V. EVIDENCE CONCERNING PRINCIPAL ISSUES IN THE CASE (continued 8)
Reading edition
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]
TRANSLATION OF DOCUMENT NG-331
PROSECUTION EXHIBIT 343
DRAFT OF A PROPOSED ORDINANCE CONCERNING PENAL LAW FOR POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES, PREPARED BY DEFENDANT SCHLEGELBERGER AND SUBMITTED TO THE CHIEF OF THE REICH CHANCELLERY ON 17 APRIL 1941[332]
Ordinance concerning the administration of justice regarding Poles and Jews in the Incorporated Eastern Territories Of....................1941
The Ministerial Council for Reich Defense decrees the following law:
1. Substantive Penal Law
I
(1) Poles and Jews living in the Incorporated Eastern Territories have to conduct themselves according to the German laws and to the instructions issued for them by the German authorities. They have to refrain from every act detrimental to the sovereignty of the German Reich or to the prestige of the German people.
(2) They will be punished by death if they commit an act of violence against a German on account of his membership in the German ethnic community.
(3) They will be punished by death, in less severe cases with an imprisonment, if they manifest an attitude hostile to Germany by hateful or inflammatory activity. Especially, if they talk in a way which is inimical to Germany or if they tear down or damage public announcements posted by German authorities or offices. Also, if they lower or damage the prestige or the welfare of the German Reich or the German people by their conduct in general.
(4) They will be punished by death, in less severe cases with imprisonment—
1. If they commit an act of violence against any member of the German armed forces or its auxiliaries, the German police including its auxiliaries, the Reich labor service, a German authority or office or an organization of the NSDAP;
2. If they deliberately cause damage to installations of the German authorities, or offices, or to things which are used in the course of their work or are established for the public interest;
3. If they encourage or stimulate disobedience against a decree or ordinance issued by the German authorities;
4. If they enter a conspiracy for committing any action punishable according to paragraphs 2, 3, and 4 No. 1–3. Also if they enter into earnest conferences about such actions or declare themselves willing to commit such or if they accept any such offer. Or, if they get reliable information about such an action or plan at a time when danger still can be averted and fail to report it in time to the authorities or to the threatened person;
5. If they are found in illegal possession of a firearm, of a hand grenade, of a weapon for stabbing or hitting, of explosives, munitions, or other war equipment. Also, if they receive reliable information about a Pole or Jew being in illegal possession of such things and fail to report this fact without delay to the authorities.
II
Poles and Jews will also be punished if they violate the German penal laws or if they commit an action which deserves punishment according to the basic principles of German penal law, in accordance with the requirements of national existence in the Incorporated Eastern Territories.
III
(1) Punishment will be meted out to Poles and Jews in the form of prison terms, fines, or confiscation of property. Prison terms will be meted out in the form of prison camp terms ranging from 3 months up to 10 years. In serious cases prison terms will consist of aggravated prison camp terms ranging from 2 to 15 years.
(2) The death penalty will be imposed whenever the law threatens such punishment. Also in cases where the law does not provide for the death sentence, this penalty will be imposed, if the committed action testifies to an exceptionally vicious character or if for other reasons the crime is a very serious one. In such cases the death penalty will be permissible also in the case of juvenile criminals.
(3) A lesser punishment than the minimum term of a penalty as prescribed by the German penal code and any degree of punishment mandatorily prescribed are not to be imposed except in cases where the crime is directed exclusively against the ethnic group of the perpetrator himself.
(4) Any fine which cannot be collected will be replaced by a prison camp term ranging from 1 week to 1 year.
2. Penal Procedure
IV
The public prosecutor will prosecute crimes committed by Poles and Jews, the punishment of which he thinks necessary in the public interest.
V
(1) Poles and Jews are to be judged by the Special Court or by the district judge.
(2) The public prosecutor is authorized to bring about indictment in all matters before the Special Court. He may file a suit before the district judge if no severer punishment than 5 years prison camp or 3 years aggravated prison camp is to be expected.
(3) The competency of the People’s Court remains untouched.
VI
(1) Each sentence has to be executed immediately. The public prosecutor, however, may appeal to the Oberlandesgericht from sentences passed by the district judge. The period set for motions in arrest of judgment is 2 weeks.
(2) Also, the public prosecutor alone is entitled to the right of complaining. Complaints are decided upon by the Oberlandesgericht.
VII
Poles and Jews cannot refuse German judges as being prejudiced.
VIII
(1) Arrest and preliminary custody are always permissible if there is a strong suspicion of the accused having committed the crime.
(2) In the course of the preliminary proceedings the public prosecutor also may order arrest and the use of other permissible means of coercion.
IX
Poles and Jews serving as witnesses do not take the oath during proceedings. To all untrue, unsworn evidence presented in court regulations regarding perjury and unwittingly false oath are to be applied, according to their sense, to false depositions in court not made under oath.
X
(1) The reopening of the proceedings can only be ordered by the public prosecutor. Request for reopening of the proceedings contrary to a sentence passed by the Special Court are decided upon by the latter.
(2) The nullity plea is up to the public prosecutor, it is decided upon by the Oberlandesgericht.
XI
Poles and Jews neither can file private suits nor bring about action as coplaintiffs.
XII
The proceedings are conducted by court and public prosecutor on the basis of the German law for penal procedure in full accordance with their sense of duty. They may deviate from the regulations given in the law about the constitution of courts and in the legal principles for Reich penal proceedings, in all cases where it seems practical for the carrying through of the proceedings rapidly and energetically.
3. Civilian Court Martial Proceedings
XIII
As far as the Incorporated Eastern Territories are concerned, the Reichsstatthalter (Oberpraesident), with the consent of the Reich Minister of the Interior and the Reich Minister of Justice, for the area under his jurisdiction or single parts of it, may order that Poles and Jews be sentenced, until further notice, by a civilian court martial. This will take place in cases of serious violence committed against Germans as well as on account of other crimes which seriously endanger the German construction work.
As sentence, sentence of death will be imposed by the civilian court martial. The civilian court martial may also refrain from punishment and may instead pronounce transfer to the Secret State Police.
All details regarding the members of the civilian courts martial and their procedure will be settled by the Reichsstatthalter (Oberpraesident), with the consent of the Reich Minister of the Interior.
4. Extent of the Area of Jurisdiction
XIV
(1) The regulations I to IV of this ordinance will equally affect Poles and Jews, who had their place of residence, or permanent abode, within the territory of the former Polish state on 1 September 1939, and who have committed the crime within any other territory of the German Reich outside the Incorporated Eastern Territories.
(2) In addition, the court of the place of residence or abode at the respective time, is locally competent. For that court the regulations, given under V-XII, also apply.
(3) Paragraphs 1 and 2 are not applicable to crimes which are sentenced by courts of the Government General.
5. Concluding Regulations
XV
Poles in the sense of the ordinance are all proteges and stateless persons who belong to the Polish racial community.
XVI
Article II of the ordinance of 6 June 1940,[333] concerning the introduction of German penal law into the Incorporated Eastern Territories, (Reich Law Gazette I, p. 844) does not apply any more to Poles and Jews.
XVII
The Reich Minister of Justice, in full accord with the Reich Minister of the Interior, is authorized to issue the legal and administrative instructions necessary for the carrying through and supplementation of this ordinance. Dubious questions, regarding the administrative procedure, are to be decided by him.
XVIII
This decree comes into force on the fourteenth day after its publication.
Berlin, the....................1941
The Chairman of the Ministerial Council for the Defense of the Reich
The Plenipotentiary General for the Administration of the Reich
The Reich Minister and Chief of the Reich Chancellery
TRANSLATION OF DOCUMENT NG-130
PROSECUTION EXHIBIT 200
FILE NOTE OF THE REICH CHANCELLERY, 22 APRIL 1941, CONCERNING SCHLEGELBERGER’S DRAFT OF A PROPOSED DECREE ON PENAL LAW FOR POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES
Berlin, 22 April 1941
Reich Chancellery 5850 B
Subject: Penal Law for Poles and Jews in the Incorporated Eastern Territories
1. Note—The Minister of Justice transmits a draft of a decree of the ministerial council on criminal law applicable to Poles and Jews in the Incorporated Eastern Territories and in the city of Danzig.[334] Through the decree of 6 June 1940 the German criminal law has been introduced in the eastern territories to its fullest extent. On 20 November 1940 the Fuehrer’s deputy, in a detailed statement, took the position that this was a mistake, in as much as the Poles would thereby be placed under the German criminal law. The Fuehrer’s deputy demanded that a special criminal law and a special criminal procedure be provided for Poland. The particulars are contained in the note of 26 November 1940.
The proposals, contained in the draft of the decree of the Minister of Justice and explained in the letter accompanying it, are far-reaching in compliance with the wishes of the Fuehrer’s deputy.[335] The draft establishes a draconic special criminal law for Poles and Jews, giving a wide range for the interpretations of the facts of the case, with the death penalty applicable throughout. The conditions of imprisonment are also much more severe than provided for in the German criminal law. (Instead of imprisonment in jail or in penitentiary—prison camps and special prison camps.) Beside this special criminal law, in a subsidiary way, the German criminal law is applicable. (II.) Provisions of criminal law which might be used to obstruct the procedure have been eliminated (the opportunity of the defendant for an appeal, compulsory indictment, the challenge of a judge, compare also art. XII, S. 2). The Minister of Justice differs only in two points from the suggestions of the Fuehrer’s deputy—
a. The Fuehrer’s deputy considered it more appropriate to authorize the Reich governors [Reichsstatthalter] (and therefore also the two provincial presidents) to introduce the special criminal law, whereas the Minister of Justice provides for its introduction by a Reich decree.
b. The Fuehrer’s deputy considers the introduction of corporal punishment—the Minister of Justice declines to do so. The Minister of Justice intends to introduce this draft and have it passed by the ministerial council. Under Secretary Schlegelberger desires to discuss this matter first with the Reich Minister and would be pleased if the Reich Minister would secure the Fuehrer’s decision concerning the principal features of the intended regulation.
