Reengineering the Weimar Republic (2)

SiPoHis responsibilities were so enormous and his objectives were so grandiose that Adolf Hitler simply could not afford any political opposition. Consequently, he needed a powerful national political police force that will make sure that all political opposition is eliminated in the shortest possible and never ever “returns from the dead”.

One of his enormous responsibilities was to radically increase material and emotional well-being of Germans. To achieve this objective, he obviously had to radically bring down street crime and ideally to eliminate organized crime altogether. And keep it that way, of course. Which required a very powerful national criminal police force.

He faced a very serious obstacle – traditionally, law enforcement functions in Germany were relegated to local, municipal and state (Land) governments. This tradition was so entrenched that it took him more than three years to establish the genuinely national police force that will combine political, criminal and order police.

On June 17th, 1936, Hitler signed into law the decree of the unification of all police forces in Germany and appointed SS-Reichsführer Heinrich Himmler to the position of Chief of German Police.

In this position Himmler was nominally subordinate to Wilhelm Frick (Reich Interior Minister), but as Reichsführer-SS, he answered only to Hitler personally. By that time the SS was already far more powerful than the Interior Ministry (the latter being just a typical civilian bureaucracy) so it is no surprise at all that in no time all German police forces (all three of them – political, order and criminal) – were de-facto absorbed into the SS.

Himmler divided his police empire into two components – Security Police (Sicherheitspolizei – SiPo) that united Gestapo (political police) and Kripo (criminal police) into a single organization and Order Police (Ordnungspolizei – OrPo).

SiPo was functionally identical to the FBI (which was rumored to be Himmler’s inspiration); only in Nazi Germany, unlike in the United States there was no local, municipal or even state police force after 1936. OrPo included not only uniformed police, but also all emergency response organizations, including fire brigades, coast guard, factory security guards, civil defense, etc.

In addition, Himmler had under his command another organization that performed security functions, only for the SS and NSDAP, not the Nazi State. It was the SS Intelligence Service (Sicherheitsdienst – SD).

It had two branches. The first one was domestic intelligence (Inland-SD), a rough equivalent of present-day BfV (German Federal Office for the Protection of the Constitution (German – Bundesamt für Verfassungsschutz). The second one was foreign intelligence (Ausland-SD), a rough equivalent of present-day CIA or MI-6.

The most “functionally rich” (by far) was Ordnungspolizei (OrPo). It performed thirteen police and related functions and thus included the following components (departments):

  1. Administration was (among other responsibilities) the command authority for civilian law enforcement groups, which included the Gesundheitspolizei (health police), Gewerbepolizei (commercial or trade police), and the Baupolizei (building police).
  2. State protection police was state uniformed police in cities and most large towns, which included police-station duties and barracked police units for riots and public safety.
  3. Municipal protection police was a municipal uniformed police in smaller and some large towns. Although fully integrated into the Ordnungspolizei-system, its police officers were municipal civil servants. The civilian law enforcement in towns with a municipal protection police was not done by the Verwaltungspolizei (central OrPo office), but by municipal civil servants. Until 1943 they also had municipal criminal investigation departments, but that year, all such departments with more than 10 detectives, were integrated into the Kripo.
  4. Gendarmerie (state rural police) were tasked with frontier law enforcement to include small communities, rural districts, and mountainous terrain. With the development of a network of motorways or Autobahnen, motorized gendarmerie companies were set up in 1937 to ensure the traffic safety.
  5. Traffic police (was the traffic-law enforcement agency and road safety administration of Germany. The organization patrolled Germany’s roads (other than motorways which were controlled by Motorized Gendarmerie) and responded to major accidents. The traffic police was also the primary escort service for high Nazi leaders who usually traveled (often covering great distances) by automobile rather than by train or by aircraft.
  6. Water police was the equivalent of the coast guard and river police. Tasked with the safety and security of Germany’s rivers, harbors, and inland waterways, the group also had authority over the SS-Hafensicherungstruppen (“harbour security troops”) which were Allgemeine-SS units assigned as port security personnel.
  7. Fire police consisted of all professional fire departments under a national command structure.
  8. Freiwillige Feuerwehren, the local volunteer civilian fire brigades. At the height of the Second World War, in response to heavy bombing of Germany’s cities, the combined fire police and Freiwillige Feuerwehren numbered nearly two million members.
  9. Fire Departments – volunteer fire departments, conscripted fire departments and industrial fire departments were auxiliary police subordinate to the Ordnungspolizei.
  10. Security and Assistance Service – emergency response force, roughly equivalent to FEMA in the United States if viewed together with Technical Emergency Corps (TeNo) – a corps of engineers, technicians and specialists in construction work that in 1937 became a technical auxiliary corps of the German police.
  11. Radio protection (Funkschutz) was made up of SS and Orpo security personnel assigned to protect German broadcasting stations from attack and sabotage. The Funkschutz was also the primary investigating service which detected illegal reception of foreign radio broadcasts.
  12. Postal protection (Postschutz) comprised roughly 45,000 members and was tasked with the security of Germany’s Reichspost, which was responsible not only for the mail but other communications media such as the telephone and telegraph systems.
  13. Railway police (Bahnschutzpolizei) tasked with ensuring the security of passenger and freight railway traffic and railway infrastructure.
  14. Factory protection police (Werkschutzpolizei) were the security guards of Nazi Germany. Its personnel were civilians employed by industrial enterprises, and typically were issued paramilitary uniforms.

