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Repressing both the Crimes and Their Punishment
War Crimes Trials before the Austrian Peoples Courts of the Immediate Post War Period and Austrian Politics of Memory
In the short declaration on Austria(2) the United States, Great Britain and the Soviet Union agreed upon the restoration of Austria as an independent state, for it had been "the first free country to fall a victim to Hitlerite aggression". But the declaration also admonished the Austrians that they had to take upon responsibility for their participation in the war of the Axis against the Allies. Although the declaration emphasized that the Allies regarded "the annexation imposed on Austria by Germany on March 15, 1938, as null and void", the actual formulation was in some way misleading, because it blamed "Austria" and not "the Austrians", as if the Austrian government had joined Germany's wars of aggression: "Austria is reminded, however that she has a responsibility, which she cannot evade, for participation in the war at the side of Hitlerite Germany, and that in the final settlement account will inevitably be taken of her own contribution to her liberation."
The first provisional post war government of Austria - which was in power from April 27th 1945 (until October 20th 1945 recognized only by the Soviets) and after the elections of November 25th 1945 replaced by a conservative led all-party coalition government - made efforts to cope with this responsibility, by establishing special courts for Nazis crimes, committed by Austrian nationals, the so called People's Courts. Ordinary members of the Nazi party lost their right to vote and had to pay retribution taxes, qualified members and so called "illegals" (i.e. former members of the clandestine Nazi party before the "Anschluss" 1938) had to stand trial for high treason.
For Austria's post war history the recognition of the country as Hitler's "first victim" was of considerably greater importance than the responsibility clause in the Moscow declaration of 1943.
Hitler's "first victim"? This was true, of course, for Austria as a state, the government of which had been forced to resign under the military, economical and political pressure of Nazi Germany on 11th March 1938 - Austria had been incorporated into Germany before the fake plebiscite of 10th April 1938 had taken place.
This was true also for the members of the new democratic administrations after the liberation, most of whom had been either victims of Nazi persecution themselves or had to deplore relatives and comrades killed by the Nazis.
But this was not true for the vast majority of the Austrian population. Hundreds of thousands of them had welcomed Hitler in 1938, had joined the Nazi party then. And even more of them had been impassible bystanders when their Jewish neighbours were first deprived of their rights, then expelled from their apartments and finally either exiled or deported to the camps in the East, a fate which applied to more than sixty thousand Austrian Jews.
Only a tiny minority had helped those who were persecuted by the Nazi regime, for instance in hiding Jews or aiding Allied prisoners of war and starving forced laborers from Eastern Europe. And only some thousands (out of a population of about 7 Millions) had joined the clandestine resistance movements - organized by catholic, monarchistic and communist militants - or the partisan groups in some mountainous regions of the country. They were cruelly persecuted by the Nazi dictatorship, 2,500 of them had been sentenced to death and executed between 1938 and 1945.
But when the war was over, despite all those obvious facts, most of the Austrians, who had supported the Nazi dictatorship until the last months before the liberation, considered themselves as "victims". They adopted the first-victim's-ideology of the democratic government and the Allies and transformed it to an excuse for everything, in order to avoid any responsibility. There was no discussion - in the sense of a broad public debate - about the consequences of the participation of 1.2 million Austrian soldiers in the Nazi wars of aggression. On the contrary. The surviving 750,000 soldiers - many of them for months or even years in Allied custody - and their families regarded themselves as victims of the war, who had had a hard time and demanded compensation for their sufferings by the Austrian government.
Until the 1960ies almonst every village in Austria got its monument for the dead soldiers, and on many of those monuments you can read "fallen for their home country", denying the historic evidence that the defeat of the army, they had fought in, was a precondition for the liberation of their home country.(3)
On the other hand at that time hardly any monuments for the victims of Nazi atrocities and for sentenced and executed members of the resistance movements were erected outside Vienna and some strongholds of the labor movement. This illustrates the real attitude of the majority of the population towards its Nazi past.