[Illegible handwriting]
[Initial] F [Ficker]
[Stamps] resubmitted office 3/5
2. Submitted to the Reich Minister.
[Initial] L [Lammers]
25 April
This matter should be first discussed with Under Secretary Schlegelberger, [Handwritten] who would be ready to come to [Hitler’s] headquarters. On information of Ministerial Counsellor Schaefer, (Reich Ministry of Justice), Under Secretary Schlegelberger will at this meeting also have some information on the Governor General’s attitude.[336]
[Initial] L [Lammers] 3 May
[Stamp] Resubmitted
Office 5/5
[Initial] L [Lammers] 12 May
[Stamp] Resubmitted
Office 12/5
1. A report to the Fuehrer is not to be considered. First of all a discussion with Under Secretary Schlegelberger is necessary.
[Initial] L [Lammers] 13 May
[Stamp] Resubmitted
Office 20/5/41
[Initial] L. [Lammers] 22 May
In the meantime an opinion of the Reich Leader H [Himmler] has been received.
TRANSLATION OF DOCUMENT NG-136
PROSECUTION EXHIBIT 345
MEMORANDUMS OF THE REICH CHANCELLERY, 27 MAY 1941, CONCERNING CRIMINAL LAW TO BE INSTITUTED IN THE INCORPORATED EASTERN TERRITORIES, INCLUDING COPIES OF LETTERS TO DEFENDANT SCHLEGELBERGER, BORMANN, AND HIMMLER
[Handwritten] see Rk. 8621 B.
To Rk. 7592 B, 7760 B
Fuehrer Headquarters, 27 May 1941
After the report to the Reich Minister
Subject: Civilian court martial and right of pardon in the Warthegau. Administration of criminal law in the Incorporated Eastern Territories
1. Remarks:
[Handwritten marginal note.] To Rk 7592 B:
It may be pointed out in completion that a ruling in regard to the Warthegau will bring about not only a corresponding ruling for the Gau Danzig-West Prussian but also for the new territories of East Prussia and Silesia. Thus, for example, in the last named territories the right of pardon for capital crimes also must be transferred to the Provincial president.
[Handwritten marginal notes.]
Rk 7760 B1b
blue[337]
In the meantime a letter from the Reich Leader SS (signed Heydrich) on this subject has been received here. The Reich Leader SS agrees to the special penal code for Poles in material matters—as provided for in the draft of the decrees submitted by the Minister of Justice—but in addition he asks for civilian court martial under police jurisdiction and requests that this be presented to the Fuehrer when the Reich Minister makes his intended report.
[Handwritten marginal notes.]
pink
yellow
The introduction of civilian courts martial in the Incorporated Eastern Territories is an old desire of the Reich Leader SS and was proposed in the draft of a decree of the ministerial council of the General Plenipotentiary for the Reich administration, dated 21 February 1940—compare Rk 3215 B-40—; see note of 27 February 1940. The introduction was rejected at the time on the basis of objections made by the Reich Marshal to civilian courts martial—compare Rk. 5026 B of 21 March 1940.
[Handwritten marginal note.]
Justice 3
(Copy number 2) (copy number 2)
(to Rk 7411 h40 letter 13) (Justice 12)
pale violet
The Fuehrer’s decision corresponds to the desire of the Reich Leader SS as far as the Warthegau is concerned in the meantime. It is not considered advisable to report this to the Reich Leader SS unless the minister in charge has been notified of the Fuehrer’s decision. The Reich Leader SS further requests a copy of the comments of the Minister of Justice dated 17 April 1941—Rk. 5850 B.[338] He should be referred to the Minister of Justice concerning this request.
[Handwritten marginal note.] pale violet
[Initial] F [Ficker]
The Reich Minister and Chief of the Reich Chancellery
Fuehrer Headquarters, 27 May 1941
Rk. 7760B
[Handwritten notes]
see Rk 8621 B
No. 934 29/5
2/4 written Ho
2/3 read Ho Hi/
4/ forwarded Ho 28/5
2/3 forward 29.5. Km
to 2 m. 1 photo copy of Rk 7760 B
to 3 m. 1 copy of 2 and
1 photo copy of Rk 7760 B
Urgent!
2. To the Reich Minister of Justice.
(Copy for 2.)
Subject: Administration of criminal law in the Incorporated Eastern Territories
In reference to your letter of 17 April 1941 —9170 Eastern Territory 2-II a-2-996/41
[Handwritten marginal note.] pale violet
The Gauleiter and Reichsstatthalter Greiser reported to the Fuehrer that an increasing number of acts of sabotage were committed in his Gau by Poles. In the Landkreis Lódz it even happened a few days ago that while the Reichsstatthalter was speaking in an old Swabian settlement, a German policeman was stoned to death in a neighboring village. In this case the Reichsstatthalter, according to his report to the Fuehrer, gave orders that not only the culprits but 12 hostages as well should be executed on the spot and under the eyes of the entire village population, who were assembled at the spot. In view of these sabotage acts the Reichsstatthalter asked the Fuehrer for authority to reestablish civilian courts martial. He proposed to appoint the local representative of authority as president, with police officer and a security police leader as members of the court. No sentences other than death or concentration camp are to be given by these civilian courts martial. There must be no possibility of appeal. The Fuehrer decided that Gauleiter and Reichsstatthalter Greiser be given authority as requested to set up the civilian courts martial which he had proposed.
The Reichsstatthalter further reported to the Fuehrer that he had asked you to delegate to him the right of pardon in regard to Poles punished by the courts. The Fuehrer has decided that this desire of the Reichsstatthalter is also to be complied with.
I beg to inform you of these decisions taken by the Fuehrer and to ask you to take the necessary implementing steps without delay. I leave it to you to consider whether it is advisable to include this ruling on the basis of the above-mentioned decisions of the Fuehrer, in whole or in part, in the draft of the decree which you have prepared concerning the administration of criminal law against the Poles and Jews in the Incorporated Eastern Territories and in the territory of the former Free City of Danzig. I ask you to report to the Fuehrer, for my attention, on the measure you have taken. [Handwritten] as soon as possible
A photo copy of a letter received here from the Reich Leader SS and Chief of the German Police in the Ministry of the Interior is enclosed for your information.[339] May I leave it to your discretion to send to the Reich Leader SS and Chief of the German Police a copy of your comments, as requested in the last sentence of the letter.
[In margin] Bzf. Photo copy
of Rk. 7760 B
(Name of the Reich Minister)
3. To Reichsleiter Martin Bormann, at present Obersalzberg.
Subject: Administration of criminal law in the Incorporated Eastern Territories
In answer to the letter of 24 May 1941—Bo/Si—.
Esteemed Mr. Bormann!
For your information I beg to submit herewith a copy of my letter of today’s date to the Reich Minister of Justice, concerning the establishment of civilian courts martial and the transference of the right of appeal in the Reichsgau Wartheland.
Bzf. copy of
2.
also photo of
Rk 7760 B
Heil Hitler!
Respectfully
(Name of the Reich Minister)
4. To the Reich Leader SS and Chief of the German Police,
Reich Ministry of the Interior,
Berlin SW 11
Prinz-Albrecht-Strasse 8
Subject: Administration of criminal law in the Incorporated Eastern Territories
Reference: Letter of 16 May 1941-S-II A 2 (new) No. 127/41-173-1
I have forwarded a photo copy of your letter of 16 May 1941 to the Reich Minister of Justice for his information. I have asked him to forward to you a copy of his comments as requested in the last sentence of your letter.
(name of the Reich Minister)
5. After sending it off
Min. Dir. Kritzinger for information.
6. Follow up after 1 month.
[Initial] L [Lammers]
(name of the Reich Minister)
[Initial] F [Ficker]
27 May
PARTIAL TRANSLATION OF DOCUMENT NG-1615
PROSECUTION EXHIBIT 521
DECREE OF 31 MAY 1941 CONCERNING THE INTRODUCTION OF THE NUERNBERG RACIAL LAWS IN THE INCORPORATED EASTERN TERRITORIES
1941 REICHSGESETZBLATT, PART I, PAGE 297
By virtue of article 8 of the Decree of the Fuehrer and Reich Chancellor, of 8 October 1939 (Reichsgesetzblatt I, p. 2042), it is hereby ordered:
Article 1
In the Incorporated Eastern Territories the following are applicable:
(1) The Reich Citizenship Law of 15 September 1935[340] (Reichsgesetzblatt I, p. 1146).
(2) Article 2, paragraph 2; article 4, paragraphs 1 and 3; article 5; article 6, paragraph 1; and article 7 of the first amendment of the Reich Citizenship Law of 14 November 1935 (Reichsgesetzblatt I, p. 1333).
*******
Article 3
In the Incorporated Eastern Territories the Law for the Protection of German Blood and German Honor of 15 September 1935[341] (Reichsgesetzblatt I, p. 1146), and the first decree concerning the execution of this law of 14 November 1935 (Reichsgesetzblatt I, p. 1334), as well as the decree supplementing the first executive decree for the Law for the Protection of German Blood, of 16 February 1940 (Reichsgesetzblatt I, p. 394) shall be applicable.
Article 4
(1) This decree shall take effect 1 week after promulgation.
(2) Part I, article 7 of the Decree concerning the introduction of the German Criminal Law in the Incorporated Eastern Territories, of 6 June 1940[342] (Reichsgesetzblatt I, p. 844), shall be applied to violations of the provisions for the Protection of German Blood and German Honor.
Berlin, 31 May 1941
The Reich Minister of the Interior
As deputy: Dr. Stuckart[343]
The Chief of the Party Chancellery
M. Bormann
The Acting Reich Minister of Justice
Dr. Schlegelberger[344]
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
SECOND EXECUTIVE DECREE, 31 MAY 1941, FOR THE EXECUTION OF THE LAW FOR THE PROTECTION OF GERMAN BLOOD AND HONOR
1941 REICHSGESETZBLATT, PART I, PAGE 297
By virtue of article 6 of the Law for the Protection of German Blood and German Honor of 15 September 1935 (Reichsgesetzblatt I, 1935, p. 1146), the following is hereby decreed:
Article 1
The protection afforded to German blood or to blood racially related to German blood by the Law for the Protection of German Blood and German Honor of 15 September 1935 (Reichsgesetzblatt I, p. 1146), and its first executive decree of 14 November 1935 (Reichsgesetzblatt I, p. 1334), as amended by the supplementing decree of 16 February 1940 (Reichsgesetzblatt I, p. 394), shall not extend to former Polish nationals, unless they have acquired German nationality or have been entered in the list of German nationals [deutsche Volksliste] by virtue of the decree of the Fuehrer and Reich Chancellor concerning the organization and administration of the eastern territories of 8 October 1939 (Reichsgesetzblatt I, p. 2042).