The only problem with thus structure was that it artificially separated Gestapo and Kripo with the SD intelligence agency. Although the latter was formally the Party, not the state organization, in reality it served both supplying both components of SiPo with vital domestic and foreign intelligence information.

Hence, it was not a surprise at all that on September 27th. 1939 Himmler combined Gestapo, Kripo and SD into Reich Main Security Office (Reichssicherheitshauptamt – RSHA). Gestapo became Amt IV (Department IV), Kripo Amt V, Inland-SD Amt III and Ausland-SD Amt VI.

The RSHA was often abbreviated to RSi-H in correspondence to avoid confusion with the SS-Rasse- und Siedlungshauptamt (RuSHA; “SS Race and Settlement Office”) which was established earlier – in 1931 (even before Nazis came to power).

Reengineering the Weimar Republic (1)

IMG_0671On March 23rd, 1933, the German parliament (both Reichstag and Reichsrat chambers) passed the Enabling Act. After it was signed into law by President Paul von Hindenburg on the same day, it gave Adolf Hitler enormous, almost absolute power in Germany.

With this power came enormous responsibilities. Not just do away with unemployment, but guarantee every able-bodied man the job that will earn sufficient income to provide for himself, his homemaking wife and children.

Radically improve financial, material, emotional and spiritual well-being of Germans, making German people a genuinely happy nation. Provide German workers with a solid “safety net” of unemployment, disability, health insurance and sufficient retirement income.

And, of course, make sure that the horrors of hunger of 1917-19, hyperinflation of 1921-23 and the Great Depression of 1929-33 never happen again.

Restore the power and the glory of Germany by making it again an economic, political and military superpower. Return territories taken at gunpoint by the “Versailles criminals” in 1920. Unite all German lands (including Austria) into Ein Reich.

Transform German people into a nation of Übermenschen – “superhuman beings”. Make Germany self-sufficient in foodstuffs, natural and financial resources. Provide the German people with economic, social and political stability. Make Germany a genuine “equal opportunity nation” where anyone can achieve anything regardless of which class or social group one has been born into.

But, first and foremost, fight and win the existential war with the Bolshevist Soviet Union and thus save Germany, Europe and the whole Western civilization from being conquered and destroyed by the “Red Plague”.

Adolf Hitler incorrectly believed that this existential war was the “racial war” with the “Jewish race” (that existed only in his imagination). Consequently, he sincerely (and incorrectly) believed that it was his responsibility to make Germany and all German-controlled territories Judenrein – “clean of Jews”.

To fulfil these enormous, mind-boggling responsibilities and achieve these grandiose objectives, he had not only to transform a tiny Reichswehr into a mighty Wehrmacht making the latter the most powerful, efficient and fearsome military force in the entire world, but to transform the German state and the German society into a mighty and invincible army based on the omnipresent and all-important Führerprinzip.

In other words, he had to radically reengineer the Weimar Republic into the army-style Führerstaat. Not an easy job to do as the former in 1933 was very much a federative state where the governments of the Lands (German states) possessed significant political and economic powers. For starters, there was no national police force – all law enforcement functions were performed by local, municipal and Land police agencies.

To remedy that unacceptable situation, on April 7th, 1933 (just two weeks after the Enabling Act was passed), Adolf Hitler re-established the Office of Reichsstatthalter (Imperial Governor), radically expanding the functions bestowed on this office in the Imperial Germany.

This law was established by the Second Law for Synchronization of the States with the Reich (Zweites Gesetz zur Gleichschaltung der Länder mit dem Reich) which assigned one Reichsstatthalter (governor) to each German states.

Doing away with the state, local and municipal political freedoms and powers and essentially transforming the federative Weimar Republic into a centralized Third Reich. For all practical purposes, killing the former.

