Protective custody

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Under the euphemistic term protective custody were in the Nazi period in Germany jailed dissidents and other unpopular persons solely on the basis of a police arrangement without this subject to judicial review, such as by way of habeas corpus . Initially, this was mainly done by members of National Socialist organizations such as the SA and the SS , and later by the Gestapo, which also consisted of SS members . The prisoners were held, mistreated or even murdered in detention centers, which were subordinate to the National Socialist Party, in the concentration camps (initially referred to as "KL", later as "KZ").

Basics for understanding


The term “protective custody” was not only used by the National Socialists. It is neither to be confused with protective custody in the Kingdom of Prussia nor with today's terms of the constitutional police and regulatory law . These here in the article is not meant terms which includes protective custody , the police custody , and the preventive detention or preventive detention . What these terms have in common is that they are legal institutions with legally regulated requirements, in particular a judicial review and the right to legal assistance.

After the beginning of World War I , Kaiser Wilhelm II imposed extensive coercive measures under the term “protective custody” without judicial review, which were only slightly softened in the “Law on Arrest and Residence Restrictions Due to the State of War and the State of Siege” of December 4, 1916 . Rosa Luxemburg was a prominent victim . Even after the November Revolution of 1918, under the SPD Reichswehr Minister Gustav Noske, numerous people were taken into protective custody, such as striking workers in the Ruhr area, with the law on provisional imperial power that came into force on February 10, 1919 .

After the Weimar Constitution came into force on August 14, 1919, “protective custody” continued to be understood in Germany as a form of detention with fewer rights and under more stringent conditions.

Under National Socialism, the people taken into “protective custody”, the inmates of the concentration camps, were completely without rights. This was based on the Reichstag Fire Ordinance of February 28, 1933, which suspended practically all individual basic rights , was never abolished by the Nazis during their twelve-year dictatorship and remained the basis of their rule.

If the Prussian protective custody does not coincide with that of the National Socialists, Giorgio Agamben nevertheless traces the National Socialist camp back to the Prussian legal institution: While the original protective custody within the framework of the state of emergency was the imprisonment of innocent people "ironically [as] protection against the repeal of the law, which marks the state of emergency ”, the National Socialist protective custody in the form of the camps convert the“ state of emergency, which was essentially a temporary suspension of order, into a permanent spatial arrangement, an area that as such remains outside the normal order. “Despite qualitative differences in both regime forms in the legal and factual situation of those taken into protective custody, what they have in common is that the original condition of imprisonment is an exception, but in the further course it increasingly tends to remove the prisoners the legal norm.

Legal regulation

All articles with freedom rights were acc. Art. 48, Paragraph 2, Clause 2 of the Weimar Constitution "until further notice" suspended by the Reichstag Fire Ordinance of Reich President Paul von Hindenburg . The official name of the ordinance was: Ordinance of the Reich President for the Protection of People and State .

"To defend against communist acts of violence endangering the state" have been repealed in accordance with § 1:

In § 2 the Reich government was authorized to take all measures necessary to “restore public safety and order ”.

Protective Detention Warrant from the Frankenthal (Palatinate) District Office against Hans Langmantl (September 2, 1935)
Protective detention order from the Reich Security Main Office against Maria Fischer , May 13, 1943, signed with “ Signed : Dr. Kaltenbrunner "

One of these measures was the circular issued by Reich Minister of the Interior Wilhelm Frick on the provisions for the application of protective custody (April 1934) . This appointed the Secret State Police as the bodies responsible for the imposition of protective custody. The district and local police authorities ( Ordnungspolizei ) became auxiliary organs of the Gestapo and, since the decree on the appointment of a chief of the German police in the Reich Ministry of the Interior of June 17, 1936, were also under the supreme command of Heinrich Himmler . However, the jurisdiction of the ordinary courts for civil and criminal proceedings remained. In contrast, no judicial review was provided for when protective custody was ordered by the Gestapo. So lawyers could not stand up for the clients taken into protective custody. They didn't even need to be told the reasons for their arrest. The police and those responsible for running the concentration camps, on the other hand, had unlimited power.

On the other hand, agencies of the NSDAP and the SA were expressly not authorized to take into custody . However, they were able to apply for protective custody to be imposed from the responsible authorities.