After only three years the government gave way to that public pressure and suspended most of the efforts to denazify the Austrian society.
As I already mentioned, one of the most outstanding issues in de-nazifying the society was the punishment of the Nazi war criminals. The Austrian way to do that were the so called People's Courts - in German "Volksgerichte".(4) These special courts existed between 1945 and 1955. The juridical basis of these courts were two laws, promulgated in the first days of the Second Austrian Republic. The first, the so called Nazi Prohibition Act, was passed by the Austrian Provisional Government, on May 8th 1945 - a few hours before the capitulation of the German Wehrmacht. The second, passed on June 26th 1945, was called War Criminals Act. By these two laws the prosecution of Nazi war crimes got a special legal status. The special laws were created with the aim of addressing the special nature of Nazi crimes. For crimes like the Nazi crimes hadn't had occured before, most paragraphs of the two laws were retroactive, as were many other laws in Europe at the time. Like other laws in both Eastern and Western European countries, these laws preceded the London Charter for the Nuremberg Trials, passed on the 8th of August in 1945. Similar laws were also adopted by countries which at that time had no contacts with the Western Allies - as for instance Austria. This shows that the legal principles of the Nuremberg proceedings were accepted by European law experts even before they were formulated by the London Charta.
According to the two extraordinary laws of May and June 1945 the following crimes (among others) were to be brought before a People's Court:
A special paragraph stated that the obligation to obey orders did not protect the perpetrator from punishment. Nevertheless, those giving the orders should have been punished more severely than those executing them.
The People's Courts were presided over by two professional judges and three lay assessors. Austrian post-war courts suffered from severe shortage of judges. Many of the judges were no longer allowed to perform judicial duties, due to their services in the Nazi system.
After the liberation of Austria in May 1945 People's Court trials were held only in the Soviet occupation zone. The first such trial took place in August in 1945 - three months before the Nuremberg Trials. The accused were former stormtroopers suspected shooting Hungarian Jews in Engerau, a village near Bratislava, the capital of Slovakia.
The Western Allies in their respective occupation zones did not allow to establish People's Courts before March-April 1946. Thereafter four People's Courts existed in Austria - Vienna for the Soviet zone, Graz for the British zone, Linz for the American zone and Innsbruck for the French zone.
The Austrian People's Courts launched preliminary proceedings in almost 137,000 cases against individuals suspected of crimes that fell under the Nazi Prohibition Act or the War Crimes Act. 108,000 out of them by early 1948.
In more than 28,000 cases suspected individuals were indicted. In 23,000 cases a verdict was passed. 13,607 judgements were verdicts of guilty.
30 death sentences were actually executed out of 43, two of the criminals sentenced to die committed suicide before they could be hanged. 27 criminals were sentenced to life imprisonment. Sentences in the upper range (that is death penalty or imprisonment of more than ten years) were imposed on 350 defendants.
In summer 2000, in the period of coordinated diplomatic impoliteness of the 14 EU member states towards the new Austrian government, the coalition of the conservative and the Freedom parties in Vienna launched a patriotic campaign(5) against the so called EU-"sanctions" against Austria. An important part of this campaign was a new politics of memory. The government made both a new attempt to settle the Jewish property problem, which had been delayed by so many Austrian governments since 1945, and, at the same time, attacked all those who reproached Austria for its inability to come to terms with its Nazi past. Federal chancellor Schüssel rejected accusations against the Austrian judiciary by quoting the figure of 137,000 Nazi-crimes-proceedings instituted in post war Austria - more than in Germany. This extraordinary high number proves - according to the head of the Austrian government - that small Austria prosecuted more Nazi criminals than big Germany.
But when journalists tried to verify this figure, they learned that the Austrian judiciary had neglected the task of designating the proceedings to the different Nazi crimes. And they learned that it is no specific Austrian trait that one can scarcely answer the question, to what extent and in what way post war judiciary punished Nazi crimes. Although it is hardly to be believed, it is still impossible to answer this question in more than an approximative manner. This statement applies to many European countries.
