevent its success.

Section 15

(1) Anyone who has failed to comply with the surrender obligation as stipulated in the decree of the Commander in Chief of the Army of 12 September 1939 (Ordinance Gazette for the Occupied Territories in Poland, p. 8) or is otherwise caught in unauthorized possession of a firearm, a hand grenade, or explosives will be punished with the death penalty; the same applies for the unauthorized possession of ammunition or other implement of war if by their nature or quantity public security is endangered.

(2) A sentence of hard labor or imprisonment will be passed if the perpetrator subsequently makes the delivery voluntarily, before the case has been brought before the court or an inquiry against him has been instituted. In this case punishment may even be waived.

(3) The person who has authentic cognizance of illegal possession of weapons, ammunition, explosives, or implements of war and fails to inform the official authorities accordingly without delay will receive capital punishment, in less severe cases hard labor for life or for a certain period or a term of imprisonment.

Section 16

(1) The provisions of sections 8 to 15 are not applicable to—

1. German nationals, ethnic Germans and nationals of the Protectorate of Bohemia and Moravia.

2. Nationals of states which are not participating in the present war against Germany.

(2) The Reich governors and provincial presidents are authorized to exempt from the regulations of sections 8 to 15 other ethnic groups too.

*******

Berlin, 6 June 1940

Reich Minister of the Interior

Frick

Reich Minister of Justice

Dr. Guertner

TRANSLATION OF DOCUMENT NG-144PROSECUTION EXHIBIT 199

LETTER FROM DEFENDANT SCHLEGELBERGER TO LAMMERS, 17 APRIL 1941, CONCERNING “PENAL LAWS FOR POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES”

[Handwritten] submitted (last time)

Reich Chancellery

4.79 blb BBT 740 to 419/140

[Stamp] Reich Chancellery 5850 B 17 Apr. 1941

One Enclosure

The Reich Minister of Justice

9170 Eastern Territories 2-II a 2 996/41

Berlin W 8, 17 April 1941Wilhelmstr. 65Telephone 11 00 44Long distance 11 65 16

To: The Reich Minister and Chief of the Reich Chancellery

Subject: Penal laws against Poles and Jews in the Incorporated Eastern Territories

[Handwritten] see statement of 22 April

Reply to letter of 28 November 1940

Reich Chancellery 17 428 B

1 Enclosure

I worked on the premise that special conditions in the Incorporated Eastern Territories also require special measures for the administration of the penal laws against Poles and Jews. As soon as the decree issued on 5 September 1939 by the Commander in Chief of the Army had introduced the Special Courts in the Incorporated Eastern Territories, I tried to make these courts, with their particularly prompt and energetic procedure, centers for combating all Polish and Jewish criminals. That I succeeded is shown by the very impressive numbers of cases dealt with by the Special Courts during the first 10 months of their activity in the Incorporated Eastern Territories. The Special Court inBromberg, for instance, has sentenced 201 defendants to death, 11 to penal servitude for life, and 93 to terms of penal servitude amounting to 912 years in all, thus an average 10 years’ penal servitude for each individual. Only crimes of lesser significance were indicted at the local courts. On the other hand, the criminal courts were eliminated as far as possible as an appeal to the Reich Supreme Court against their judgment is permitted, and I wanted to prevent courts which were not entirely familiar with the special conditions in the eastern territories—even though it be the highest court in Germany—from giving a decision in these matters.

The aim of creating a special system of law [Sonderrecht] for Poles and Jews of the eastern territories was systematically pursued by the decree of 6 June 1940,[329]which formally introduced the German penal law applied in the eastern territories from the very beginning. In the sphere of the code of criminal procedure, compulsory prosecution no longer exists; the public prosecutor prosecutes only such acts which he thinks it necessary to punish in the public interest. The procedure of compulsory prosecution (arts. 172, et seq., of the Code of Criminal Procedure) was rescinded as it seems intolerable that Poles and Jews should in this way compel the German prosecutor to issue an indictment. Poles and Jews were also prohibited from raising private actions and accessory actions.

In article II of the introductory decree [of 6 June 1940], special cases for action [Sondertatbestaende] were annexed to the special system of law in the sphere of legal proceedings—cases which had been agreed upon with the Reich Minister of the Interior because they had become necessary. It was intended from the beginning that such special cases for action should be increased as soon as necessity arose. The decree for the execution and completion of the introductory decree mentioned in the letter from the Fuehrer’s deputy was meant to meet the requirements which had become known in the meantime; whereas the decrees mentioned also in said letter concerning the introduction of the right of extradition, and of the law concerning the use of weapons by persons entitled to the protection of forestry and game laws, are only remotely connected with the criminality of Poles and Jews, and are intended exclusively to develop the general coordination of law in the eastern territories. I shall try to bring about an agreement with the Fuehrer’s deputy in regard to both the last mentioned decrees, as well as the decree for the execution of the law for the cancellation of sentences, and the decree concerning criminal records.

