As far as Reich Germans, who in exceptional cases were not prohibited from participating in the above-mentioned ethnic German organizations, are concerned by this, article 91, paragraph 2 of German Penal Code, is to be taken into consideration.
As far as ethnic Germans are concerned, paragraph 91, section 2 of German Penal Code, is not directly applicable, as ethnic Germans according to formal national law were not German, but Polish citizens. I can only express my opinion in the form of a suggestion, that in the case of the betrayal of ethnic Germans to the foreign police, article 91, paragraph 2 of German Penal Code is to be applied accordingly on the basis of article 2 of German Penal Code (vide People’s Court 2d Senate of 19 May 1938, vs. Wenzel Krippner, document number 14 J 785/37-2 H 22/38; different opinion: People’s Court 3d Senate of 14 June 1938, vs. Walter Zueckert, document number 7 J 105/378-3 L 78/37; decision of 24 October 1940 to quash criminal proceedings in the criminal case, vs. Anton Reiprich, document number 4 J 86/40g).
An offender who has caused, or who wanted to cause ethnic Germans to be punished or otherwise prosecuted by Polish (Czech, or Lithuanian) authorities was hitherto almost never punished, because in such cases the intention, according to articles 88, 89, and 90c of the German Penal Code, i.e., the knowledge that he had acted against the interests of the Reich could not be proved satisfactorily owing to a lack of comprehensive political training and of judgment, article 91, paragraph 2 of the German Penal Code, was considered to be nonapplicable.[498] Such an offender deserves a much heavier punishment, for his dishonorable behavior—behavior which up to now has generally been considered as contemptible in judicial decision and conclusions made by public prosecutors—than, for instance, a person who only apparently was connected with a foreign intelligence service for purposes of treason, but who must be punished according to Article 90c of German Penal Code. The offender nearly always knew that “Germans” were concerned.
Even considering the possibility that a decision, according to article 91, paragraph 2 of German Penal Code, falls into the hands of a foreign government, it would not cause additional attacks against the Reich in foreign affairs, if this decision contains a complete explanation. Such a legal standpoint neither demands the ethnic Germans living on the former borders of the Reich to behave disloyally toward the foreign nation, nor does it take away from the foreign nation the right to exercise a normal police control over the ethnic Germans. This corresponding application according to the above always provides that foreign police control served purposes and measures contradictory to international law and law of minorities. This is especially applicable to the border districts which were taken from the Reich, according to the Treaty of Versailles. Nor does this opinion, for instance, object if single members or groups of ethnic German organizations now and then should have overstepped the bounds of loyalty, for this was not the cause, but the consequence of foreign compulsory measures.
I would consider as improper only the laying down generally and legally of a treatment applicable to treason committed by ethnic Germans, by adding a supplementary regulation to the second paragraph of article 91 of the Penal Code. It is true that consideration regarding foreign policy would oppose this. But on the other hand, in my opinion, the lack of an express regulation of penal law for the protection of ethnic Germans does not prove that article 91, paragraph 2, of the criminal code should be applied in every case. On the contrary, I consider this to be a task for the courts to fill a gap in the law, which has been left open for state political reasons, by creating a law in the appropriate cases.
The basic idea of article 91, paragraph 2 has been expressed as follows in the verdict of the People’s Court 4th Senate of 8 April 1940, against Horst Moses (4 L 2/40):
“The National Socialist State is especially well aware of its responsibility toward its citizens, and of its duty to protect all its members, especially if they are abroad and do not enjoy the full protection of law. Hence, it feels its integrity endangered, even in the case of a conspiracy by a foreign government against a single Reich citizen, and wants to lend the threatened person its legal protection, as far as this is possible, from the home country.”
The Reich made no secret of the fact that with regard to the protection of Germans it does not only claim the right to protect Reich Germans, but also ethnic Germans living on its borders. The Reichstag speech made by the Fuehrer on 20 February 1938, strikes me as fundamental, even if it was directed especially against the then Czechoslovakian Republic. In this speech, he pointed out, among other things:—
“* * * two of the states situated on our frontiers alone have more than ten million Germans * * *.
“The fact that [these persons] were separated from the Reich by constitutional law, cannot deprive [them] of their ethnic political rights (volkspolitische Rechtlosmachung); i.e., the general rights of an ethnic self-determination which, incidentally, were solemnly granted to us as prerequisites of the armistice in Wilson’s Fourteen Points. These rights cannot be disregarded simply because Germans are concerned! In the long run it is impossible for a world power with self-respect to know that they have ethnic comrades [Volksgenossen] at their side who, owing to their sympathy or their ties with the whole population [Gesamtvolk], its fate, and its ideology, are being continually, and gravely harmed. The fact that it is possible, if there is good will, to find ways to reach compromise [Ausgleich] or to ease this suffering, has been proved. But he who tries to prevent such easing in Europe by force will one day invite force among the nations.