In Prussia, the largest of the German Lands, Hitler took direct control by appointing himself as Reichsstatthalter. However, he delegated his authority to Hermann Göring, who had been installed as Prussian prime minister without an election. The Prussian provinces were administered by an Oberpräsident, usually the local Gauleiter (the provincial NSDAP leader).

Formally, the Reichsstatthalters had purely political, not administrative, functions. According to the abovementioned law, they were tasked to “carry out the general policy of the Chancellor” (i.e. Adolf Hitler).

In reality, they were given complete administrative powers over the state governments: appointing and dismissing the state minister-president (head of state government); dissolving the state parliament and calling new elections; issuing and announcing state laws (making the abovementioned law the “Enabling Act” for the state level); appointing and dismissing key state officials and judges; and even granting amnesty.

Thus, the Enabling Act and the Second Law for Synchronization of the States with the Reich de-facto transformed Germany from a federal republic into a highly centralized state.

To make it de-jure, on January 30th, 1934 (exactly a tear after he was appointed Chancellor) Adolf Hitler signed into law the Law for the Reconstruction of the Reich (Gesetz über den Neuaufbau des Reiche).

This law – for the first time in German history – formally de-federalized the Reich. The state parliaments were abolished, and their powers were transferred to the Reich government. The Reichsstatthalters were made responsible to the Reich Minister of the Interior. For all intents and purposes, the once powerful and semi-autonomous states were reduced to mere provinces.

To expand and strengthen his control over the state governments, exactly a year later (it appears that he really liked that date), Adolf Hitler signed into law The Reich Governors Law (Reichsstatthaltergesetz).

This law essentially stripped the heads of state governments of just about all their executive powers transferring the latter to the Reichsstatthalters. Formally, the governors the authority only to “inform” the heads of provincial governments about the guidelines and the recommended measures to fulfill them. In practice, this “information” was an order – cut and dry, loud and clear, plain and simple.

For all practical purposes, this law resulted in Reichsstatthalters taking over just about all functions of state government, and gave the governors power to appoint the mayors of all towns and cities with populations fewer than 100,000. Giving them (and thus the Reich Interior Ministry) almost total control over local government as well.

The Interior Minister directly appointed the mayors of all cities with populations greater than 100,000 (though Hitler reserved the right to appoint the mayors of Berlin and Hamburg himself if he deemed it necessary).

After the Anschluss of Austria in 1938, the latter (at that time also a federal republic) was incorporated in a centralized totalitarian Ein Reich using the same system of Reichsstatthalters and the corresponding laws which now were in force in the formerly Austrian territory as well.

 

Comments to Charts on Executions

A chart is definitely more valuable than a thousand words so let’s take a look at some charts on death penalty in Nazi Germany and the Soviet Union (to put the former into a proper perspective).

From 1907 to 1932 (i.e. including World War I which significantly increased the number of death sentences as treason became much more dangerous), Germany (the Second Reich and the Weimar Republic) together issued 1547 death warrants, of which 393 (just over one in four and roughly sixteen a year) were executed.

In the last years of the Weimar Republic (which grew more and more lenient towards capital offenders), executions were in the single digits – and always for aggravated murder. In fact, in the latter only a murder in the first degree (i.e. with aggravating circumstances) carried a death sentence.

Nazis not only returned high treason to a list of capital crimes (which was the case in the Imperial Germany), but drastically expanded that list with the Reichstag Fire Decree.

Which now included conspiracy to commit murder of a government official of a national or state level, armed insurrection (“disturbance of the peace”), arson, acts of terrorism (even if they did not lead to a loss of life) and a political kidnapping.

Hence it is no surprise at all that the number of executions in Germany in 1933 increased tenfold compared to the previous year. Practically all death sentences were handed out for political crimes (mostly for “high treason”) by the newly established People’s Court and other special political courts.

Interestingly enough, although the laws of 1934 and 1936 further expanded the list of political crimes punishable by death, it lead to a relatively small increase in the number of executions from 1934 to 1939. Apparently the system of eliminating political opposition and prevention of resistance activities worked well enough.

The war predictably changed everything.

The next chart reflects a radical change in death sentences passed by the Nazi special political courts with the beginning of World War II. The dominant offence was “defeatism” and “undermining the war effort”.

The Nazi logic was simple and straightforward (as were their motives). They completely (and erroneously) believed that the only root cause of the defeat of Germany in World War I was the “stab in the back” by defeatists and traitors (and, of course, Jews).