Of course, there are global statistics, but they inform only about the number of cases tried and not tried, and about the outcome of the trials: the number of convictions and acquittals. The official Austrian statistics do not contain even these figures, but only the number of how many times preliminary proceedings were instituted against an accused and how many times a defendant was convicted or acquitted. Thus, if two proceedings were instituted against one accused, two cases were counted. And if one proceeding against two accused was instituted, again two cases were counted. The same applies to indictments and verdicts. Every retrial after a reversal of the judgement was counted as two cases. For this reason it is not possible to particularize the global figures. The official statistics do not inform about the exact number of cases (neither tried nor untried), nor about the number of individuals involved in those proceedings.
According to recent estimations of the "Forschungsstelle Nachkriegsjustiz" (Austrian Research Center for Post-War Trials), the total of all preliminary proceedings could amount to 80,000 cases against presumably 110,000 accused. We suppose that the 23,500 judgements were passed on around 20,000 defendants (some11,500 out of them had to stand trial in Vienna). And the 13,600 verdicts of guilty apply to around ten thousand convicted defendants.
Up to 60 % of the verdicts of guilty were passed in denazification cases, that means sentences for high treason because the indicted individual had been member of the clandestine Nazi party before the annexation of Austria to Germany in 1938 or because he or she had given false statements about his or her role in the Nazi party. Even considering those denazification trials, there remains an estimated number of around 5,000 individuals who had been sentenced for Nazi crimes (either crimes of violence like murder or assault and battery, or less serious crimes like informing ["Denunziation"]) by Austrian People's courts.
Taking into consideration that Austria had less than 7 million inhabitants at that time (i.e. an eighth of the West German population) and compared with around 5,900 defendants(6) sentenced by West German courts in the same period, this is an impressive figure. And the Austrian chancellor was not wrong about stressing that. But he should have mentioned the shameful second chapter of that story: After the dissolution of the People's courts in December 1955 Austrian courts convicted only 20 defendants for Nazi crimes - compared with around 600 by West German and 122 by East German courts since 1956.(7)
All those statistics tell us a lot about the status of trials on Nazi crimes in post war societies. But they tell us nothing about the crimes themselves. They don't even tell us anything about what crimes were punished. Because of the limitation periods it is clear that after a certain date all trials could be nothing more than homicide cases, but for the first post war decade, when more than 99 % of all cases were tried, the statistics do not indicate which crimes were investigated in those proceedings. Therefore these figures are suitable only for global comparisons, but insufficient for a more sophisticated analysis. No wonder they are popular with politicians.
The Austrian Research Centre for Post War Trials has been working since more than four years in order to produce more detailed statistics. We hope to be able to publish a complete list of all the judgements in cases of murder, deportation, assault and battery and similar Nazi atrocities in 2004 or 2005. Up to now no serious estimations for all four Austrian People's Courts are possible.
But we finished already a computer aided analysis of the index cards of the Viennese People's Court, which made finally available exact figures about the preliminary proceedings. Those index cards contain name and age of the accused, as well as law and section on which the legal proceeding was based.These figures allow a first evaluation of the activity of the most important of the four Austrian People's Courts.
The official number of preliminary proceedings on trial at the Viennese court is 52,600. We know now(8) that the number of cases was 35,000 - instituted against around 40,000 individuals. 81 % of the accused were men, 16 % women. 3 % of the index cards designated no sex of the accused. 160 proceedings were instituted against unknown perpetrators. 54 % of the accused were born between 1895 and 1910, that means that a majority of them were around 35-50 years old at the time of the crimes in question. More than 28 % of all proceedings were instituted on the basis of murder, war crimes, crimes against humanity, deportation, assault and battery, and denunciation leading to the death of the denounced person. It has to be emphasized that these are figures concerning the legal proceedings. They do not indicate anything about the verdicts.