It was planned that protective custody would only be carried out in state prisons or concentration camps. As early as March 12, 1933, Prime Minister Hermann Göring had ordered the closure of so-called “wild concentration camps”, a term coined by the first head of the Prussian Gestapo Rudolf Diels , which meant improvised detention centers of the SA.

If an arrest was made, the Secret State Police Office in Berlin, as the highest state authority, had to be informed, unless it had arranged it itself. Only if the State Police Office had not ordered protective custody and not expressly confirmed it was the prisoner to be released within eight days of the arrest; otherwise, an official review should be carried out every three months.

The regulations were tightened with the protective custody decree of January 25, 1938.

The Reichstag Fire Ordinance and with it the order of protective custody did not expire until the end of the war with effect from May 9, 1945.

Police preventive detention

Also on the basis of the ordinance for the protection of the people and the state, the “ Circular Decree on Preventive Fight against Crime by the Police ” of the Reich Ministry of the Interior was issued on December 14, 1937 , with which the preventive fight against crime was to be unified across the Reich . The preventive detention imposed by the police on the basis of this regulation , erroneously also referred to as temporary preventive detention , concerned in particular previously convicted “ professional and habitual criminals” who were not monitored and interned by the Gestapo but by the police . Other “anti-social” groups of people were also affected, such as “ work-shy ”, homeless , Sinti and Roma , prostitutes and homosexuals . These people should be rendered "harmless" in "state reform and labor camps", that is to say concentration camps, to protect the general public.

Function of protective custody


During National Socialism, the instrument of protective custody was used on a massive scale as a means of prevention . It did not serve any protective purposes, especially not, as was often claimed, to protect those affected from “popular anger”, but to persecute or destroy people who had become politically and otherwise unpopular. First of all, members of left-wing organizations (above all from the KPD and SPD ) were victims of “protective custody”, then other people who exposed themselves to the regime with their political and ideological convictions, such as members of Christian denominations and communities (e.g. The Serious Bible Students and Jehovah's Witnesses ). This was followed by the members of the minorities of Jews , Sinti and Roma and others who were persecuted for ethnic-racist motives and who were supposed to be excluded from the “national community” as “ anti-social ”. A number of very different, “ German-blooded ” social minorities were labeled as “anti-social” or “foreign to the community” . B. alcoholics, prostitutes, recipients of support, " rural drivers ", "work-shy" or "loafers" and homosexuals. They were all subject to the risk of falling into “protective custody” in the course of individual access or in the course of extensive raids such as the “Arbeitsscheu Reich” campaign .

A large number of the concentration camp inmates were also “ordinary” criminals, against whom, for example, police had imposed preventive detention . This group of prisoners was contrary to the "political" prisoners in protective custody is not a red badge, but by a green angle marked. The SS recruited their so-called functional prisoners from these “Greens” , while the internal prisoner hierarchy was headed by the Communists . As former party officials, they often had special organizational skills.


"Protective custody" had a further function as a means of imprisonment . On September 18, 1942, Reichsführer SS Heinrich Himmler and the then Reich Justice Minister Otto Thierack agreed on measures for “special police treatment in the event of insufficient judicial judgments”. According to this, "anti-social elements from the prison system should be handed over to the Reichsführer SS for destruction through work ". According to the decision of the Reich Minister of Justice, this affected all persons in preventive detention, Jews, Gypsies, Russians and Ukrainians, Poles with a penalty of more than 3 years and Czechs and Germans with a penalty of more than 8 years. Furthermore, there was "agreement that in consideration of the goals intended by the state leadership for the settlement of Eastern issues in the future Jews, Poles, Gypsies, Russians and Ukrainians should no longer be tried by the ordinary courts as far as criminal matters are concerned, but be dealt with [directly] by the Reichsführer SS . ”The aforementioned persons were thus withdrawn from the jurisdiction of the criminal justice system and could be deported directly and murdered in a concentration camp without any trial .

On the relationship between the judiciary and the police / SS

As early as May 1933, the Prussian Justice Minister Hanns Kerrl had ordered that persons who had been arrested on suspicion of subversive behavior (by the judiciary) were no longer under urgent suspicion (which was and is a prerequisite for the court order of pre-trial detention) could not be released from custody without the consent of the political police .