Jews were dealt with by an entirely different system (of forced emigration and later by extermination by Einsatzgruppen death squads and subsequently in the death camps) and other “internal enemies” were to be deterred (i.e. stopped cold) by ruthless death sentences handed out by the special courts.

However, to put these numbers in the right perspective, it is necessary to compare them with the number of executions in the Soviet Union (just as I did with the number of inmates in concentration camps). Obviously, both before the war (in 1933-39) and in wartime.

Even without truly horrendous jump during the Great Purge (the number of executions in the USSR went up 300 times) it is evident that prior to the World War II the Communist regime was far, far more murderous than the Nazi one (in the USSR, like in Germany, the overwhelming majority of executions were for political crimes).

The Great Purge of 1937-38 was an outlier so I did not include these numbers (353,074 and 328,618 executed respectively) into this chart. Which is more than impressive even without these numbers.

Even if we adjust for the differences in population size (at that time the population of the Soviet Union was roughly 2.5 times that of the Nazi Germany), the picture will not change a bit.

The next chart is actually quite informative. The year 1939 basically continues the enormous difference between the Bolshevist and the Nazi regimes at peacetime, the former being far more murderous than the latter.

The next year the Nazi Germany is at war but the Soviet Union is not. In addition, the Great Purge in the USSR is finally over. Consequently, the number of executions in the Third Reich goes way up (by an order of magnitude) and in the USSR goes down by 35%. As the result, on a relative scale (taking into account the difference in population), in 1940 the Nazis actually carried out more executions than the Bolsheviks.

In 1941, the Soviet Union enters the war and experiences the jump in the number of executions similar to the one experienced by the Nazi Germany in 1940 (by a factor of five). The German blitzkrieg on the Eastern front fails and its victory in the World War II is in doubt for the first time; so it is not a surprise at all that the number of executions goes up almost by half (by 44%, to be more precise).

In 1942, the situation for Wehrmacht deteriorates further, the German population begins to experience wartime fatigue… and the number of executions in the Third Reich predictably increases by about 40% (about as much as it did in 1941).

The situation in the Soviet Union changes far more drastically. During the first half of 1942, the Red Army continued to suffer humiliating defeats and enormous losses of territory, personnel and military hardware.

On July 28th, 1942 Soviet dictator Joseph Stalin was forced to issue an infamous (and very much draconian) Order No. 227 (aptly nicknamed “No Step Back!”).

Almost a million (!) Red Army soldiers and officers was court-martialed; 135,000 were executed by a firing squad. Half of those whose lives were spared were sent to penal battalions and penal companies (with about 50% chance to be killed in action) and half was imprisoned in the GULAG (which was not much better).

Hence it is no surprise that number of death sentences meted out by Soviet civilian courts tripled from 8011 in 1941 (half of which was the time of peace) to a whopping 23,278 in 1942.

After the Battle for Stalingrad the situation on the Eastern front changed radically for both sides. For the Red Army for the best and for the Wehrmacht for the worst. Hence the number of carried out death sentences in the Third Reich predictably exceeded the number of executions in the Soviet Union (even without adjusting for the difference in the size of population). 1944 was largely the same for both sides.

Death of Ronald Freisler

The vivid personification of the life and death of the People’s Court was Dr. Roland Freisler – the flamboyant (to put it mildly) Judge President of the court in 1942-45. A born showman, he made just about every session of the court a show which got more and more depraved (and even disgusting) every month.

Even Dr. Ernst Kaltenbrunner, head of the RSHA (and a lawyer himself), complained in a memorandum that Freisler’s “cheap manner did not “correspond entirely to the dignity of the highest German court of justice”.

By that time there was no dignity left. On the morning of February 3rd, 1945, Freisler was conducting a Saturday session of the People’s Court when USAAF strategic bombers attacked Berlin (which they did on an almost daily basis).

Hearing the air-raid sirens, Freisler hastily adjourned the court and ordered that the prisoners before him be taken to an air-raid shelter, but stayed behind to gather apparently important files before leaving. A sudden direct hit on the court-building at 11:08 caused a partial internal collapse, with Freisler being crushed by a masonry column and killed while still in the courtroom.

Apparently nobody regretted his death. Luise Jodl, then the wife of General Alfred Jodl, recounted more than 25 years later that she had been working at the Lützow Hospital when Freisler’s body was brought in, and that a worker commented, “It is God’s verdict.” According to Mrs. Jodl, “Not one person said a word in reply.

Freisler’s death saved one Fabian von Schlabrendorff, a July 20th Plot member who was on trial that day and was facing a certain death sentence and almost immediate death by hanging on a piano wire (a cruel method of executing traitors designed by Adolf Hitler himself). Ironically, after the war von Schlabrendorff became… a judge of the Constitutional Court of the Federal Republic of Germany.

