Accounting for the German population of the occupied territories
As is known, from September 1941 until the end of 1943, Ukraine (the southern and western regions even longer) was under German-Romanian occupation. The German occupation administration carried out a number of measures with respect to the population of the captured territories.
For the purpose of registering persons of German nationality, the so-called “List of the German People of Ukraine” was established, into which all Germans living in the district were to be entered. The model for such actions was a similar procedure in the occupied areas of Poland. Poland was under German control for almost six years, and during these years virtually all of that country’s multimillion-strong German national minority was entered into the national list. Actual entry into the “List of the German People of Ukraine” meant the conferral of German citizenship through a scheme of collective naturalization.
The Federal Republic of Germany has always regarded itself as the successor to all German states that existed on German soil. Therefore, the FRG parliament, back in the 1950s, by separate resolutions recognized the validity of the naturalization acts carried out during the Second World War. So if a list certificate (Volkslistenausweis) or other evidence of entry into the list is found in German archives, the interested person can reasonably claim the collective conferral of German citizenship to himself personally or its transmission by inheritance from one of his ancestors.
Cannon fodder
Another, more pressing goal of establishing the list stemmed from the military situation of the first half of 1943. Stalingrad and the battle in Africa had already been lost. Germany’s military machine, stretched along incredibly long fronts, was cracking at the seams. There was a catastrophic shortage of soldiers to replenish the Wehrmacht and other paramilitary organizations. Foreign Germans seemed an accessible reservoir for replenishing the personnel of Germany’s armed forces. The Reich leadership always envisioned a purely German army. Therefore, foreign Germans were rapidly naturalized and then conscripted into the Wehrmacht as citizens. In total, approximately 80,000 Russian Germans were conscripted into Germany’s armed forces, and 40,000 of them fell at the front or went missing in action.
Accurate data are lacking, but by some estimates, up to 600,000 Germans lived in the territory of Ukraine at the beginning of the war. Approximately 350,000 were deported by the NKVD deep into the USSR at the start of the war, and about 250,000 remained living in the zone of German influence. Entry into the list or obtaining an “ethnic German certificate” (Volkstumsausweis — not to be confused with the certificate of entry into the list — Volkslistenausweis) gave their holders quite tangible, real privileges compared with the rest of the non-German population: a certain protection from arbitrariness, priority rights to jobs, food cards, medical care, supply with various goods, household items, etc.
These privileges from the occupation authorities, which the Germans of Poland, Ukraine, and other countries captured by the Wehrmacht had not asked for at all, only aroused hatred on the part of the local majority and came at a high cost to the national group after the occupiers left. The criminal clique ruling in Berlin viewed foreign Germans as an additional reservoir of cannon fodder and colonizers of the East and tried by means of various benefits to create a base for itself in the occupied territories. Thus, the German national minorities, not of their own will, like all other peoples, became hostages of the national policy of fascist Germany. Being in their majority loyal citizens of the states of residence, the German minorities were made guilty of starting the war and all the evils of the occupation of their countries by the Hitlerite regime.
In 1943–44, the German population of the occupied territories almost in full force left the places of their habitual residence. Weather, disease, and shortages of medicine and food reduced the ranks of refugees, especially small children. Those who made it were placed in filtration camps for displaced persons, mainly in the vicinity of the city of Łódź (Litzmannstadt) in the territory of Poland. Placement also took place in the Sudetenland, Austria, and other regions. After the start of the Soviet January offensive in 1945, Russian Germans were transported from the territory of Poland further west. In 1945–46, approximately 200,000 Russian Germans were forcibly repatriated from Germany to the USSR.
During this epic, a significant part of the evacuees were naturalized as German citizens on an individual basis. The confirmation of the act of conferring German citizenship was an individually issued naturalization certificate (Einburgerungsurkunde). A number of Russian Germans were naturalized along the way to the West. The deported Germans of Ukraine in remote regions of the USSR knew nothing of all this, working hard in the labor army and at other construction sites of the vast country.
The zone of operation of the regulation on establishing the “List of the German People of Ukraine” was limited to the so-called “Reichskommissariat Ukraine,” which covered approximately two-thirds of modern Ukraine. The eastern, western, and southern regions of the country, as well as Crimea, were not included in the commissariat.
Structure of the “List of the German People of Ukraine”
The list was divided into four sections. Section I was reserved for those who had always actively and visibly fought for the interests of the German national group. Section II included “normal” Germans, as a rule, the rural population. Section III was intended for persons from ethnically mixed families or individuals who did not have sufficient command of the German language. Urban Germans could be entered into sections I, II, III, or IV of the list. This depended on the degree of their assimilation and the opinion of the racial expert (Volkstumssachverstдndiger) on the prospects for Germanization of family members.
Section IV was considered the most undesirable. It included Germans who, despite their national affiliation with the German people, were regarded as politically unreliable and suspicious elements. Thus, from the point of view of the occupation administration, being entered into sections I–III of the list was considered positive. Section IV included members of the CPSU and Germans who held certain positions in the structure of Soviet and other administrative bodies. Entry into Section IV was considered a negative factor that should be avoided if possible.