In 1935, Reich Minister of Justice Franz Gürtner obliged the courts to inform the Gestapo immediately if they intended to revoke or not even issue an arrest warrant for a person suspected of a political offense .

When the war began, the judiciary withdrew its claim to be solely responsible in many areas.

The aforementioned agreement of September 18, 1942 led to 14,700 prisoners being transported to concentration camps in the period from November 1, 1942 to April 30, 1943 alone. As early as April 1, 1943, 5,900 of these had died, mostly of epidemics.

Reich Justice Minister Thierack formulated his goals even more clearly in a letter of October 13, 1942 to Martin Bormann : “(...) I intend to leave the prosecution of Poles, Russians, Jews and Gypsies to the Reichsführer SS. I am assuming that the judiciary can only contribute to a small extent to exterminating members of this ethnic group. ”In a meeting with the presidents of the higher regional courts on September 29, 1942, Thierack explained the task of judicial competence by saying that only the police would do this Task, especially since she has already gained relevant experience. The judges, on the other hand, would break inside if they were asked to end all proceedings against a foreigner with a death sentence .

At a meeting with the presidents of the higher regional court on 10./11. In February 1943, Thierack stated that if a senior police officer considered it necessary to hang a Pole as a deterrent without trial, he would not intervene in the future either, since the police officer was only doing his duty .

According to a secret circular issued by the RSHA in 1943 , so-called “anti-socials” and “foreigners” who had committed criminal offenses under National Socialist criminal law were allowed to be handed over to the judiciary if “public court proceedings seemed to make sense from a political point of view and it was ensured that the proceedings would end with the death penalty ". Otherwise, these people were immediately placed in protective custody. In any case, investigations against Poland have only been submitted to the judiciary in exceptional cases since January 1942 , despite the death penalty provided for in the so-called Polish Criminal Law Ordinance.

Polish and Russian forced laborers were shot dead by the police, which was the most common execution case, if they had had a love affair with German women or had sexual intercourse with them. In the same way, refusal to work when leaving the (compulsory) job was punished.

Imposition of protective custody in numbers

The number of people taken into “protective custody” varied greatly.

Elias Rausch (SPD member) was released from prison in Bayreuth in 1933

The first wave, directed primarily against the Social Democrats and Communists , fell in March and April 1933. In these two months at least 25,000 people were imprisoned by state organs in Prussia alone . There were also at that time still "wild" arrests by the SA and SS. Since the state authorities in 1934 after the events of the so-called. Rohm Putsch of 30 June 1934 Himmler had taken SS, are in the following period all detentions as government persecution to evaluate.

The early concentration camps ("KZ") were mostly under the "party army" SA, which caused a certain fear of the SA among the population. The hope of the bourgeoisie that the SA's disempowerment after the Röhm Putsch would bring an end to arbitrariness was not fulfilled. Instead of Röhm's SA, Himmler's SS now had the opportunity to set up new concentration camps in a systematic manner.

Also, the “protective custody” was no longer only used to persecute communists, as one might infer from the Reichstag fire ordinance, but also to persecute other groups. The Court of Appeal evaluated on 8 December 1935, the detention of members of the Catholic Youth Movement also as communists fighting.

Theodor Eicke , who later became the commandant of the Dachau concentration camp , carried out a restructuring of the concentration camps on Himmler's behalf and systematized arbitrariness and terror. His “disciplinary and punitive regulations for the prison camp” of October 1, 1933, which had become generally binding, was based on the principle that the prisoner should be treated with extreme, but impersonal and disciplined “severity”. The camp regulations also introduced a brutal flogging punishment (“whipping buck”), which the inmates referred to as “going over the buck”. The so-called post obligation stated that if there were signs of escape, guards had to use firearms immediately and without warning, and warning shots were prohibited. Murder in the concentration camp was thus unpunished. "The guard who shot a prisoner in the course of his duties is unpunished." This guard duty was responsible for numerous deaths. The prisoners were allegedly "shot while trying to escape".

1935, there were seven camps: Dachau Concentration Camp , KZ Esterwegen , Lichtenburg concentration camp , KZ Sachsenburg , Columbia concentration camp -House in Berlin , Oranienburg concentration camp and Fuhlsbüttel concentration camp . About 7,000 to 9,000 prisoners were held in them.