Volksgerichtshof – the “People’s Court”

Roland_FreislerVolksgerichtshof was created by the new treason law enacted on April 24th, 1934 which replaced all relevant paragraphs (80-93 of the Weimar criminal code) gave this special court it jurisdiction over all crimes of treason. Which, interestingly enough, included black market activities.

The idea behind this law was to create a powerful deterrent to any opposition activities; so it is no surprise that it made just about all opposition activities punishable by death.

Which was way too “excessive force” as by that time just about all opposition was demoralized, detained in concentration camps (and even mostly transformed into loyal supporters of the regime) and thus all but destroyed.

Hence, long prison sentences (not even a life sentence) would have been sufficient for achieving Hitler’s fundamental objective – annihilation of all opposition to the Nazis.

But Hitler was a quintessential soldier who (a) hated traitors (and he viewed all his political opponents as traitors) with all his mind, heart and soul; and (b) believed that he was already fighting a war – and in the war the only punishment for traitors was death.

Hence the death penalty applied to preparation for treason (any work with any anti-Nazi organization can be viewed as such); the establishment or re-establishment of such organizations (or organizations deemed as such by the Gestapo, prosecution and the court); acts of sabotage; anti-Nazi radio broadcasts; printing, circulation or smuggling into Germany of forbidden literature and not only the betrayal of “state secrets”, but also the attempt to discover such secrets.

Preparation for high treason included cases in which the defendant had received anti-Nazi leaflets from someone and had neglected to turn them over to the Gestapo; likewise when the accused had a discussion with a person opposed to Nazism without making an immediate denunciation to the political police.

“Decree to Protect the Government of the National Socialist Revolution from Treacherous Attacks” and the “Law against insidious Attacks upon the State and Party and for the Protection of the Party Uniform” made virtually all public and private criticism of the Nazi government a criminal offense punishable by imprisonment up to five years.

The official wording of this law, made illegal only the untrue statements, but its interpretation by the special courts did not allow the defendant to prove that his statement was true.

It is estimated that about 80% of all political trials in 1934-38 (i.e. pre-war) were based on this law. It was especially applied against Catholic and Protestant priests, who had spoken publicly against the government’s interference in church matters. Less prominent victims of the same law were old men and women who were grumbling against the Nazi government.

It is commonly believed that the Volksgerichtshof was created in response to his dissatisfaction at the outcome of the Reichstag Fire Trial (“the Leipzig Trial”), in which all but one of the defendants (Marinus van der Lubbe) were acquitted.

Van der Lubbe was found guilty and sentenced to death (which made no sense at all as no one was even injured, let alone died in the Reichstag fire). Two weeks after the verdict, on January 10th, 1934 (three days before his 25th birthday) he was guillotined in a Leipzig prison yard.

In 1981, a West German court posthumously overturned Van der Lubbe’s 1933 conviction and found him not guilty by reason of insanity (the only verdict from the multitude on the Reichstag fire that made sense).

Ernst Togler (the last chairman of the KPD faction in the German Reichstag) and three Bulgarian Communists (Georgi Dimitrov, Blagoi Popov, and Vasil Tanev) were found not guilty by lack of evidence by then still independent from the Nazis German Supreme Court (Reichsgericht).

The Bulgarians were immediately deported to the Soviet Union and Togler was (predictably) immediately detained in a concentration camp by the Gestapo under “protective custody” order and after the year of incarceration… ended up working for the Nazis. Becoming just one of the vivid examples of the efficiency of Nazi “re-education” system.

For five years he worked for the Gestapo and in 1940 he was transferred to the Nazi Propaganda Ministry and began working on anti-Bolshevik propaganda at the behest of Joseph Goebbels. Later that year, Torgler was brought back to Gestapo to work in Czechoslovakia on the staff of no other than the “butcher of Prague” Reinhard Heydrich (!).

There is, however, a major problem with this theory. Although Adolf Hitler did publicly voice (and very loudly so) his dissatisfaction with the outcome of the Leipzig Trial, he was smart enough to understand that it was the only possible outcome of the trial.

For a very simple reason – he read the official report prepared by Rudolf Diels – the director of Prussian political police. Report that proved beyond the reasonable doubt that Marinus van der Lubbe was the lone arsonist.

However, after the Reichstag Fire Decree publicly put the blame for the fire on German and foreign Communists the Nazis had no other choice but to bring the case before a still-independent Reichsgericht (even being well-aware of the inevitable verdict). Which proves beyond the reasonable doubt that Nazis had nothing to do with this arson.