I must say that the current law on the «Status of Late Resettlers» and the law «On Refugees and Expellees» seem to me to be a direct offspring of the regulation for laying down the list of the German people. As in the list, modern laws divide Russian Germans into «pure» ones with status under §4 BVFG (section II of the list), and members of the family of a German resettler subject to Germanization with status under §7 BVFG (section III of the list). §5 BVFG excludes from the group of late resettlers persons of German nationality who were at one time pillars of the totalitarian regime (section IV of the list).
Unlike the Polish list, due to lack of time the occupation authorities were unable to actually check and register to any significant extent, in the manner prescribed by the instructions, all persons of German nationality who lived in the so-called «Reichskommissariat Ukraine». Certain measures for the organized laying of the list were carried out only in the city of Zaporizhzhia and some districts of the region.
There are three reasons for this. First, the deportation by the NKVD of several hundred thousand Germans from Ukraine to remote areas of the USSR in July–September 1941, even before the Wehrmacht entered. Second, the relatively short duration of the occupation of Ukraine and the lack of time and resources of the German administration to register all persons of German nationality remaining in the occupied territories. Finally, even those who were actually entered into the list cannot provide documentary evidence. A number of German archives perished in the fire of war. During the forced repatriation to the USSR in 1945–46, Russian Germans themselves destroyed their German identification cards and certificates for security reasons.
All of the above allows us to reach the following conclusion. The overwhelming majority of eligible persons were not entered into the list or cannot prove this fact. Therefore, interested persons have no choice but to derive their claims to German citizenship from the text of the decree itself on the laying of the «List of the German People of Ukraine». It should be noted that the list has survived far from completely; its scattered parts are stored in the Federal Archives (Bundesarchiv). Now in more detail.
Paragraph 1 of the «Regulation on the Granting of German Citizenship to Persons Entered in the “List of the German People of Ukraine”» provided for the following criteria for granting German citizenship:
- belonging to the German people;
- permanent residence (settlement) as of June 21, 1941 in the area of the subsequent so-called «Reichskommissariat Ukraine»;
- fulfillment of the prerequisites for inclusion in sections I and II of the list.
I would like to elaborate on each of these points. Belonging to the German people implied German descent and affiliation with the circle of German culture. Command of the German language as a native language was not an absolute prerequisite for being recognized as German. However, mere descent from a single German ancestor was also considered insufficient. In the understanding of the competent authority, a candidate for inclusion in the list had to be clearly recognizable to others (language, religion, mores and customs) as a person of German nationality.
The concept of settlement on the key date of June 21, 1941 has its variants. But in general, it refers to permanent registration and actual permanent residence in the territory of the subsequent «Reichskommissariat Ukraine».
Sections I and II of the list included persons who met the two criteria described above (belonging to the German people and settlement). These criteria were clearly met in rural areas in zones of compact settlement of the German national minority. In large and medium-sized cities, especially in conditions of mixed marriages, processes of assimilation of the German ethnic group were already observed at that time. Therefore, the occupation authorities, when entering into the list, differentiated between the urban (assimilated to varying degrees) and the pure German rural population. To understand the logic of dealing with specific persons, I am also forced to adhere to this division.
Modern interpretation of the list
The literal interpretation of §1 of the Regulation on the laying of the list (Volkslistenverordnung) is of decisive importance for the legal assessment of the current situation. The key provision of this paragraph is as follows: the granting of German citizenship is not connected to actual inclusion in the list. The starting point is the fulfillment of the aforementioned prerequisites. As I have already said, only a few eligible persons were actually entered into the list. Therefore, to verify claims to the collective granting of German citizenship, one should obtain an answer to the following question: if the question of entering a specific person into the list were raised, would such an entry have followed?
For the rural population from areas of compact settlement of the German population, the answer to this question is quite unambiguous - yes. Therefore, for these persons and their descendants, the above argumentation opens up significant prospects for substantiating their claim to the granting of German citizenship. For urban Germans, the presence of criteria for inclusion in the list should be examined on an individual basis. I would also like to say that even now, many decades after the events described, there are opportunities to reliably prove the belonging to the German people of persons who died long ago.
Declassification of archival funds from the time of the German or German-Romanian occupation in the former Soviet republics has led to the discovery of new and important information that has direct or indirect evidentiary value in cases concerning the granting of citizenship to persons of German nationality. Both German documents and Soviet-era acts can be used to build a system of evidence: KGB interrogation protocols, special settler questionnaires, and so on. Indirect evidence is understood to include lists of recipients of ration cards, students of German schools, recipients of land, agricultural implements, furniture, etc., which were allocated to German residents of the occupied territories.