In 1936/37 the lowest level was reached with around 7,500 prisoners.

In February 1937 the camps began to fill up again. Himmler had decided to convert the camps into educational and, above all, production facilities. To this end, the SS company Deutsche Erd- und Steinwerke GmbH (DEST) was founded in 1938 , which built brickworks and exploited quarries. Initially, 2,000 " professional and habitual criminals" previously in prison were used, the so-called "BV prisoners". At the beginning of 1938, so-called anti - social and “work-shy elements” were arrested for the first time in a nationwide seizure . The inmates became forced laborers .

In 1938, after the Reichspogromnacht, around 35,000 Jews were temporarily interned to intimidate them and to induce them to give up their property and to emigrate. Most of them were released a short time later.

With the beginning of the Second World War , the labor camp system expanded by leaps and bounds both qualitatively and quantitatively. Forced labor came more and more to the fore. Inmates of the concentration camps were now mainly members of other countries, but also representatives of the churches, since Heydrich and Bormann saw the beginning of the war as an opportunity to bring the church struggle to an end.

From the beginning of the war, the police also took a significant number of people into protective custody for refusal to work, in particular striking workers .

From mid-1941, Soviet civil workers were taken into protective custody with the participation of the employment offices.

In October 1941 alone, the Gestapo took 15,000 people into “protective custody”. In March 1942 a total of 100,000 prisoners were in “protective custody”. In August 1943 there were 224,000. A third of them were imprisoned in Auschwitz ( main camp , Birkenau and Monowitz ). In August 1944 there were 524,000 people in “protective custody”; in January 1945 there were 714,000. The strength of the guards at that time was 40,000 men.

Mortality was high (60% of all camp inmates in the second half of 1942). Of the 700,000 inmates still alive towards the end of the regime, at least a third perished on death marches .

The total number of people who perished in the concentration camps from exhaustion and illness was at least 500,000.

The prisoners' lack of rights

The prisoner was not entitled to judicial protection against imprisonment. Section 7 of the 3rd Gestapo Act of February 10, 1936 expressly ordered that decisions and matters of the Gestapo not be subject to review by the administrative courts . There was also no legal protection against the regular abuse up to and including death in “protective custody” .

The file note "RU" (return undesirable) for a concentration camp inmate was equivalent to a death sentence.

Isolated attempts to influence the judiciary

The Gestapo leadership under Heinrich Himmler succeeded in quickly creating a legal vacuum against the investigating officers through the involvement of higher political decision-makers, through sabotage of the investigative proceedings initiated by the judiciary, through intimidation up to the threat of imposing protective custody against the investigating officials. This development came to a certain conclusion in an "Ordinance on special jurisdiction in criminal matters for members of the SS and for members of the police associations in special operations" of October 17, 1939. With this ordinance obtained by Heinrich Himmler from Hitler controlled the guarding of the The SS responsible for the camp and their SS-Totenkopfverband themselves. The result was thus predictable.

In addition, there were various amnesty laws that were used generously in favor of the perpetrators, provided that the judiciary had even picked up the crimes.

If the victims were still alive, investigations by the judiciary were already made more difficult by the fact that the victims had to sign a declaration upon release from the concentration camp in which they pledged to maintain absolute silence about the conditions in the camp. The threat of renewed “protective custody” meant that abused inmates were rarely even ready to be available as witnesses.

Only the high death toll spoke for themselves. The judiciary was at least initially concerned with these deaths because the public prosecutor's office was (and is) to be involved in all cases of non-natural death in accordance with Section 159 StPO .

The treatment of prisoners and the behavior of the judiciary are described on the basis of two typical individual cases from the early days:

The case of the Schloss merchant in the Dachau concentration camp

On May 16, 1933, the camp commandant Hilmar Wäckerle reported that the Nuremberg merchant Schloß had hanged himself in the solitary confinement cell. In fact, the body had extensive bloodshots , and the body was only hung up after the murder in order to simulate a suicide. On May 17, 24 and 25, 1933, three more unnatural deaths were reported from the Dachau concentration camp . In one of the cases, the person concerned was allegedly shot while trying to escape. In the future, this should become a frequently chosen reason for deaths in the concentration camps. Shooting while fleeing was practically equivalent to the imposition of the death penalty by the SS, a punishment without legal basis and without trial.