Article 2
(1) This decree shall be applicable in the Incorporated Eastern Territories, too.
(2) It shall take effect one day after promulgation.
Berlin, 31 May 1941.
The Acting Reich Minister of the Interior
As deputy: Dr. Stuckart
The Chief of the Party Chancellery
M. Bormann
The Acting Reich Minister of Justice
Dr. Schlegelberger
TRANSLATION OF DOCUMENT NG-505
PROSECUTION EXHIBIT 71
CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO THE PRESIDENTS OF THE COURTS OF APPEAL AND ATTORNEYS GENERAL, 24 JULY 1941, ENTITLED “MILD SENTENCES AGAINST POLES”
The Reich Minister of Justice
9170 Eastern territories 2-III
4 1137.41
Berlin W 8, 24 July 1941
Wilhelmstrasse 65
1. To the Presidents of the Courts of Appeals and the Attorneys General (with the exception of Prague).
2. Through the Reich Protector of Bohemia and Moravia to—
The Presidents of the Courts of Appeals and the Attorney General in Prague.
Subject: Mild sentences against Poles
Attached: 1 compilation 8 additional copies for the Chief Public Prosecutors
Despite my constant allusions to this matter during conferences and in individual instructions, I am time and again notified of sentences by which Poles in the Reich proper are given entirely insufficient prison sentences for sexual and other serious crimes. Such sentences reveal an incomprehensibly lenient attitude toward the Polish nation which confronts us with implacable enmity. They constitute a danger to the security of the German people and justify the reproach that the administration of criminal law has not proved adequate to the necessities of war.
To make this point clear, the attachment lists a few of such sentences against Polish criminals which have been changed by special instructions or which I had to have altered by way of the nullity plea.
I want to express my firm expectation that the officials of the justice administration will not fail to recognize the serious danger this constitutes for our people; and, last but not least, for the stability of the administration of criminal law. I, therefore, expect that from now on measures will be taken against Polish criminals in the Reich proper with all the necessary firmness and with the heaviest sentences in accordance with article 4 of the decree against public enemies.[345] Elements clearly criminal and sexual criminals of Polish nationality must, as a rule, be punished by death. That the application of article 4 of the decree against public enemies is principally justified in the case of crimes committed by Poles in the Reich proper has been recognized by the Reich Supreme Court in its decision C 258. 41 of 19 June 1941 with the following explanations:
“If * * * it is noted that entire groups of culprits * * * possess fewer inhibitions with regard to certain crimes than the German people in general, the protection of law and order demands greater watchfulness as to the resulting dangers. The demand for retribution and the deterrent effect would be seriously impaired if the administration of justice would grant such culprits any right of obtaining mild penalties.
The established fact that the defendant, a Pole, sexually assaulted a German girl should have caused * * * the court to examine the question of whether or not the characteristics of a crime, as defined in article 4 of the decree against public enemies, were present. There is reason to assume that the defendant in his assault on a juvenile female fellow worker made use of the absence, caused by war conditions, of male workers who might otherwise have been able to come to her aid, and that the circumstances of his crime, in addition, are of such reprehensible kind that they reveal a criminal possessing the essential characteristics of a public enemy * * *.”
In addition to this, it must be considered that Poles are now entering Germany only as a result of the wartime shortage of German labor and that as a result of the decrease of police forces, likewise due to the war, the necessary police supervision over Poles which would have been possible under normal peacetime conditions is no longer guaranteed.
The Acting Minister
[Typed signature] Dr. Schlegelberger[346]
Certified: [Signed] Bierwith
Administrative Assistant
[Ministerialskanzleiobersekretaer]
[Stamp]
Ministry of Justice
Office of the Minister
Tribunal handing down the sentence Perpetrator Crime Penalty Sentence handed down on Remarks
Jury at the district court of Bielefeld. Maziarz Attempt to rape two German women. 1 year, 3 months, of hard labor, lunatic asylum. 23 September 1940 Shot because of resistance on 16 November 1940.
Penal chamber of the district court of Lueneburg. Wojcieck Sexual crime committed by violence. 1 year of imprisonment. 21 October 1940 Nullity plea, sentence was repealed and referred back by Reich Supreme Court because section 4 of the decree against public enemies has not been applied.
Penal chamber of the district court of Guestrow. Wojtas Attempt to rape wife of employer. 1 year of imprisonment. 5 November 1940 Shot because of resistance on 1 March 1941.
Penal chamber of the district court of Prenzlau. Czaika Sexual crime against a child. 2 years of hard labor. 20 December 1940 Shot because of resistance on 10 March 1941.
Penal chamber of the district court of Rostock. Wojitarowicz Sexual offense against a child. 2 years of hard labor. 17 January 1941 Shot because of resistance on 17 February 1941.
Penal chamber of the district court of Cottbus. Chlabicz Numerous burglaries committed during the black-out after having escaped from the penitentiary. 10 years of hard labor, security detention. 5 February 1941 Transfer to Gestapo has been ordered.
Jury at the district court of Munich. Dziubczyk Rape. 6 years of hard labor. 28 February 1941 Shot because of resistance on 8 March 1941.
Jury at the district court of Bielefeld. Franz Golembiowski Sexual offense against a child. 8 years of hard labor. 4 April 1941 Transfer to Gestapo has been ordered.
Penal chamber of the district court of Stargard (Pomerania). Aplas Attempt to rape. 1 year and 6 months of hard labor. 16 July 1940 Transfer to Gestapo has been ordered.
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
DECREE OF 4 DECEMBER 1941 CONCERNING THE ADMINISTRATION OF PENAL JUSTICE AGAINST POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES[347]
1941 REICHSGESETZBLATT, PART I, PAGE 759
The Ministerial Council for the Defense of the Reich herewith decrees:
1. Substantive Criminal Law
I
(1) Poles and Jews in the Incorporated Eastern Territories are to conduct themselves in conformity with the German laws and with the regulations introduced for them by the German authorities. They are to abstain from any conduct liable to prejudice the sovereignty of the German Reich or the prestige of the German people.
(2) The death penalty shall be imposed on any Pole or Jew if he commits an act of violence against a German on account of his membership in the German ethnic community.
(3) A Pole or Jew shall be sentenced to death, or in less serious cases to imprisonment, if he manifests anti-German sentiments by malicious or inciting activities particularly by making anti-German utterances, or by removing or defacing official notices of German authorities or agencies, or if he, by his conduct, lowers or prejudices the prestige or the well-being of the German Reich or the German people.
(4) The death penalty or, in less serious cases, imprisonment, shall be imposed on any Pole or Jew—
1. If he commits any act of violence against a member of the German armed forces or its auxiliaries, of the German police force or its auxiliaries, of the Reich labor service, of any German authority or agency or of an organization of the NSDAP;
2. If he purposely damages installations of the German authorities or agencies, objects used by them in performance of their duties, or objects of public utility;
3. If he solicits or incites another person to disobey any decree or regulation issued by the German authorities;
4. If he conspires to commit an act punishable under paragraphs (2), (3), and (4), subparagraphs 1 through 3, or if he enters into serious negotiations about committing such an act, or if he offers to commit such an act, or accepts such an offer, or if he obtains credible information of such act, or of the intention of committing it, and fails to notify the authorities or any person threatened thereby at a time when danger can still be averted; and
5. If he is found to be in unlawful possession of a firearm, a hand grenade, or any weapon for stabbing or hitting, of explosives, ammunition or other implements of war, or if he has credible information that a Pole or a Jew is in unlawful possession of such an object, and fails to notify the authorities forthwith.
II
Punishment shall also be imposed on Poles or Jews if they act contrary to German criminal law or commit any act for which they deserve punishment in accordance with the fundamental principles of German criminal law and in view of the interests of the State in the Incorporated Eastern Territories.
III
(1) Penalties provided for Poles and Jews are—imprisonment, fine, or confiscation of property. The term of imprisonment is to be not less than 3 months and not more than 10 years in a penal camp; for more serious offenses, imprisonment consists of 2 to 15 years in a penal camp in which a more severe regimen is enforced.
(2) The death sentence shall be imposed in all cases where it is prescribed by the law. Moreover, in those cases where the law does not provide for the death sentence, it shall be imposed if the act shows a particularly base attitude or is particularly serious for other reasons; in these cases the death sentence may also be passed upon juvenile offenders.
(3) The minimum penalty or a fixed penalty prescribed by German criminal law cannot be reduced unless the criminal act is directed against the offender’s own people exclusively.
(4) If a fine cannot be recovered, it shall be substituted by imprisonment in a penal camp from 1 week to 1 year.
2. Criminal Procedure
IV
The public prosecutor shall prosecute a Pole or a Jew if he considers that punishment is in the public interest.
V
(1) Poles and Jews shall be tried by a Special Court or by the local court.
(2) The public prosecutor can file the indictment with a Special Court in all cases. He can file the indictment with the local court if the punishment to be imposed is not likely to be heavier than 5 years in a penal camp, or 3 years in a more rigorous penal camp.
(3) The jurisdiction of the People’s Court remains unaffected.
VI
(1) Every sentence will be carried out without delay. The public prosecutor may, however, appeal from the sentence of the local court to the court of appeal. The appeal has to be lodged within 2 weeks.
(2) The right to lodge complaints is also reserved exclusively to the public prosecutor. Complaints will be decided upon by the court of appeal.
VII
Poles and Jews cannot challenge a German judge on account of alleged partiality.
VIII
(1) Arrest and temporary detention are allowed whenever there are good grounds to suspect that a punishable act has been committed.
(2) During the preliminary investigations, the public prosecutor may also order arrest and any other coercive measures permissible.
IX
Poles and Jews are not sworn in as witnesses in criminal proceedings. If the unsworn deposition made by them before the court is false, the provisions as prescribed for perjury and false sworn statements shall be applied accordingly.
