“It is agreed that, in consideration of the intended aims of the government for the clearing up of the eastern problems, in future Jews, Poles, gypsies, Russians, Ukrainians are no longer to be judged by the ordinary courts, so far as punishable offenses are concerned, but are to be dealt with by the Reich Leader SS. * * *”
The defendant Rothenberger testified that he was not present when these agreements were made. However that may be, it is clear that they came to his notice shortly thereafter.
Of special significance is the record concerning the establishment of penal laws for Poles and Jews in the annexed eastern territories. On 17 April 1941 the defendant Schlegelberger addressed a letter to the Reich Minister and chief of the Reich Chancellery. In it he states that as soon as the Special Courts were introduced in the eastern territories under the decree of 5 September 1939 he tried to make those “courts with their particularly prompt and energetic procedure centers for combating all Polish and Jewish crime.” He states that “the procedure of compulsory prosecution was rescinded, at is seems intolerable that Poles and Jews should in this way compel the German prosecutor to issue an indictment.” Poles and Jews were also prohibited from raising private actions and accessory actions. He further states:
“On being informed of the Fuehrer’s intention to discriminate in the sphere of penal law between the Poles (and probably the Jews as well), and the Germans, I prepared, after preliminary discussions with the presidents of the courts of appeal and the attorney generals of the annexed eastern territories, the attached draft concerning the administration of the penal laws against Poles and Jews in the annexed eastern territories and in the territory of the former Free City of Danzig.”
Again, he says:
“So far I have been in agreement with the opinion held by the Fuehrer’s deputy, on the fact that a Pole is less sensitive to the imposition of an ordinary prison sentence. Therefore, I had taken administrative measures to ensure that Poles and Jews be separated from other prisoners and that their imprisonment be rendered more severe. Number 3 goes still farther and substitutes for the terms of imprisonment and hard labor prescribed by Reich law other prison sentences of a new kind, viz, the prison camp and the more rigorous prison camp.”
Speaking of the proposed draft prepared by him, Schlegelberger said:
“The part concerned with procedure contains first the special regulations existing up to now of the preliminary decree. In addition, a Pole and a Jew sentenced by a German court is not to be allowed in the future any legal remedy against the judgment; neither will he have a right of appeal, or be allowed to ask that the case be reopened. All sentences will take effect immediately. In future, Poles and Jews will also no longer be allowed to object to German judges on the grounds of prejudice; nor will they be able to take an oath. Coercive measures against them are permissible under easier conditions.”
A memorandum dated 22 April 1941, bearing the same file number as the letter of Schlegelberger, states that Schlegelberger has transmitted the proposed draft, and adds:
“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.”