On being informed of the Fuehrer’s intention to discriminate basically in the sphere of penal law between the Poles (and probably the Jews as well) and the Germans, I prepared—after preliminary discussions with the presidents of the district courts of appeal and the attorneys general of the Incorporated Eastern Territories—the attached draft[330]concerning the administration of the penal laws against Poles and Jews in the Incorporated Eastern Territories and in the territory of the former Free City of Danzig.

This draft amounts to a special system of law both in the sphere of actual penal law and that of criminal procedure. In this connection, the suggestions made by the Fuehrer’s deputy were taken into consideration to a great extent. Paragraph (3) of No. 1 contains a statement of facts in general terms, through which penal proceedings can be taken in future against any Pole or Jew belonging to the eastern territories who is guilty of punishable activities directed against the German race, and every kind of punishment is provided. This ordinance is supplemented by No. 1, paragraph (2), which is already contained in the preliminary ordinance, and which threatens the death sentence in cases of violence committed against a German by reason of his belonging to the German ethnic group. Furthermore, the cases in No. 1, paragraph (4) which are also contained in the preliminary ordinance, are only complements, which would perhaps no longer have been necessary in view of the new general statement of facts, but which I have included in order not to arouse a false impression that the scope of the acts liable to punishment according to this draft is more restricted than in the existing legislation. Finally, No. 2 makes it clear that a Pole will in any case also be punished for such acts as are punishable if committed by a German. Furthermore, the ordinance admits a wider application of the law in a manner appropriate to the requirements of the eastern territories. (Art. 2, Penal Code.)

I have already been in agreement with the opinion held by the Fuehrer’s deputy, that a Pole is less sensitive to the imposition of an ordinary prison sentence. Therefore, I had taken administrative measures to insure that Poles and Jews be separated from other prisoners and that their imprisonment be rendered more severe. No. 3 goes still further and substitutes for the terms of imprisonment and hard labor prescribed by Reich law other prison sentences of a new kind, viz, the prison camp and the more rigorous prison camp. For these new kinds of punishment, the prisoners are to be lodged in camps outside of prisons and are to be employed there on hard and very hard labor. Thereare also administrative measures which provide for special disciplinary punishment (imprisonment in an unlighted cell, transfer from a prison camp to a more rigorous prison camp, etc.).

The new kinds of punishment in No. 3 apply to all offenses committed by Poles and Jews, thus also to cases when the criminal commits a crime specified by the Penal Code. On the other hand, No. 3, paragraph (3), insures that the minimum penalty prescribed by German penal law and a mandatory penalty may be lessened if the crime was directed entirely against the criminal’s own nation.

The part concerned with procedure contains first the special regulations of the preliminary decree existing up to now. In addition, Poles and Jews sentenced by a German court are not to be allowed in the future any legal remedy against the judgment; neither will he have a right of appeal, or be allowed to ask for the case to be reopened. All sentences will take effect immediately. In future, Poles and Jews will also no longer be allowed to object to German judges on the grounds of prejudice; nor will they be able to take an oath. Coercive measures against them are permissible under easier conditions. Furthermore, an important point is that according to No. 10, paragraph (2), the locally competent court of appeal decides concerning a nullity plea, which insures that no court outside the eastern territories has anything to do with proceedings against Poles and Jews. Further, No. 12 gives the court and the prosecution an independent position, meeting all requirements, with regard to the law concerning the constitution of the courts and the Reich law of criminal procedure.

No. 13 makes the factual special legislation against Poles and Jews and the elimination of compulsory prosecution apply also in cases where the Polish or Jewish criminal does, in fact, reside in the eastern territories, but the crime has been committed in another part of greater Germany.

In my opinion, a special penal law against Poles and Jews in such a form would neither restrict the liberty of action of German offices and officials, nor allow Poles and Jews to profit from its introduction insofar as they would be able then to lodge unwarranted actions and complaints against German officials. Factual penal law provides for such an increase in severity in the penalties threatened that these will act as the strongest possible deterrent. Any hole in the law through which a Polish or Jewish criminal might slip is also closed. In the sphere of criminal procedure, the draft shows clearly the difference in the political status of Germans on one side and Poles and Jews on the other.

The introduction of corporal punishment, as discussed by the Fuehrer’s deputy, has not been included in the draft, either as a criminal sentence or a disciplinary measure. I cannot agree to this form of punishment as in my judgment it would not correspond to the level of civilization of the German people.

Criminal proceedings based on this draft will accordingly be characterized by the greatest possible speed, together with immediate execution of the sentence, and will therefore in no way be inferior to civilian court martial proceedings. The possibility of applying the most severe penalties in every appropriate case will enable the penal law administration to cooperate energetically in the realization of the Fuehrer’s political aims in the eastern territories.

I intend to have the draft submitted to the Ministerial Council for the Defense of the Reich for approval. I should like, however, to discuss the matter verbally with you prior to that, and to request you if possible to get the Fuehrer’s decision as to whether he agrees with the essentials of the intended regulations.

Acting Minister of Justice

[Signed]Schlegelberger[331]

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