X
(1) Only the public prosecutor may apply for the reopening of proceedings. In a case tried before a Special Court, the decision on an application for the reopening of the proceedings rests with this court.
(2) The right to lodge a nullity plea rests with the attorney general. The decision on the plea rests with the court of appeal.
XI
Poles and Jews neither can file private suits nor bring about action as coplaintiffs.
XII
The court and the public prosecutor shall conduct proceedings within their discretion according to the principles of the German Law of Criminal Procedure. They may, however, dispense with the provisions of the Judicature Act and the Law of Criminal Procedure, whenever this may be expedient for the rapid and more efficient conduct of proceedings.
3. Civilian Court Martial Proceedings
XIII
(1) Subject to the consent of the Reich Minister of the Interior and the Reich Minister of Justice, the Reich governor (or provincial governor) may, until further notice, enforce martial law in the Incorporated Eastern Territories, either in the whole area under his jurisdiction or in parts thereof, upon Poles and Jews guilty of grave excesses against Germans or of other punishable acts which seriously endanger the German work of reconstruction.
(2) The courts established under martial law impose the death sentence. They may, however, dispense with punishment and refer the case to the Secret State Police (Gestapo).
(3) Subject to the consent of the Reich Minister of the Interior, the constitution and procedure of the courts established under martial law shall be regulated by the Reich governor.
4. Extent of Application of this Decree
XIV
(1) The provisions contained in sections I-IV of this decree apply also to those Poles and Jews who, on 1 September 1939, were domiciled or had their residence within the territory of the former Polish state, and who committed the punishable act in any part of the German Reich other than the Incorporated Eastern Territories.
(2) The case may also be tried by the court within whose jurisdiction the former domicile or residence of the perpetrator is situated. Sections V-XII apply accordingly.
(3) Paragraphs 1 and 2 do not apply to punishable acts tried by the courts in the Government General.
5. Concluding Regulations
XV
Within the meaning of this decree, the term “Poles” includes protected and stateless persons who belong to the Polish racial community.
XVI
Article II of the decree of 6 June 1940, concerning the introduction of German Criminal Law in the Incorporated Eastern Territories (Reichsgesetzblatt I, p. 844) no longer applies to Poles and Jews.[348]
XVII
The Reich Minister of Justice is authorized to issue rules and administrative regulations concerning the execution and implementation of this decree and to decide in all cases of doubt, in agreement with the Reich Minister of the Interior.
XVIII
This decree shall come into force on the fourteenth day after its promulgation.
Berlin, 4 December 1941
The President of the Ministerial Council for the Defense of the Reich
Reich Marshal Goering
The Plenipotentiary for the Administration of the Reich
Frick
The Reich Minister and Chief of the Reich Chancellery
Dr. Lammers
SCHLEGELBERGER DOCUMENT 61
SCHLEGELBERGER DEFENSE EXHIBIT 27
EXTRACTS FROM AN ARTICLE BY DR. ROLAND FREISLER, UNDER SECRETARY IN THE REICH MINISTRY OF JUSTICE, JANUARY 1942, CONCERNING CRIMINAL JURISDICTION FOR POLES[349]
The German Criminal Code for Poles by Dr. jur. Roland Freisler, State Secretary of the Reich Ministry of Justice, member of the Presidency of the Academy for German Law.
*******
II
The objective Criminal Jurisdiction for Poles
*******
It is not contradictory to justice if criminal jurisdiction for Poles is different from the German criminal jurisdiction. Even if one people within a state can be subject to one [system of] law only, it is yet quite possible that for another nationality within the same state another [system of] law is applicable. Whether this condition should be brought to bear must be determined by the necessities of the State. It is essential of course that the other national group can perceive the law in force for its members in order to be able to abide by it.
For there must be a standard whereby it can regulate its behavior. By this standard the conduct of its nationals can be judged fairly. There is nothing contrary to justice if the one criminal law in its general aspect is milder, the other, viewed as a whole is severer. After all there is justice in a sphere of severity as well as in a sphere of leniency.
If the administration of criminal justice for Poles devotes exactly the same care to the investigation of the facts of a case, as does the administration of criminal justice for Germans, viz, avoiding everything which even very remotely might resemble a judgment on suspicion, if, besides, it judges the established facts just as conscientiously according to the law applicable to Poles, as it judges the established facts in the case of Germans according to the general German penal law, and if, finally, it endeavors to render the right judgment in the award of punishment within the compass of the penal law applicable for Poles, as within the compass of the penalties pursuant to the general German penal law for Germans, the criminal jurisdiction for Poles is just, regardless of the different evaluation of actions of Germans and Poles, which might be necessary in many cases. The political task of the administration of criminal jurisdiction is not at all incompatible with justice.
The directives for arriving at a just decision, especially in the case of the law pursuant to Number II, in the criminal jurisdiction for Poles are deprived by viewing the German people and Reich as a whole in regard to the necessities of the State, the judicial comprehension of which is given by the political aim of German work in the Incorporated Eastern Territories. Looking at the individual Poles who have been committed for trial it follows from the general, legally established subordination law to which he is subject pursuant to Number I, and which should dominate and guide his whole conduct. By considering both points, i.e., State necessity and the duty of subordination, no divided result can be arrived at in any individual case, because the duty of subordination of the Pole in the Incorporated Eastern Territories is a State necessity, and because on the other hand the extent of this duty of subordination in itself is determined by the aim of the German construction work, i.e., by State necessity.
The German administration of criminal jurisdiction for Poles exercised in the fulfillment of the Polish task of the German folkdom in the Incorporated Eastern Territories will be characterized by justice just as it is in every other German administration of justice.
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The penal code for Poles has only one form of detention—the punitive camp. Therefore, this takes the place of confinement in a fortress, imprisonment, penal servitude as provided by the general German penal code. In the penal registers the punitive camp term will be recorded as “penitentiary” [Zuchthaus]. This does not mean, however, that it will be like penitentiary [service] in every respect. Thus not every term in a punitive camp will be regarded as “penitentiary”; only a term of increased severity in a punitive camp in the meaning of the regulations for the noninclusion of the period of detention in custody in the term of imprisonment for the duration of the war, will be regarded as “penitentiary.” However, where no special ruling is applicable, it will have to be concluded from the recording of the term in a punitive camp in the penal register that its legal status is that of penitentiary [service], as far as this can be applied to the State legal status of a Pole.
The judge may also pronounce a sentence of detention of increased severity in a punitive camp. In doing so, however, he does not choose another method of punishment. Legally the sentence of increased severity term in a punitive camp has to be considered as being the same as pronouncement of punishment of increased severity in a legal system, which allows the judge the possibility of sentences of increased severity.
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From the much increased minimum duration of terms of increased severity in a punitive camp (2 years) and from its increased limit (15 years) it follows that the judge is expected to make use of it in serious cases, which is also especially emphasized in the decree.
In case of death sentences the same methods of execution are in force, as applied by the German Criminal (Penal) Code.
By adding fines, confiscation of property, imprisonment, and capital punishment the penal code for Poles intends to complete the punitive methods applicable to Poles.
III
Law of procedure against Poles
d. Preliminary proceedings.
*******
By the general principle of every German administration of criminal jurisdiction, viz, that it must serve to establish actual facts and their true judgment—a principle which is adhered to without exception and unalterably the freedom of judgment in the arrangement of the preliminary proceedings finds its unchangeable limit (the same has to be said with regard to the trial). From this it follows as a matter of course that the public prosecutor in the preliminary proceeding will have to examine all evidence, extenuating as well as aggravating, and investigate it.
It is just as self-evident that in the place of preliminary proceedings by the public prosecutor and the decision of the public prosecutor concerning the indictment and abatement there can be no Klageerzwingungsverfahren[350] on the part of a private person in consideration of the principle of liberty of decision with regard to prosecution or nonprosecution, just as prosecuting authority no private person can appear as prosecutor, replacing the public prosecutor neither independently nor as coprosecutor; consequently the Pole can be neither plaintiff nor coplaintiff. In order to avoid any misinterpretation in this direction this has been expressly stated already in the decree establishing a penal code. In the decree establishing the penal code for Poles it is stated expressly: “The public prosecutor prosecutes crimes of Poles and Jews * * *.” (Number IV) “Poles and Jews can take neither civil action nor act as coplaintiffs.” (Number XI). From the first of these two legal provisions it follows also that against the Pole no civil action nor action as a coplaintiff can be taken; the public prosecutor alone is competent to prosecute.
If the liberty of decision in determining the procedure as well as the main trial is stressed time and again, on the other hand it must nevertheless be emphasized that the establishment of the true facts of the case is the purport and the rendering of a just verdict the aim of every criminal proceeding against Poles. Therefore, nothing may be disregarded which may serve to establish the truth and to arrive at a just verdict. For this it is essential that the accused is heard,—as long as he does not use this possibility granted him for propaganda—and that he can defend himself in connection with the accusation, that he may offer evidence of any kind, that he can express himself with regard to the findings of the evidence heard, and that he may have the last word. In cases where difficulties arise from difference of language it is of course essential that the possibility of understanding is secured, if necessary with the help of an interpreter. The judge and all the officials of the administration of justice always and without exception will speak German. Likewise all evidence, as far as it is not declared with certainty as being unsuitable right away, must be fully investigated.
The giving of the opportunity to the public prosecutor and the judge to use their own discretion in the arrangement of proceedings was possible only because it may be assumed that no German public prosecutor and no German judge in any proceeding conducted by him will ignore these principles.
Should that happen, however, in an isolated case, it is to be expected that the public prosecutor will appeal against a decision arrived at during a trial exhibiting such fundamental defects with the legal measures at his disposal. The senates of the four district courts of appeal, which are the highest authority in Polish matters, guarantee that they display in these cases by the way in which they deal with appeals that such high principles may not be left out of consideration and that they express this clearly in the reasons given for the verdict, although this is not absolutely necessary for the establishment of the sentence itself, because it is not a revised judgment but a sentence on appeal * * *.
f. Execution of a sentence.