Based on the court register of main trials a data base containing information on the judgements has been compiled. After a first evaluation of the court registers it turned out that almost 9,000 proceedings before the Viennese People's Court ended with a main trial. Out of the 11,500 defendants in those trials 56 % were sentenced (among them 28 individuals to death and 21 individuals to life imprisonment).(9) Around 15 % of the judgements (i.e. 1,300 until 1,400 cases against estimated 1,700 until 1,800 defendants) concerned crimes of violence. The Viennese court tried more than a third of all cases before the People's Courts, among them an above-average number of cases regarding crimes of violence. For that very reason it is not possible to extrapolate from the Viennese figures the actual number of cases regarding murder and other crimes against humanity before all four People's Courts. It is highly probable that the final result will be below 2,500 verdicts of guilty in such cases.
According to first observations we expect considerable differences in the distribution of the crimes between the tried and non-tried cases. An example of this would be: As far as we know until now around 2 or 3 % of all sentences were passed in cases concerning Aryanization. But nearly 16 % of the preliminary proceedings were instituted because the accused was suspected of having profited by the Aryanziation of Jewish property.(10)
The Austrian Research Centre for Post War Trials together with the Documentation Centre of Austrian Resistance (DÖW) have microfilmed, 750 records of the trials before the Viennese People's Court and 50 records of trials before the district court of Vienna. In the 2001 edition of the DÖW yearbook(11) contains an initial evaluation of these records, including some corrections of the official figures concerning the trials after the dissolution of the People's Courts. But of greater importance than the corrections of statistic details is the effect this has on the avancement of historical research. The evaluation in the course of the microfilming process proved that the records contain firm insights into the mechanics of Nazi rule in Austria. Countless humilations and insults - primarily towards Jews - were committed not only by functionaries of the regime. The selection of the records to be microfilmed has been following three main focal points: homicidal crimes (primarily against Jews), Aryanization, and trials against members of the Nazi elite. But when we analyzed the content of those trials we realized that more than 300 out of 670 microfilmed records contain evidence about the crime category "assault and battery / violation of human dignity". This proves a fact which was suppressed later on in public memory: Also the ordinary members of the Nazi party to a large extent commited crimes against humanity and human dignity. This was well known in the immediate post war period, when police and prosecutors tried to bring the perpetrators before the courts. After the abolishment of the War Criminal Act in accordance to the Nazi Amnesty in 1957 it was no longer possible to prosecute Nazi crimes other than homicidal crimes. Violation of human dignity fell under the statute of limitation.
Only few of the perpetrators convicted by People's Courts were prominent Nazis, and there was hardly anyone among them who had played a decisive role on the top level in the killing machine of the holocaust. The most prominent among them was Siegfried Seidel, the commandant of Theresienstadt who was hanged in the Viennese district court on February 4th 1947. The charge against him comprised his leading position in the camps Theresienstadt 1941 through 1943 and Bergen-Belsen 1943 through 1944, furthermore 16 executions in Theresienstadt in 1942, in which he personally was involved, and which became very important during the trial, because the sentence was based to a great extent on that crime. A further count was his crimes as a member of Adolf Eichmanns staff in Hungary in 1944 and later on as a deputy commandant of the camps for Hungarian Jews around Vienna 1944 thru 1945. The text of the judgement is more a juridical discussion to apologize the trial than a description of the crimes. It was obvious that Austrian jurisprudence wanted to have at least one of the prominent Nazi figures before an Austrian court. Seidl should have been extradited to Czechoslovakia. But the Viennese People's Court isisted in putting him on trial in Austria. The legal justification for this was that Seidl himself and most of his Jewish victims were Austrian. Although it was only a juridical construct, it worked. The Alliies agreed. In August 1946 the indictment was delivered, on the 3rd of October in 1946 Seidel was sentenced to death.(12)
The investigations of the People's Courts concerned almost exclusively crimes that large parts of the Austrian population had witnessed during the last weeks of the war. Very few of the severe crimes committed in the extermination camps in Poland, in the occupied territories of the Soviet Union and on the Balkans, were investigated by an Austrian People's Court, because Austria had to extradite Nazi-perpetrators to those countries, where they had committed their crimes. The extradition-proceedings, however, were conducted before Austrian Courts. In addition to that we have to consider how difficult is was to summon witnesses from abroad to an Austrian court in the immediate post-war period.