Reichstag Fire Trial was one-of-a-kind and was of interest to the Nazis purely for propaganda purposes. The objective of the Volksgerichtshof was to suppress political opposition – a fundamentally different objective.

Hence, it has nothing to do with the outcome of the Leipzig Trial and would have been established anyway – fire or no fire.

The Volksgerichtshof was to have three chambers, two for the prosecution of high treason, one for the prosecution of “regular” treason. Two members of each chamber were to be professional jurists, and three members were to be “lay judges,” selected from party and military organizations (idea that surprisingly had a precedent in the Weimar judicial system).

All judges were appointed for tenures of five years. Defense attorneys would have to get special permission to appear before the court, and they would be subject to disqualification even after the beginning of a trial.

Although the Nazis intended to make the Volksgerichtshof a reliable instrument for political trials, their use of professional jurists on the court indicated that they were hesitant to violate the tradition of an independent judiciary.

For a very simple reason – the needed the support of the judicial community as replacing all (or even the majority) of judges with hastily trained National-Socialists was impossible for purely technical reasons. Thus the Nazis had no choice but to develop a partnership of sorts with the community of professional jurists.

Partnership that required respect for the feeling of traditionally conservative (but by no means national-socialist) jurists. Although designated a “special court,” the Volksgerichtshof was an entirely constitutional organization (technically, the Weimar Constitution was still very much in force in Nazi Germany).

Weimar constitution forbade the creation of courts for the trial of individually determined cases, but not special courts for trial of general categories of cases. The Reichstag had already set up such a court in 1922, when in response to the murder of Walther Rathenau it established the special-purpose Staatsgerichtshof and gave it jurisdiction over political assassinations.

Six lay judges had sat on the nine-member Staatsgerichtshof. As for the Volksgericht’s right to dis-qualify defense attorneys, lawyers representing members of the Communist party had to seek special approval to appear before the Reichsgericht during the Weimar period, and this practice was continued in the Federal Republic of Germany after the Second World War.

The official commentary on the law of April 24, 1934 saw the Volksgerichtshof in very restricted terms, as a means of making law enforcement (i.e. fighting political crimes) more efficient. Commentaries tended more often to compare the court with the army, the favored institution of conservatives, than to link it with the Nazi movement: the court would fight internal enemies just as the army fought external ones.

Evidently his views were shared by some of the Volksgericht’s members. The court’s first published decisions were so cautious that they came under attack from official Nazi quarters.

Initially, the People’s Court was supposed to be a temporary institution; however, in April of 1936 a decision was made to give it a permanent status. The official register of all crimes was transferred to the Volksgerichtshof; the court received an independent prosecution staff and an independent press agency; the ambitious Otto Georg Thierack (the future Reich Minister of Justice) was appointed president of the court.

Contrary to a popular misconception, Volksgericht’s members were not radical Nazis deliberately undermining traditional law. They were fairly conventional conservative jurists following general legal trends.

Which after the outbreak of the Second World War (and especially after the invasion of the Soviet Union in June of 1941) made all hell break lose. First, jurisdiction of the court was extended to cover crime committed by foreign nationals.

Then the prosecution was allowed to appeal just about all not guilty verdicts and verdicts that were too lenient (in prosecutor’s opinion). These appeals in 70% cases resulted in death sentences.

And, finally, the Volksgerichtshof de-facto adopted essentially Stalinist principle “it is better to convict ten innocents…”. For example, in 1944 one Leopold Felsen Felsen was accused by his wife of listening to foreign broadcasts. It was brought to the attention of the Special Court that she had been trying to get rid of him since 1939.

Felsen’s daughter, after testifying against him, admitted in court that she had committed perjury because her mother had threatened to kick her out of the house. The Volksgerichtshof nevertheless condemned Felsen to death.

Hence it is no surprise at all that in 1942 the People’s Court stopped publishing its decisions thus becoming essentially a Secret People’s Court. But the worst was yet to come.

After the Stalingrad disaster in early 1943, the Volksgerichtshof began to prosecute cases of defeatism in increasing numbers. The immediate result of this was a colossal case overload was the inevitable degeneration of procedure (which transformed the institution into essentially a kangaroo court); the long-term result was that the judges of the court, for the first time since its establishment, found themselves literally prosecuting their neighbors.

Although both the Volksgerichtshof and the Special Courts were exempt from the Hitler’s decision to draft 28,000 men from the legal system into the Wehrmacht and the court had been expanded considerably since the beginning of the war, it could not keep pace with this kind of overload. The enormous increase in the number of cases required the corresponding increase in the number of judges.