The working conditions of the judiciary had already become so difficult at that time that the responsible public prosecutor could only dictate the applications in the case of the businessman Schloß to a typist who appeared to him reliable after work and had to bring them to the examining magistrate himself because he feared that the applications would otherwise be on the Official channels disappear. The investigating magistrate wanted to carry out the arrest of the accused with the help of the murder commission of the Munich police department, as was otherwise customary and legally regulated. There he was told "smiling" that the Gestapo was solely responsible for this. On the same day, at the instigation of the Chief Public Prosecutor, the Bavarian Ministry of Justice intervened. The result was that the chief public prosecutor was instructed to discuss the aforementioned cases with Heinrich Himmler, the head of the organization responsible for the murders. However, the law did not provide for Himmler to participate or have a say. Himmler assured cooperation in investigating the crimes, but made sure that the files that he had obtained from the Justice and Interior Ministry disappeared in his organization. The cases have not been resolved.

Even then, the SS was so sure of its power that the camp commandant Hilmar Wäckerle was able to draw up camp regulations and present them to the judiciary, according to which martial law was imposed on the camp and the commandant and officers selected by him could impose the death penalty on them as a camp penalty who refused to obey. There was no legal basis for this. Wäckerle only relied on a permit from Heinrich Himmler.

The new camp commandant Theodor Eicke issued a " disciplinary and punitive regulation " on October 1, 1933 , according to which "by virtue of revolutionary law" he should be hanged as an agitator who "smuggles true or untrue news out of the concentration camp for the purpose of opposing atrocity propaganda (...)" . The public prosecutor and the court were informed that they would no longer have access to the camp until further notice.

Criminal offenses in Kemna concentration camp

In this Kemna concentration camp, which was dissolved again at the beginning of 1934 , prisoners were held naked on special beating benches for questioning and beaten until they were bloody with rubber truncheons, whips and sticks. They were then put in a cramped shack where they could neither stand nor sit. Before that, they had to eat salted herrings that were not yet watered, smeared with Stauffer fat or excrement , and had been forced to lick up the vomit if they vomited. With the fresh injuries, they were then driven into the ice-cold Wupper in winter and had to keep their wet clothes on. Two prisoners died after being transferred from the concentration camp, one of them in the insane asylum in Galkhausen .

These events had also become known to the public prosecutor's office, which, however, only decided to take action in this matter after the SA was ousted. You could rely on informants from the circle of the SA. Although the officer in charge of the Ministry of Justice had issued the informants with real letters of protection, one of them was taken into protective custody by the district leader of the NSDAP as soon as the investigation became known . This informant was only released after five days through intervention at the ministry level. The NSDAP district leadership unleashed a cauldron against the investigating public prosecutor, even dragged him, who was a party member himself, to the party court and managed to get the party member and State Secretary in the Prussian Ministry of Justice, Freisler , to hand over the investigation files to the district leadership. The preliminary investigation was thus initially broken.

After a resumption of the proceedings, enforced by a visit by local party members to Hermann Göring's personal adjutant , the party disposed of the matter by initiating proceedings before the highest party court against the main accused in this matter. On April 1, 1935, the court imposed an extremely mild sentence on her that could hardly be described as such, namely only a “warning”. As a justification, the court stated that the previous investigations had been conducted in a highly unilateral manner; one only listened to implausible public enemies. It is true that the accused went beyond what was "necessary to break the resistance" and "in doing so violated the order given by the Führer that the National Socialist state knows how to render its opponents harmless, but that he also renounces any revenge" (... ). However, it should be taken into account that the SA had to deal with particularly stubborn Communist opponents in the Wuppertal industrial area, who had repeatedly tried to organize themselves illegally , even after the seizure of power . The conduct of the public prosecutor's office in particular gave these elements a boost.

The public prosecutor's investigation was thus practically sidelined. The investigating public prosecutor Gustav Winckler was threatened personally and jostled at night and had to be transferred to another location. The final point was made by Hitler with a crackdown on February 10, 1936.