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Even if every sentence can be carried out immediately nevertheless it is self-evident that the authority carrying out sentences will not proceed to the execution if in a specific case the possibility exists that the condemning verdict can undergo a substantial change by legal measures to the advantage of the condemned person or even be changed into acquittal. It is completely self-evident that the severest penalty will not be put into effect before it has the force of law; this is also impossible because the decision of the supreme authority as to the execution or nonexecution can only be brought about after the sentence becomes valid. It has also to be expected that the executing authority will stay the execution of the penalty if that authority or the public prosecutor—perhaps because of new evidence—later arrives at the conclusion that the condemning sentence cannot be upheld, or at least reckons with the not too distant possibility of such a result of an appeal or of a retrial.
The decree contains no specification that the court of appeal, or court of retrial, or its president can order a stay of execution of a sentence. The legislator believed he could abstain from such a specification, because the attorney general will see to it in the way of administration that such a stay is brought about at the suggestion of the president. It is not necessary that everything should be ordered in the way of legislation that can be safeguarded in the way of administration.
g. Legal means—The public prosecutor can “lodge an appeal against sentences passed by the judge of a local court with the district court of appeal. The period of time within which an appeal is to be lodged is 2 weeks.” (Number VI) The extension of the time limit is explained not only by the poor rail and postal communications which are sometimes even worse in the Incorporated Eastern Territories than in other parts of the Reich. Its explanation is to be found above all in the fact that it is also the duty of the public prosecutor to examine whether an appeal is to be lodged on behalf of the condemned person. The condemned person will quite often suggest this to him. The public prosecutor will then require a certain amount of time in order to examine whether the new statements and evidence, which the defendant has perhaps given him when he suggested such an appeal. For that the summary examination of evidence offered will often be necessary and will take a few days. Just when the public prosecutor is confronted with the question whether he is to lodge an appeal on behalf of the condemned person he will do well to hold himself more than ever aloof from the bad custom of lodging an appeal “as a precaution.” For in this case he would raise false hopes and in addition, even if he does not subsequently maintain the appeal, would in the eyes of the condemned divest the judgment of some of its authority. He must therefore have time for a summary examination. From this resulted the extension of the time limit for the lodging of an appeal.
TRANSLATION OF DOCUMENT NG-665
PROSECUTION EXHIBIT 346
SUPPLEMENTARY DECREE, 31 JANUARY 1942, CONCERNING THE ADMINISTRATION OF PENAL JUSTICE AGAINST POLES AND JEWS IN THE INCORPORATED EASTERN TERRITORIES
1942 REICHSGESETZBLATT, PART I, PAGE 52
Pursuant to article XVII of the decree concerning the Administration of Penal Justice against Poles and Jews in the Incorporated Eastern Territories of 4 December 1941[351] (Reichsgesetzblatt Part I, page 759), the following is decreed:
Article I
Articles I to III of the decree of 4 December 1941 (Reichsgesetzblatt I, p. 759) may be equally applied with the consent of the public prosecutor to offenses committed before the decree came into force.
Article II
(1) The court may rule in every case that Poles and Jews be interrogated by a commissioned or requested judge; article 251, paragraph 2, of the Reich Code of Criminal Procedure and article 252, paragraph 3, of the Austrian Code of Criminal Procedure will remain unchanged.
(2) This regulation equally applies to Poles and Jews who, on 1 September 1939, resided or were abiding in the territory of the former Polish State and who are interrogated as witnesses in other parts of the German Reich.
Berlin, 31 January 1942
The Acting Reich Minister of Justice
Dr. Schlegelberger
The Reich Minister of the Interior
As deputy: Pfundner
PARTIAL TRANSLATION OF DOCUMENT NG-1106
PROSECUTION EXHIBIT 462
EXTRACT FROM THE MINUTES OF A CONFERENCE BETWEEN DEFENDANT ROTHENBERGER AND THREE JUDGES OF THE HAMBURG COURTS, 23 JANUARY 1942, CONCERNING THE EXEMPTION OF DESTITUTE JEWS FROM COURT FEES
Notes on a discussion held on 23 January 1942
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II. Present: Senator Dr. Rothenberger, Local Court Judge Dr. Schwarz, Presiding Judge Korn of the District Court, Judge Dr. F. Priess of the District Court of Appeal
[Marginal note] copy made out for: 3715-1b 1/17 a-c
extract
The senator [the defendant Rothenberger] reported that the question of the Armenrecht[352] concerning Jews has come into the foreground again. With the district court there were two cases pending. He requested that contacts with the judges of the district court and of the local court be taken up at once so that a uniform line is followed to the effect that the Jews be denied the benefits of the Armenrecht. It would be entirely out of the question that Jews be granted the benefits of the Armenrecht subsequent to the present development. This would apply especially to Jews who had been evacuated, but in his opinion also to those who had not been evacuated. With regard to the matter it had to be considered whether or not any material claims of the Jews could still be answered in the affirmative. Concerning this question, it might, however, be practical to maintain a certain reserve.
Presiding Judge Korn of the district court had raised certain objections to the denial, because up to now it was lacking any legal basis.
Hamburg, 27 January 1942
For information—1. To Councillor of the Local Court for information and further action (with regard to II)
2. To High Judicial Inspector Bellair for further action 27 January 1942
[Illegible initials]
323-1b 2/1
TRANSLATION OF DOCUMENT NG-589
PROSECUTION EXHIBIT 372
UNDATED REPORT FROM THE DISTRICT COURT IN HAMBURG CONCERNING GRANTING OF BENEFITS FOR DESTITUTE PERSONS TO A JEW, TOGETHER WITH TWO LETTERS OF DEFENDANT ROTHENBERGER AND AN INTEROFFICE MEMORANDUM, 13 FEBRUARY-22 MAY 1942
Excerpts from the File Prenzlau against Behrens and Lundin—2 0.84/41
The Jewish plaintiff Israel Prenzlau proposed that Armenrecht be granted him in an intended lawsuit against Karl Behrens and Paul Lundin in consideration of a claim which is supposed to have arisen from the withdrawal of the Jewish co-associate from the G.m.b.H. [limited liability company].
On 30 June 1937 the plaintiff withdrew from the Prenzlau, Behrens, and Lundin G.m.b.H. The firm is now continuing its business as a trading company with unlimited liability of the partners. At the time of the withdrawal, it had not yet been ascertained that a former employee had defrauded the firm for the amount of 80,000 reichsmarks. He maintains that he retains his share of the claim against Hahn, or rather those firms which by default have rendered possible the loss to the G.m.b.H. of so large an amount. The defendants, in the course of the Armenrecht proceedings, have offered 3,000 reichsmarks in settlement of the claim, subject to approval by the Gau economic adviser. The Gau economic adviser, after only a preliminary short comment, gave the following interpretation on 6 November 1941:
“In reply to your inquiry I state my point of view in detail.
“In a lawsuit between a German national and a Jew I consider the settling of a dispute by legal measures inadmissible for political reasons. The German national as party in the lawsuit, pursuant to his clearly defined legal standard derived from his political training since 1933, can expect that the court will decide the case by a verdict that is to meet a conclusive decision on the case. What is expected is a decision which was arrived at not from purely legal points of view, as result of a legal trend of thoughts, but which is an expression of the way in which National Socialist demands, concerning the Jewish question, are realized by German lawyers. Evading this decision by a compromise might mean encroaching upon the rights of a fellow citizen in favor of a Jew. This kind of settlement would be in contradiction to the sound sentiments of the people, I therefore consider it as inadmissible.”
The defendants thereupon refused a settlement with the plaintiff and now deny they owe him anything.
On 6 December 1941 the district court [Hamburg] granted Armenrecht. Subsequently, action was brought in as follows:
1. To disclose to the plaintiff what the payments have been, which have been made so far to the parties entitled to redress pursuant to the claim against Hahn.
2. To pay defendant 22 percent of the total amounts received, with 4 percent interest from the day the action was filed.
The court intends now to issue a conclusion based on evidence.
3715-1b 1 17
13 February 1942
To the President of the District Court
Hamburg
1 Document
With regard to the pending case Prenzlau against Behrens and Lundin I do not intend to approach the economic adviser of the Gau for the time being, seeing from the documents that the ultimate beneficiary of the claim—the son of the plaintiff—emigrated in the year 1938 and his property has therefore surely been confiscated. I fail to understand why the court granted Armenrecht to the assignee, a Jew, without first consulting the authority for sequestration of property. The cession most probably will become meaningless as it was transferred in trusteeship by the son to the father shortly before his emigration.
Please discuss the matter with the judge.
[Typed signature] Dr. Rothenberger
Written: 13 February 1942
Read:
Mailed: 14 February 1942
Note
The senator discussed in Berlin the question of granting Armenrecht to Jews. A ruling will probably be issued shortly. Every case coming on hand must first be submitted to the senator. President Korn and President Dr. Segelken have been informed by me to this effect.
Hamburg, 24 February 1942
[Illegible initial]
[Handwritten notes]
Local Court Judge Dr. Bartsch for information.
25 February 42
Seen 25 February 1942
[Signed] Sen
22 May 1942
3715-1b/1/17/
To the President of the District Court
Hamburg
Subject: Granting of Armenrecht to Jews
Reference: Your letter A.R. 53/42
1 Document
I hereby return the document Prenzlau against Behrens and Lundin 2648/41-20 H 28/41 sent to me with report of 7 May.
With his circular ordinance of 5 March 1942—3715 IV b 3 332, with which you are familiar, the Reich Minister of Justice has annulled his circular ordinance of 23 June 1939—3740 IV b 1118, stating that the granting of Armenrecht to Jews could be taken into consideration only in such cases where the carrying out of the lawsuit is in the common interest. In consequence thereof I consider it adequate that the Armenrecht granted to plaintiff Prenzlau be cancelled.
Please have this taken into consideration by the court in a form which you deem appropriate.