Which was a very serious problem as all judges were conservative jurists who were very uncomfortable (to put it mildly) to preside over kangaroo courts and to pass draconian sentences on ordinary folks found guilty of minor offenses that were no threat to the Nazi system or war effort.

In 1943, only 123 (3.7%) out of 3,338 defendants tried in the Volksgerichtshof, were found not guilty. Interestingly enough, the numbers for the current Russian criminal court system are very similar these days. 1,662 (just under 50%) were sentenced to death, the remaining got (usually long) prison sentences.

Thus overloading began to lead to the conviction of people innocent even in the Volksgericht’s understanding of the law. Judges increasingly found themselves condemning upper-class gentlemen (and ladies) to death for making statements that they might have made themselves. Which for them was deeply uncomfortable, to put it mildly.

One Volksgerichtshof  member complained in June 1943:

“Death sentences of the Volksgericht were much too rushed. Often nothing was said about the personal relationships of the defendant; . . . more seriously, the consideration of evidence-especially with respect to the nature of the act, even when disputed by the – defendant-is often exhausted in short statements made before the investigator or police, or even in the mere opinions and prejudices of the court. A critical appraisal of such decisions is hardly possible. A recommendation of execution presupposes complete confidence in the court. But such confidence is shattered when . . . facts later become known that the defendant’s statements-only recently declared false-appear very probable.”

Not surprisingly, open resentment (and even resistance) made itself manifest and spread through the legal system which predictably made it very difficult for the Nazis to find reliable judges (or any judges for that matter).

In short, by the end of 1944, the system of special courts (including the People’s Court) essentially collapsed in a legal sense and became almost indistinguishable from the Stalinist system which consisted of “kangaroo courts” since almost the very beginning.

 

The Sondergerichte – Special Political Courts

Фемида

The fundamental principle of criminal justice system in Western democracies is: “it is far better to let ten guilty individuals to walk free than to convict one innocent”. The fundamental principle of Soviet criminal “justice” system under Stalin was exactly the opposite: “it is far better to convict ten innocent individuals than to let one guilty person walk free”.

For Adolf Hitler and the Nazi neither principle was acceptable. They were already facing almost impossible odds in their Quantensprung project so they could not afford any opposition at all. And thus simply could not allow “ten guilty to walk free”.

On the other hand, they needed to radically increase (more than double) the support of the German population for their ideology, their policies, their Party, their State and their projects – from just under 44% that they received in March 1933 national elections to over 90%. Hence they could not “convict ten innocent individuals” either.

Prevention of the resistance activities was largely taken care of by the Reichstag Fire Decree. It was implemented in practice with Schutzhaft (“protective detention” order) used by Gestapo to detain indefinitely without trials individuals deemed to present a political security theat.

And with Vorbeugungshaft (“preventative detention order”) used by Kripo to prevent regular crimes by detaining indefinitely and without court order habitual and professional criminals, gang members and members of organized crime.

Great care has been taken by both Gestapo and Kripo to make sure that only genuine political opponents of the regime and genuine criminals were sent to concentration camp (i.e. that no innocent person ended up behind the barbed wire).

Hence all denunciations (80% of Gestapo investigations started with one) were thoroughly investigated and German citizens were strongly discouraged by the political police from making false denunciations.

However, there was still a very important question – what to do with political criminals (i.e. resistance activists) after the fact. In other words, after the crime has been committed.

Proving their guilt beyond the reasonable doubt (another fundamental principle of Western – and Weimar – criminal justice system) was not acceptable as it would have inevitably allowed way too many political criminals to walk free while one such case for the Nazis was one too many.

Hence that latter (predictably) set up special purpose political courts (Sondergerichte) that operated under a fundamentally different principle (“more likely than not”) thus severely limiting the rights of defendants – and the chances of a guilty one to walk free. By the end of 1933, there were 26 such courts; by the end of 1942 its number almost tripled to 74.

Both branches of Nazi criminal justice – the one that dealt with regular crime and the one that dealt with political one – had a very different objective from both Western and the Stalinist system.

The former was designed to protect the rights of the accused to the maximum extent possible and to avoid conviction the innocent (not to make sure that “the justice was done” as is commonly and erroneously believed).

The latter had a much more direct and primitive objective – to scare the Soviet citizen into a total submission to the Soviet State and personally to the “Red Emperor” Joseph Stalin.

It other words, to transform them (through fear instilled in their hearts, minds and souls by the Soviet repressive system) into obedient slaves. Which led to a very unexpected result for the Soviet leader and his Bolshevist state – the catastrophic defeat of his invasion army in the summer and fall of 1941 (the most spectacular military disaster in human history).