The “protective custody” is an expression of a complete elimination of the law and the separation of powers (despite the formal continuation of the judiciary and despite the above-mentioned isolated attempts at influence), which was only abruptly broken off in May 1945 when the Nazi regime did not plan to end it. The state violence was solely in the hands of the executive bodies Gestapo and SS, both just Hitler were responsible for Heinrich Himmler himself, but did not make Himmler "three spoke" and no written instructions. The aforementioned power holders therefore had a free hand to cruelly tighten the system of oppression of those who think differently and to realize their National Socialist ideology . Thus, in the sense of the fundamental - and already contemporary - distinction made by the political scientist Ernst Fraenkel, the “state of action” triumphed over the “state of norms” in this area too.

See also


  • Ingrid Bauz, Sigrid Brüggemann, Roland Maier (eds.): The Secret State Police in Württemberg and Hohenzollern . Stuttgart 2013, ISBN 3-89657-138-9 (basic).
  • Martin Broszat : National Socialist Concentration Camp 1933–1945 . In: Anatomy of the SS State . Volume 2. ISBN 3-423-02916-1 (basic).
  • Lothar Gruchmann: Justice in the Third Reich . 1933-1940. 3. Edition. 2001, ISBN 3-486-53833-0 , pp. 353-362, 521-658 .
  • Alexander Sperk : Protective custody and justice in the “Third Reich” in the area of ​​today's state of Saxony-Anhalt . In: Justice under National Socialism . About crimes in the name of the German people - Saxony-Anhalt. Magdeburg 2008, ISBN 978-3-9812681-1-9 , pp. 16–27 (accompanying volume to the traveling exhibition).
  • Ralph Angermund: German judges 1919-1945 . 1990, ISBN 3-596-10238-3 .

Web links

Wiktionary: Protective custody  - explanations of meanings, word origins, synonyms, translations
Wikisource: Reichstag Fire Ordinance  - Sources and full texts

References and footnotes

  1. Designation as KL vs. concentration camp
  2. ^ Weimar 1919: Chances of a Republic . Böhlau Verlag, Cologne, 69th session of the National Assembly on July 29, 1919.
  3. ^ Gustav Noske speaks in a speech given by 22 prisoners in protective custody in Berlin , 94th session of the National Assembly on October 9, 1919.
  4. Example in the speech by Gustav Noske at the 112th session of the National Assembly on October 29, 1919.
  5. a b c d Details can be found in Eugen Kogon's book “ Der SS-Staat ”.
  6. a b Giorgio Agamben: What is a warehouse? In: ders .: means without an end. Political notes . diaphanes, Zurich / Berlin 2006, p. 37 ff., here: 37 f.
  7. ^ Marlis Gräfe, Bernhard Post, Andreas Schneider: The Secret State Police in the NS Gau Thuringia 1933–1945 , 1st half volume. (PDF) Sources on the history of Thuringia. 2nd unchanged edition. 2005, ISBN 3-931426-83-1 , p. 155 ff.
  8. ^ Marlis Gräfe, Bernhard Post, Andreas Schneider: The Secret State Police in the NS Gau Thuringia 1933–1945 , 1st half volume. (PDF) Sources on the history of Thuringia. 2nd unchanged edition. 2005, ISBN 3-931426-83-1 , p. 155.
  9. ^ Lothar Gruchmann: Justice in the Third Reich 1933-1940. Adaptation and submission in the Gürtner era . 3. Edition. Oldenbourg Wissenschaftsverlag, Munich 2001, p. 547 ff.
  10. See the reprint of the “Basic Decree” in: Wolfgang Ayaß (arrangement): “Community foreigners”. Sources on the persecution of "anti-social" 1933–1945 (PDF) Koblenz 1998, No. 50.
  11. ^ Susanne Schott: Curt Rothenberger - a political biography . Univ.-Diss. Halle (Saale) 2001, Annex 19, p. 215.
  12. When the National Socialists spoke of “discipline” and “toughness”, they mostly meant “inhumanity” and “brutality”, including killing.
  13. ^ Marlis Gräfe, Bernhard Post, Andreas Schneider: The Secret State Police in the NS Gau Thuringia 1933-1945 , I. half volume ,. (PDF) Sources on the history of Thuringia. 2nd unchanged edition. 2005, ISBN 3-931426-83-1 , p. 92 ff.
  14. Central instrument of rule . Deutschlandfunk , March 31, 2011; accessed on June 21, 2018.