[Typed signature] Dr. Rothenberger
22 May 1942
Written: 22 May 1942
Read:
Mailed: 23 May 1942
TRANSLATION OF DOCUMENT 4055-PS
PROSECUTION EXHIBIT 401
LETTER FROM DEFENDANT SCHLEGELBERGER TO LAMMERS, 12 MARCH 1942, EXPRESSING CONCERN ABOUT CONTEMPLATED ANTI-JEWISH MEASURES; REPLY FROM LAMMERS, 18 MARCH 1942; LETTER FROM SCHLEGELBERGER TO SEVEN GOVERNMENT AND PARTY AGENCIES ON “THE FINAL SOLUTION OF THE JEWISH PROBLEM,” 5 APRIL 1942; FILE NOTE ON SITUATION OF BERLIN JEWS, 21 NOVEMBER 1941
Berlin, 12 March 1942
The Acting Reich Minister of Justice
Dear Reich Minister Dr. Lammers:
I have just been informed by my Referent about the result of the meeting of 6 March regarding the treatment of Jews and descendants of mixed marriages. I am now expecting the official transcript. According to the report of my Referent, decisions seem to be under way which I am constrained to consider absolutely impossible for the most part. Since the results of these discussions are to constitute the basis for the decision of the Fuehrer, and since a Referent from your Ministry participated likewise in these discussions, I urgently desire to discuss this matter with you on time. As soon as I have received the transcript of the meeting, I shall take the liberty in calling you to ask you if and when a discussion may take place.
With sincerest regards and Heil Hitler!
Yours devotedly
[Typed signature] Dr. Schlegelberger
To the Reich Minister and Chief of the Party Chancellery
Dr. Lammers,
Berlin
01/108
The Reich Minister and Chief of the Reich Chancellery
Berlin W 8
Vosstrasse 6
18 March 1942
Pk 3614 B
at present Fuehrer Headquarters
Under Secretary Professor Dr. Schlegelberger,
Acting Reich Minister of Justice
Subject: Total solution [Gesamtloesung] of the Jewish question
In reply to the letter of 12 March 1942
Dear Dr. Schlegelberger:
I will be very glad to comply with your request and to discuss this question with you. I shall probably be visiting Berlin again toward the end of the month and will then have you informed about a suitable date.
Heil Hitler!
yours sincerely,
[Signed] Dr. Lammers
The Acting Reich Minister of Justice
Berlin W 8, 5 April 1942
Wilhelmstrasse 65
Secret Reich Matter
IV b 40 g RE
To:[353]
1. The Chief of the Party Chancellery
Attention: SS Oberfuehrer Klopfer
2. The Reich Minister of the Interior
Attention: Under Secretary Dr. Stuckart
3. The Chief of the Security Police and the SD
SS Obergruppenfuehrer Heydrich
4. The Deputy for the Four Year Plan
Attention: Under Secretary Neumann
5. The Foreign Office
Attention: Under Secretary Luther
6. The Reich Minister for the Occupied Eastern Territories
Attention: Gau Leader and Under Secretary Dr. Meyer
7. The Race and Settlement Main Office of the Reich Leader SS
Attention: SS Gruppenfuehrer Hofmann
Subject: Final solution [Endloesung] of the Jewish problem
1. The final solution of the Jewish problem presupposes a clear-cut and permanently applicable definition of the group of persons for whom the projected measures are to be initiated. Such a definition applies only when we desist from the beginning from including descendants of mixed marriages of the second degree in these measures. The measures for the final solution of the Jewish problem should extend only to full-blooded Jews and descendants of mixed marriages of the first degree, but should not apply to descendants of mixed marriages of the second degree.[354]
2. With regard to the treatment of Jewish descendants of mixed marriages of the first degree, I agree with the conception of the Reich Minister of the Interior which he expressed in his letter of 16 February 1942, to the effect that the prevention of propagation of these descendants of mixed marriages is to be preferred to their being thrown in with the Jews and evacuated. It follows therefrom that evacuation of those half-Jews who are no more capable of propagation, is excluded from the beginning. There is no national interest in dissolving the marriages between such half-Jews and a full-blooded German.
Those half-Jews who are capable of propagation should be given the choice to submit to sterilization or to be evacuated in the same manner as Jews. In the case of sterilization, as well as in that of evacuation of the half-Jew, the German-blooded partner will have to be given the opportunity to effect the dissolution of the marriage. I see no objection to the German partner’s obtaining the possibility of divorcing his or her sterilized or evacuated partner in a simplified procedure without [having to observe] the limitation of article 53 of the marriage law.
3. An exception might be worthy of consideration with respect to those half-Jews whose descendants are becoming members of the German national community, and who are finally absorbed by it. If these descendants are to be incorporated into the German national community as full fledged members—which has to be the aim in case of a genuine final solution of the Jewish question—it seems advisable to protect them from being treated as inferiors or from having feelings of inferiority which could arise easily out of the knowledge and the bad conscience that their immediate ancestors have been affected by the planned defensive measures of the national community. For this reason, it should be considered whether or not half-Jews whose living descendants are not half-Jews should be spared from evacuation as well as sterilization.
4. I have no scruples against facilitation of divorce of marriages between racial Germans and Jews. This facilitation should also be extended to marriages with persons who are considered as Jews. The divorce will have to be granted upon the request of the German-blooded partner in a simplified procedure. I have considerable scruples about compulsory divorces, for instance, on motion of the public prosecutor. Such compulsion is unnecessary because the partners will be separated in any case by the deportation of the Jewish partner. An enforced divorce, moreover, is without avail, because, though it cuts the marriage ties, it does not cut the inner tie between the partners; moreover, it does not relieve the German partner from the scorn to which he is exposed by clinging to his marriage. Finally, a clinging to marriage on the part of the German-blooded partner is to be expected only in the case of older marriages which have endured throughout many years. In cases in which the Jewish partner, as a rule, is not evacuated but confined to an old people’s ghetto, the German-blooded partner who disclaims his membership in the German community should not be prohibited from being admitted to the ghetto.
[Typed signature] Dr. Schlegelberger
Note—In view of the present position of the Jews, discussions are pending in the building whether Jews are to be deprived of the right to participate in a lawsuit and whether some other ruling is to be made concerning their representation before court. The decisive factor is whether the immediate removal of all Jews can be counted upon. About 77,000 Jews live in Berlin alone. About 7,000 of these have been removed so far. The Labor Exchange for Jews, 15 Fontane-promenade—Government Counsellor Epphaus—and the Secret State Police (Dept. Burgstrasse—official in charge, Pruefer) have “reserved” the Jews, who at present are difficult to replace, who are working in armament factories and other war essential concerns. Furthermore, Jews living in privileged mixed marriages have not so far been removed. On the other hand, all Jewish legal consultants [Konsulenten] in Berlin have been ordered to leave. These Jews are today “reserved.” Accordingly, it must be assumed that a considerable number of Jews will remain on Reich territory, and particularly in Berlin, for some time to come.
Berlin, 21 November 1941
[Typed signature] Lutterloh
Ministerialdirigent
Senior Government Counsellor Dr. Gramm
Please inform the Under Secretary.
PARTIAL TRANSLATION OF DOCUMENT NG-270
PROSECUTION EXHIBIT 155
EXTRACTS FROM AN ARTICLE IN STREICHER’S[355] “DER STUERMER,” 2 APRIL 1942, CONCERNING THE KATZENBERGER TRIAL AND JUDGMENT
Der Stuermer
DEATH TO THE RACE DEFILER
A Trial before the Nuernberg Special Court
Race defiler Katzenberger—13–14 March 1942—page 2, column 1
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The prosecutor reads the charge. The Jew Katzenberger had committed “race defilement” with the now 31-year-old business proprietress Irene S., of Nuernberg, of German blood, from 1932 until the year 1940 (!) by exploiting this woman’s financial difficulties. He did not even shrink back from exploiting—for his Talmudic practices—the conditions caused by the war and the absence of the husband S. who has been conscripted for military service. Irene S. is charged with attempting to withhold the deserved punishment from the Jew by committing perjury in the pretrial interrogation.
How Katzenberger defends himself (p. 2, col. 1)
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How will Katzenberger try to deceive the Court and escape avenging justice?
The Jew Katzenberger developed special tactics of his own. He pretends not to have engaged in “race defiling,” but to have entertained merely “fatherly” relations with Irene S. * * * Only out of “pure fatherly” sentiment has he thrown cigarettes to her through the window and given her lots of shoes.
*******
Before the verdict (p. 2, col. 4)
After the presentation of evidence has been concluded, the prosecutor rises. With sharp words he characterizes the defendant as a criminal, who did not even shrink back from exploiting war conditions for his shameless activities. As a race defiler and public parasite in the sense of the law, Katzenberger has forfeited his life. Therefore, the death sentence should be pronounced against him. The other defendant, Irene S., should be sentenced to 2 years’ hard labor and loss of civil rights for 2 years.
*******
In his final statement the Jew Katzenberger eventually tries at least to save what can be saved.
Once more he tries to act the “benefactor,” in order to appeal to the pity of the judges. With an impudence which only a Jew can muster, he characterizes all that has been presented against him, as “backstairs’ gossip” and finally even wants to claim Frederick The Great as his principal witness. But the president does not permit a Jewish race defiler to soil the figure of the great Prussian King. The court then adjourned for deliberation.
Sentenced to death! (p. 3, col. 1)
When the court reenters the courtroom to announce the verdict one can already see from the earnest looks of the judges that the fate of the Talmudic criminal has been sealed.
As a race defiler and public parasite Katzenberger is sentenced to death.
The codefendant Irene S. gets 2 years’ hard labor and loss of civil rights for perjury. President of the District Court of Appeal R. points to words in the findings of the verdict, which prove to what extent the German judges are imbued with the tremendous importance of the racial laws. The president brands the depravity of the defendant and stamps him as an evil public parasite. “Racial defilement is worse than murder! Entire generations will be affected by it into the remotest future!” President of the district court of appeal R. in his speech also refers to the guilt of Jewry in this war. “If today German soldiers are bleeding to death, then the guilt falls upon that race which from the very beginning strived for Germany’s ruin, and still hopes today that the German people will not emerge from this struggle.” In the case of Katzenberger the court had to pronounce the death sentence. The physical destruction of the perpetrator was the only possible atonement.
The end (p. 3, col. 1)
With the findings of the verdict the sentence of the Special Court has become effective.