Inclusion in Section III of the list meant a provisional or conditional acquisition of German citizenship (Einbuergerung auf Widerruf). After a certain period, it was planned to conduct a re-examination of the development of the national self-awareness of "temporary" citizens, after which a final decision on the citizenship of these persons would be made. As early as April 1945, a few weeks before the end of the war, while in a completely hopeless military situation, the citizenship office, without batting an eye, scheduled re-examination dates for 1946-47. As a rule, these temporary citizenships have retained their significance to this day. Interested persons may well demand recognition of the validity of the entry in Section III of the list and use this to support their claims to German citizenship.
Procedure and expected results of an application for the granting of citizenship
What legal consequences can interested persons derive from the state of affairs I have presented?
For a better understanding of this issue, I would like to outline the procedure for submitting and processing an application for the granting or confirmation of citizenship. Applicants living abroad must submit their petitions to the Federal Administrative Office (Bundesverwaltungsamt, 50728 Koeln). The petition may be submitted directly to the stated address or through a German foreign mission (embassy or consulate) in the applicant's country of residence. The embassy is obliged to accept such an application. The law does not require the application to be submitted on a special official form, so a petition in free form can be written by hand on a sheet of writing paper. If the embassy refuses to accept the application from your hands, you can send it to the embassy by registered mail with return receipt. It may also make sense to contact the Federal Administrative Office directly at the above address. In your application, you must clearly and intelligibly set out the substantive basis of your claims to German citizenship and attach the relevant documents confirming the line of descent and the asserted events.
What answer from the Federal Administrative Office should applicants expect at present? A certificate of citizenship of the Federal Republic of Germany (Staatsangehoerigkeitsausweis) will be received by those who can prove the fact of entry of relevant persons in the "List of the German People of Ukraine." Claims to obtaining German citizenship also arise from the presence in the archive of a naturalization certificate for the granting of German citizenship on an individual basis during the Second World War. All other applicants receive a refusal due to the lack of substantiation of their claims.
Legal basis for the naturalization claim
How should one regard this position of the competent authority? I have already stated my opinion above. It was confirmed by the decision of the Bavarian Administrative Court (Bayerischer Verwaltungsgerichtshof). The high court unequivocally ruled that the decisive factor is the fulfillment of the prerequisites for inclusion in the list, not the fact of inclusion itself. Anyone who in their daily practice encounters the barriers and difficulties that Bavarian authorities and judicial bodies place in the way of the repatriation of Russian Germans to their historical homeland will understand that the court's ruling is not a friendly service to this group of the German people. After a thorough analysis of all relevant legislative acts, the highest Bavarian judicial body on administrative law considers the interpretation of the provision on the creation of the list to be the only correct one and binding on all administrative and judicial bodies, at least for the federal state of Bavaria.
The Ministry of the Interior of the federal state of Baden-Württemberg, by its circular, instructed all state bodies of the Ministry of the Interior system to adhere to the interpretation of the meaning of the "List of the German People of Ukraine" that I advocate. Moreover, this state-level administrative body went even further. The state Ministry of the Interior unequivocally determined that this circular also covers those Germans who, at the beginning of the war, were deported to remote areas of the USSR from the zone of the subsequent "Reich Commissariat Ukraine." I must say that in the cases of my clients concerning "list-based" citizenship, which are considered in the federal states of Bavaria and Baden-Württemberg, I have achieved fully positive results.
How do legal disputes end up in one court or another? When is a case referred to the Bavarian Administrative Court, and in what cases to the administrative court of the city of Cologne? In Germany, there is a clearly observed jurisdiction of judicial instances and the supremacy of the responsible court within its judicial district. The independence of justice means that different courts may reach different verdicts in similar cases. A judge is free in his search for truth and justice, including from the opinion of colleagues. He is obliged to apply the legal interpretation only of a higher judicial instance. Decisions of the competent judicial instance are binding on all administrative and lower judicial bodies in the given judicial district. With regard to disputes about the meaning of the list, this means that decisions of the Bavarian Administrative Court are binding for the authorities of the state of Bavaria and are not decisive, for example, for the state of Thuringia.
Recently, based on the aforementioned circular of the federal state of Baden-Württemberg regarding the 'list' citizenship of Germans from Ukraine, I successfully resolved a client's case in the administrative bodies of this federal state within a couple of months. How did he get to this state? My client moved to Germany under the status of a late resettler and was assigned to live in Baden-Württemberg. As a result of a re-check, the local office for expellees revoked his status as a late resettler, after which the question arose about his further stay in Germany. The competent authorities of Baden-Württemberg are obliged to follow the instructions of their own ministry. Therefore, they recognized the would-be late resettler as a hereditary citizen of Germany and issued him a German passport.
The Federal Administrative Office is a federal institution and is located in the state of North Rhine-Westphalia. The rulings of the Bavarian and Baden-Württemberg judicial and state authorities are not binding on it. As you understand, the state officials working in this institution are far from enthusiastic about the prospects opening up for interested parties within the framework of my interpretation of the provision on the establishment of the 'List of the German People of Ukraine'. Why?
Thomas Pue,
German lawyer.