Nevertheless the trial records of the People's Courts are of great importance for Holocaust researchers, inasmuch as Holocaust studies do not concern only the crimes in the extermination camps but also the evacuation of the camps and the death marches of the last weeks of the war. Many of those crimes happened in Austria, in full view of the Austrian population and were subject to legal inquiries immediately after the war.
On December 20th 1955 the People's Courts were dissolved by a constitutional law. The abolishment of the People's Courts was a sequel of the State Treaty between Austria and the four Allies on the 15th of May in 1955.
De facto the prosecution of Nazi criminals had ceased some years earlier. The sudden decline of the prosecution of perpetrators at the end of the 1940ies was not specific to Austria, but an international trend. The Americans pardoned at that time a great number of German war criminals prior convicted by Allied courts. The reason for this was the Cold War, which coincided with the re-integration of the former Nazis into the society before the Denazification had produced a lasting effect. The Allies needed the majority of the German population as their new allies in the beginning Cold War. Simon Wiesenthal stated once, that there was only one real winner of the Cold War, namely the old Nazis.
In Austria not only the party of the ex-Nazis, the so called Independent's League ("Verband der Unabhängigen", VdU(13)), but also leading members of the two big parties, the social-democrats and the conservatives, demanded the abolishment of the People's courts. It was indebted to the Allies that the dissolution of those Courts was possible only after the State Treaty and the withdrawal of the Allied troops from Austria. The courts existed until 1955, but their work was undermined by political influences. On the one hand the courts pronounced long sentences, on the other hand the convicted murderers got clemency and parole by the government after a couple of years. The Austrian judicial authorities were confronted with political pressure and orders of the government to release the prisoners. Out of the mentioned around 350 perpetrators, who were convicted to penalties in the upper range (life imprisonment or imprisonment of more than ten years) nearly all were set free within no more than seven years, from the beginning of 1949 until the end of 1955. Just seven of them were still serving their time in 1955.
One of the reasons for this remarkable clemency was the fact, that the 500,000 former members of the Nazi party represented an attractive voters' reservoir. In 1945 they had temporarily lost their right to vote. Before the elections of 1949, when they were allowed to vote again, a disgraceful run on the Nazi votes began. The two big parties, the conservatives and the socialists, were keen on proving that they acted on behalf of the "soldiers generation". At the same time the settlement of Jewish claims was postponed. A British historian, Robert Knight, who wrote a book about that problem, found an revealing sentence in the minutes of the government. The minister who was responsible for the settlement of Jewish claims stated: Ich bin dafür, die Sache in die Länge zu ziehen - "I suggest to drag out that issue".(14)
But I want to emphasize, that this development is not an Austrian specifity. The re-integration of the former Nazis into the society before the Denazification had produced a lasting effect took place also in Germany and was supported by the Allies, who needed the majority of the German population as their new allies in the beginning Cold War. Simon Wiesenthal stated once, that there was only one real winner of the Cold War, namely the old Nazis.(15)
After some years of intensive prosecution of Nazi crimes not only the crimes themselves were suppressed in public memory but also what Austrian police departments, magistrates and courts had done to find and to punish the perpetrators. The punishment of thousands of Austrian Nazi-criminals by Austrian courts after the war was a performance this republic could have been proud of it, but the mere fact that there had been thousands of Austrian Nazi-perpetrators was not compatible with Austria's "first victim's" ideology. And so both disappeared from public memory - the crimes and their punishment.(16)
An italian translation of this text was
published 2005 under the title "Reprimere
il crimine, frenare i processi. L'esperienza delle corti del popolo in Austria"
Paper given at the international conference War against Civilians (Bologna 2002)