Why the “Stuermer” describes the Katzenberger trial in detail (p. 3, col. 2)
*******
The Jew Katzenberger was sentenced to death as a race defiler and public parasite. This sentence (it is not the first of this kind in the Reich) was pronounced in Nuernberg and thus honors the city whose name was bestowed upon the racial laws of 15 September 1935. For the “Stuermer” however, this sentence signifies a special satisfaction, because it was the “Stuermer” which, in a special edition of the year 1938, had demanded the death penalty for race defilers.
*******
If today Jewish race defilers are really sentenced to death, then this proves that the “Stuermer” has been a good prophet for many years.
Race defilers are public parasites (p. 3, col. 4)
*******
Jewish race defilers therefore will have to take care in the future. They do not risk their freedom only but also their heads and necks. The patience of the German people has become exhausted. It does not treat Jewish public parasites more tenderly any longer than the public parasites from our own ranks. In this sense the Katzenberger trial has received a significance which goes far beyond the Nuernberg courtroom.
Everything for the German people (p. 3, col. 4)
The world Jewry will discover that Germany knows how to defend herself with the severe measures against Jewish race defilers. Now it will again write using the old long-tried tactics, about the “medieval conditions” prevailing in Germany. It will again glorify those “poor, deplorable, harmless Jews,” who become the victims of National Socialist legislation. It will give vent to spite and malice toward Germany.
TRANSLATION OF DOCUMENT NG-154
PROSECUTION EXHIBIT 152
OPINION AND SENTENCE OF THE NUERNBERG SPECIAL COURT IN THE KATZENBERGER CASE, 13 MARCH 1942, IN WHICH DEFENDANT ROTHAUG WAS PRESIDING JUDGE[356]
Sg No. 351/41
Verdict
In the name of the German People
The Special Court for the district of the Court of Appeal in Nuernberg with the District Court Nuernberg-Fuerth in the proceedings against Katzenberger, Lehmann Israel, commonly called Leo, merchant and head of the Jewish religious community in Nuernberg, and Seiler, Irene, owner of a photographic shop in Nuernberg, both at present in arrest pending trial the charges being racial pollution and perjury—in public session of 13 March 1942, in the presence of—
The President—Dr. Rothaug, Senior Judge of the District Court;
Associate Judges—Dr. Ferber and Dr. Hoffmann, Judges of the District Court;
Public Prosecutor for the Special Court—Markl; and
Official Registrar: Raisin, clerk, pronounced the following verdict:
Katzenberger, Lehmann Israel, commonly called Leo, Jewish by race and religion, born 25 November 1873 at Massbach, married, merchant of Nuernberg; Seiler, Irene, née Scheffler, born 26 April 1910 at Guben, married, owner of a photographic shop in Nuernberg, both at present in arrest pending trial have been sentenced as follows:
Katzenberger—for an offense under section 2, legally identical with an offense under section 4 of the decree against public enemies in connection with the offense of racial pollution to death and to loss of his civil rights for life according to sections 32–34 of the criminal (penal) code.
Seiler—for the offense of committing perjury while a witness to 2 years of hard labor and to loss of her civil rights for the duration of 2 years.
The 3 months the defendant Seiler spent in arrest pending trial will be taken into consideration in her sentence.
Costs will be charged to the defendants.
Findings
I
1. The defendant Katzenberger is fully Jewish and a German national; he is a member of the Jewish religious community.
As far as his descent is concerned, extracts from the birth registers of the Jewish community at Massbach show that the defendant was born on 25 November 1873 as the son of Louis David Katzenberger, merchant, and his wife Helene née Adelberg. The defendant’s father, born on 30 June 1838 at Massbach, was, according to an extract from the Jewish registers at Thundorf, the legitimate son of David Katzenberger, weaver, and his wife Karoline Lippig. The defendants’ mother Lena Adelberg, born on 14 June 1847 at Aschbach, was, according to extracts from the birth register of the Jewish religious community of Aschbach, the legitimate daughter of Lehmann Adelberg, merchant and his wife, Lea. According to the Thundorf register, the defendant’s parents were married on 3 December 1867 by the district rabbi in Schweinfurt. The defendant’s grandparents on his father’s side were married, according to extracts from the Thundorf register, on 3 April 1832; those on his mother’s side were married, according to an extract from the register of marriages of the Jewish religious community of Aschbach, on 14 August 1836.
The extracts from the register of marriages of the Jewish religious community at Aschbach show, concerning the marriage of the maternal grandparents, that Bela-Lea Seemann, born at Aschbach in 1809, was a member of the Jewish religious community. Otherwise the documents mentioned give no further information so far as confessional affiliations are concerned that parents or grandparents were of Jewish faith.
The defendant himself has stated that he is certain that all four grandparents were members of the Jewish faith. His grandmothers he knew when they were alive; both grandfathers were buried in Jewish cemeteries. Both his parents belonged to the Jewish religious community, as he does himself.
The court sees no reason to doubt the correctness of these statements, which are fully corroborated by the available extracts from exclusively Jewish registers. Should it be true that all four grandparents belonged to the Jewish faith, the grandparents would be regarded as fully Jewish according to the regulation to facilitate the producing of evidence in section 5, paragraph 1 together with section 2, paragraph 2, page 2 of the ordinance to the Reich Civil Code of 14 November 1935 Reichsgesetzblatt, page 1333. The defendant therefore is fully Jewish in the sense of the Law for the Protection of German Blood.[357] His own admissions show that he himself shared that view.
The defendant Katzenberger came to Nuernberg in 1912. Together with his brothers, David and Max, he ran a shoe shop until November 1938. The defendant married in 1906, and there are two children, ages 30 and 34.
Up to 1938 the defendant and his brothers, David and Max, owned the property of 19 Spittlertorgraben in Nuernberg. There were offices and storerooms in the rear building, whereas the main building facing the street was an apartment house with several apartments.
The codefendant Irene Seiler arrived in 1932 to take a flat in 19 Spittlertorgraben, and the defendant Katzenberger has been acquainted with her since that date.
2. Irene Seiler, née Scheffler, is a German citizen of German blood.
Her descent is proved by documents relating to all four grandparents. She herself, her parents, and all her grandparents belong to the Protestant Lutheran faith. This finding of the religious background is based on available birth and marriage certificates of the Scheffler family which were made part of the trial. As far as descent is concerned therefore, there can be no doubt about Irene Seiler, née Scheffler, being of German blood.
The defendant Katzenberger was fully cognizant of the fact that Irene Seiler was of German blood and of German nationality.
On 29 July 1939, Irene Scheffler married Johann Seiler, a commercial agent. There have been no children so far.
In her native city, Guben, the defendant attended secondary school and high school up to Unterprima [eighth grade of high school], and after that, for 1 year, she attended the Leipzig State Academy of Art and Book Craft.
She went to Nuernberg in 1932 where she worked in the photographic laboratory of her sister Hertha, which the latter had managed since 1928 as a tenant of 19 Spittlertorgraben. On 1 January 1938, she took over her sister’s business at her own expense. On 24 February 1938, she passed her professional examination.
3. The defendant Katzenberger is charged with having had continual extra-marital sexual intercourse with Irene Seiler, née Scheffler, a German national of German blood. He is said to have visited Seiler frequently in her apartment in Spittlertorgraben up to March 1940, while Seiler visited him frequently, up to autumn 1938, in the offices of the rear building. Seiler, who is alleged to have got herself in a dependent position by accepting gifts of money from the defendant Katzenberger and by being allowed delay in paying her rent, was sexually amenable to Katzenberger. Thus, their acquaintance is said to have become of a sexual nature, and, in particular, sexual intercourse occurred. They are both said to have exchanged kisses sometimes in Seiler’s flat and sometimes in Katzenberger’s offices. Seiler is alleged to have often sat on Katzenberger’s lap. On these occasions Katzenberger, in order to achieve sexual satisfaction, is said to have caressed and patted Seiler on her thighs through her clothes, clinging closely to Seiler, and resting his head on her bosom.
The defendant Katzenberger is charged with having committed this act of racial pollution by taking advantage of wartime conditions. Lack of supervision was in his favor, especially as he is said to have visited Seiler during the black-out. Moreover, Seiler’s husband had been called up, and consequently surprise appearances of the husband were not to be feared.
The defendant Irene Seiler is charged with having, on the occasion of her interrogation by the investigating judge of the local Nuernberg Court on 9 July 1941, made deliberately untrue statements and affirmed under oath that this contact was without sexual motives and that she believed that to apply to Katzenberger as well.
Seiler, it is alleged, has thereby become guilty of being a perjuring witness.
The defendants have said this in their defense—
The defendant Seiler—When in 1932 she arrived in the photographic laboratory of her sister in Nuernberg, she was thrown completely on her own resources. Her sister returned to Guben, where she opened a studio as a photographer. Her father had recommended her to the landlord, the defendant Katzenberger, asking him to look after her and to assist her in word and deed. This was how she became closely acquainted with the Jew Katzenberger.
As time went on, Katzenberger did indeed become her adviser, helping her, in particular, in her financial difficulties. Delighted with the friendship and kindness shown her by Katzenberger she came to regard him gradually as nothing but a fatherly friend, and it never occurred to her to look upon him as a Jew. It was true that she called regularly in the storerooms of the rear house. She did so after office hours, because it was easier then to pick out shoes. It also happened that during these visits, and during those paid by Katzenberger to her flat, she kissed Katzenberger now and then and allowed him to kiss her. On these occasions she frequently would sit on Katzenberger’s lap which was quite natural with her and had no ulterior motive. In no way should sexual motives be regarded as the cause of her actions. She always thought that Katzenberger’s feelings for her were purely those of a concerned father.
Basing herself on this view she made the statement to the investigating judge on 9 July 1941 and affirmed under oath, that when exchanging those caresses neither she herself nor Katzenberger did so because of any erotic emotions.
The defendant Katzenberger—He denies having committed an offense. It is his defense that his relations with Frau Seiler were of a purely friendly nature. The Scheffler family in Guben had likewise looked upon his relations with Frau Seiler only from this point of view. That he continued his relations with Frau Seiler after 1933, 1935, and 1938, might be regarded as a wrong [Unrecht] by the NSDAP. The fact of his doing so, however, showed that his conscience was clear.