The objective of the Nazi system was to eliminate all crime – both regular and political. The Western system could not do it as the requirement to prove guilt beyond the reasonable doubt makes it completely impossible to eradicate both the organized crime and political extremism and violence (i.e. terrorism).

The Stalinist system could not do it either as it was designed for arbitrary mass terror, not for careful targeting the criminals and criminal organizations to be eliminated.

Consequently, if the Western nations ever decide to eliminate organized criminal activities such as racketeering, money laundering, human trafficking, illegal drug production and distribution as well as political extremism, violence and terrorism (from Islamic to white supremacist), it will have no other choice but to adopt the system of Nazi special purpose courts (and possibly even preventive custody). Adapting them, obviously, to the realities of the modern world.

The legal basis for the Sondergerichte (Adolf Hitler personally insisted that all anti-resistance activities must be legal) was created by the Reichstag Fire Decree and expanded by the three laws passed specifically for the purpose:

  • Decree to Protect the Government of the National Socialist Revolution from Treacherous Attacks (enacted on March 21st, 1933),
  • Law for the Guarantee of Peace Based on Law (October 13th, 1933)
  • Law against insidious Attacks upon the State and Party and for the Protection of the Party Uniform (December 20th, 1934)

After the beginning of the World War II the rights of the Sondergerichte were predictably expanded.

A special court had three judges, and the defense counsel was appointed by the court. Cases were prepared in exactly the same way as in the “normal” Western system of criminal justice. The whole process is very realistically depicted in the movie that I already mentioned – “The Last Days of Sophie Scholl”.

Gestapo investigated political crimes and if the investigating officer decided there was enough evidence for a conviction (it was not always so – hence lots of cases were dropped), referred the case to a prosecutor.

Who reviewed the case and if he agreed with the Gestapo (which happened usually but not always) sent it (and the defendant) to the Sondergerichte. And this is when the procedure became fundamentally different from both the Western and the Stalinist system.

In the latter both the prosecutor and the criminal court (or what passed for the latter in the Soviet Union) were essentially rubber stamps for the decision made by the officer of the political police (Cheka/GPU/NKVD/MGB/KGB).

No one cared about the truth (and thus about justice) – not the political police, not the prosecution, not the judges, not even the defense council. Contrary to a very popular misconception, neither does anyone in the Western criminal justice system (which often has nothing to do with justice).

Prosecution wants to convict the defendant no matter what as losing cases is bad for prosecutor’s career. Defense wants to make the defendant go free – even when the defense lawyer knows perfectly well that the client is guilty of a horrific murder (i.e. of a rape and murder of a child).

And the judge cares only about “following the law”. Law not justice (it is not always the same thing). Hence, child rapists, horrible murderers, mafia bosses and even serial killers get acquitted “on a technicality” much more often than is commonly believed. And continue committing horrible crimes.

Nazi Sondergerichte were designed (at least in theory) to fix these obvious deficiencies of the Western criminal justice system. In the special court system prosecutor, defense council and judge were supposed to work together to find the truth.

Thus eliminating the fundamental adversarial principle of the Western system and making sure that all three parties involved worked not for or against the defendant (or for the law for that matter).

But for the society that is not interested in the “letter of the law” or even the rights of the defendant. It is interested only in justice being served. In sending the guilty to jail, concentration camp or (in the most severe cases) to the guillotine or the hangman’s noose and in setting the innocent one free.

Unlike the Amtsgerichte (“regular courts”), the Sondergerichte operated according to the “more likely than not” principle. While in cases involving individuals this principle is highly questionable (to put in mildly), in cases involving organized crime activities (street gangs, mafia, etc.) and political crimes (extremism, violence, terrorism, etc.) it is far more efficient in getting the justice served than “proof beyond the reasonable doubt”.

Still, the idea of the judge, prosecution and defense working together (rather against each other) to establish the truth and make sure that the justice is done (instead of the letter of law being followed) is something that the modern society (IMHO) should investigate carefully.

Once the truth (or what passed for the latter in a specific case) was established, the justice was swift. There was no possibility of appeal (not a good idea), and verdicts could be executed at once.

Including the death penalty. Which was not as swift as in the Soviet Union where the condemned could be dead less than half an hour after the verdict, but still swift – the convicted could meet the guillotine in a matter of a few days.

By far the most famous (actually, the only well-known Sondergericht) was the People’s Court (Volksgerichtshof). It was created in April 1934 for dealing with cases of treason or attacks on national or regional government members. Being the “supreme political court” (in a way), Volksgerichtshof took only the most important cases.