Moreover, their meetings became less frequent after the action against the Jews in 1938. After Frau Seiler got married in 1939, the husband often came in unexpectedly when he, Katzenberger, was with Frau Seiler in the flat. Never, however, did the husband surprise them in an ambiguous situation. In January or February 1940, at the request of the husband, he went to the Seiler’s apartment twice to help them fill in their tax declarations. The last talk he ever had in the Seiler apartment took place in March 1940. On that occasion Frau Seiler suggested to him to discontinue his visits because of the representations made to her by the NSDAP, and she gave him a farewell kiss in the presence of her husband.
He never pursued any plans when being together with Frau Seiler, and he therefore could not have taken advantage of wartime conditions and the black-out.
II
The court has drawn the following conclusions from the excuses made by the defendant Katzenberger and the restrictions with which the defendant Seiler attempted to render her admissions less harmful:
When, in 1932, the defendant Seiler came to settle in Nuernberg at the age of 22, she was a fully grown and sexually mature young woman. According to her own admissions, credible in this case, she was not above sexual surrender in her relations with her friends.
In Nuernberg, when she had taken over her sister’s laboratory in 19 Spittlertorgraben, she entered the immediate sphere of the defendant Katzenberger. During their acquaintance she gradually became willing, in a period of almost 10 years, to exchange caresses and, according to the confessions of both defendants, situations arose which can by no means be regarded merely as the outcome of fatherly friendliness. When she met Katzenberger in his offices in the rear building or in her flat, she sat often on his lap and, without a doubt, kissed his lips and cheeks. On these occasions Katzenberger, as he admitted himself, responded to these caresses by returning the kisses, putting his head on her bosom and patting her thighs through her clothes.
To assume that the exchange of these caresses, admitted by both of them, were on Katzenberger’s part the expression of his fatherly feelings, on Seiler’s part merely the actions caused by daughterly feelings with a strong emotional accent, as a natural result of the situation, is contrary to all experience of daily life. The subterfuge used by the defendant in this respect is in the view of the court simply a crude attempt to disguise as sentiment, free of all sexual lust, these actions with their strong sexual bias. In view of the character of the two defendants and basing itself on the evidence submitted, the court is firmly convinced that sexual motives were the primary cause for the caresses exchanged by the two defendants.
Seiler was usually in financial difficulties. Katzenberger availed himself of this fact to make her frequent gifts of money, and repeatedly gave her sums from 1 to 10 reichsmarks. In his capacity as administrator of the property on which Seiler lived and which was owned by the firm he was a partner of, Katzenberger often allowed her long delays in paying her rental debts. He often gave Seiler cigarettes, flowers, and shoes.
The defendant Seiler admits that she was anxious to remain in Katzenberger’s favor. They addressed each other in the second person singular.
According to the facts established in the trial, the two defendants offered to their immediate surroundings, and in particular to the community of the house of 19 Spittlertorgraben, the impression of having an intimate love affair.
The witnesses Kleylein, Paul and Babette; Maesel, Johann; Heilmann, Johann; and Leibner, Georg observed frequently that Katzenberger and Seiler waved to each other when Seiler, through one of the rear windows of her flat, saw Katzenberger in his offices. The witnesses’ attention was drawn particularly to the frequent visits paid by Seiler to Katzenberger’s offices after business hours and on Sundays, as well as to the length of these visits. Everyone in the house came to know eventually that Seiler kept asking Katzenberger for money, and they all became convinced that Katzenberger, as the Jewish creditor, exploited sexually the poor financial situation of the German-blooded woman Seiler. The witness Heilmann, in a conversation with the witness Paul Kleylein, expressed his opinion of the matter to the effect that the Jew was getting a good return for the money he gave Seiler.
Nor did the two defendants themselves regard these mutual calls and exchange of caresses as being merely casual happenings of daily life, beyond reproach. According to statements made by the witnesses Babette and Paul Kleylein, they observed Katzenberger to show definite signs of fright when he saw that they had discovered his visits to Seiler’s flat as late as 1940. The witnesses also observed that during the later period Katzenberger sneaked into Seiler’s flat rather than walking in openly.
In August 1940, while being in the air-raid shelter, the defendant Seiler had to put up with the following reply given to her by Oestreicher, an inhabitant of the same house, in the presence of all other inhabitants: “I’ll pay you back, you Jewish hussy.” Seiler did not do anything to defend herself against this reproach later on, and all she did was to tell Katzenberger of this incident shortly after it had happened. Seiler has been unable to give an even remotely credible explanation why she showed this remarkable restraint in the face of so strong an expression of suspicion. Simply pointing out that her father, who is over seventy, had advised her not to take any steps against Oestreicher does not make more plausible her restraint shown in the face of the grave accusation made in public.
The statements made by Hans Zeuschel, assistant inspector of the criminal police, show that the two defendants did not admit from the very beginning the existing sexual situation as being beyond reproach. The fact that Seiler admitted the caresses bestowed on Katzenberger only after having been earnestly admonished, and the additional fact that Katzenberger, when interrogated by the police, confessed only when Seiler’s statements were being shown to him, forces the conclusion that they both deemed it advisable to keep secret the actions for which they have been put on trial. This being so, the court is convinced that the two defendants made these statements only for reason of opportuneness intending to minimize and render harmless a situation which has been established by witnesses’ testimony.
Seiler has also admitted that she did not tell her husband about the caresses exchanged with Katzenberger prior to her marriage—all she told him was that in the past Katzenberger had helped her a good deal. After getting married in July 1939 she gave Katzenberger a “friendly kiss” on the cheek in the presence of her husband on only one occasion, otherwise they avoided kissing each other when the husband was present.
In view of the behavior of the defendants toward each other, as repeatedly described, the court has become convinced that the relations between Seiler and Katzenberger which extended over a period of 10 years were of a purely sexual nature. This is the only possible explanation of the intimacy of their acquaintance. As there were a large number of circumstances favoring seduction no doubt is possible that the defendant Katzenberger maintained continuous sexual intercourse with Seiler. The court considers as untrue Katzenberger’s statement to the contrary that Seiler did not interest him sexually, and the statements made by the defendant Seiler in support of Katzenberger’s defense the court considers as incompatible with all practical experience. They were obviously made with the purpose of saving Katzenberger from his punishment.
The court is therefore convinced that Katzenberger, after the Nuernberg laws had come into effect, had repeated sexual intercourse with Seiler, up to March 1940. It is not possible to say on what days and how often this took place.
The Law for the Protection of German Blood defines extra-marital sexual intercourse as any form of sexual activity apart from the actual cohabitation with a member of the opposite sex which, by the method applied in place of actual intercourse, serves to satisfy the sexual instincts of at least one of the partners. The conduct to which the defendants admitted and which in the case of Katzenberger consisted in drawing Seiler close to him, kissing her, patting and caressing her thighs over her clothes, makes it clear that in a crude manner Katzenberger did to Seiler what is popularly called “Abschmieren” [petting]. It is obvious that such actions are motivated only by sexual impulses. Even if the Jew had only done these so-called “Ersatzhandlungen” [sexual acts in lieu of actual intercourse] to Seiler, it would have been sufficient to charge him with racial pollution in the full sense of the law.
The court, however, is convinced over and above this that Katzenberger, who admits that he is still capable of having sexual intercourse, had intercourse with Seiler throughout the duration of their affair. According to general experiences it is impossible to assume that in the 10 years of his tête-a-tête with Seiler, which often lasted up to an hour, Katzenberger would have been satisfied with the “Ersatzhandlungen” which in themselves warranted the application of the law.
III
Thus, the defendant Katzenberger has been convicted of having had, as a Jew, extra-marital sexual intercourse with a German citizen of German blood after the Law for the Protection of German Blood came into force, which according to section 7 of the law means after 17 September 1935. His actions were guided by a consistent plan which was aimed at repetition from the very beginning. He is therefore guilty of a continuous crime of racial pollution according to sections 2 and 5, paragraph 11 of the Law for the Protection of German Blood and German Honor of 15 September 1935.
A legal analysis of the established facts shows that in his polluting activities, the defendant Katzenberger, moreover, generally exploited the exceptional conditions arising out of wartime circumstances. Men have largely vanished from towns and villages because they have been called up or are doing other work for the armed forces which prevents them from remaining at home and maintaining order. It was these general conditions and wartime changes which the defendant exploited. As he continued his visits to Seiler’s apartment up to spring 1940, the defendant took into account the fact that in the absence of more stringent measures of control his practices could not, at least not very easily, be seen through. The fact that her husband had been drafted into the armed forces also helped him in his activities.
Looked at from this point of view, Katzenberger’s conduct is particularly contemptible. Together with his offense of racial pollution he is also guilty of an offense under section 4 of the decree against public enemies. It should be noted here that the national community is in need of increased legal protection from all crimes attempting to destroy or undermine its inner solidarity.
On several occasions since the outbreak of war the defendant Katzenberger sneaked into Seiler’s flat after dark. In these cases the defendant acted by exploiting the measures taken for the protection in air raids and by making use of the black-out. His chances were further improved by the absence of the bright street lighting which exists in the street along Spittlertorgraben in peacetime. In each case he exploited this fact being fully aware of its significance, thus during his excursions he instinctively escaped observation by people in the street.
The visits paid by Katzenberger to Seiler under the cover of the black-out served at least the purpose of keeping relations going. It does not matter whether during these visits extra-marital sexual intercourse took place or whether they only conversed because the husband was present, as Katzenberger claims. The motion to have the husband called as a witness was therefore overruled. The court holds the view that the defendant’s actions were deliberately performed as part of a consistent plan and amount to a crime against the body according to section 2 of the decree against public enemies. The law of 15 September 1935 was promulgated to protect German blood and German honor. The Jew’s racial pollution amounts to a grave attack on the purity of German blood, the object of the attack being the body of a German woman. The general need for protection therefore makes appear as unimportant the behavior of the other partner in racial pollution who, however, is not liable to prosecution. The fact that racial pollution occurred at least up to 1939–1940 becomes clear from statements made by the witness Zeuschel to whom the defendant repeatedly and consistently admitted that up to the end of 1939 and the beginning of 1940 she was used to sitting on the Jew’s lap and exchanging caresses as described above.