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Title: Trials of war criminals before the Nuernberg military tribunals under control council law no. 10
Author: Anonymous
Language: English
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BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO.
10 ***
Transcriber’s Note:
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screen.
TRIALS
OF
WAR CRIMINALS
BEFORE THE
NUERNBERG MILITARY TRIBUNALS
UNDER
CONTROL COUNCIL LAW No. 10
NUERNBERG
OCTOBER 1946–APRIL 1949
[Illustration: NUERNBERG MILITARY TRIBUNALS]
VOLUME III
UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON: 1951
For sale by the Superintendent of Documents, U. S. Government Printing Office
Washington 25, D. C.--Price $3.75 (Buckram)
PREFACE
In April 1949, judgment was rendered in the last of the series of 12
Nuernberg war crimes trials which had begun in October 1946, and were
held pursuant to Allied Control Council Law No. 10. Far from being
of concern solely to lawyers, these trials are of especial interest
to soldiers, historians, students of international affairs, and
others. The defendants in these proceedings, charged with war crimes
and other offenses against international penal law, were prominent
figures in Hitler’s Germany and included such outstanding diplomats
and politicians as the State Secretary of the Foreign Office, von
Weizsaecker, and cabinet ministers von Krosigk and Lammers; military
leaders such as Field Marshals von Leeb, List, and von Kuechler; SS
leaders such as Ohlendorf, Pohl, and Hildebrandt; industrialists such
as Flick, Alfried Krupp, and the directors of I. G. Farben; and leading
professional men such as the famous physician Gerhard Rose, and the
jurist and Acting Minister of Justice, Schlegelberger.
In view of the weight of the accusations and the far-flung activities
of the defendants, and the extraordinary amount of official
contemporaneous German documents introduced in evidence, the records of
these trials constitute a major source of historical material covering
many events of the fateful years 1933 (and even earlier) to 1945, in
Germany and elsewhere in Europe.
The Nuernberg trials under Law No. 10 were carried out under the
direct authority of the Allied Control Council, as manifested in
that law, which authorized the establishment of the Tribunals. The
judicial machinery for the trials, including the Military Tribunals
and the Office, Chief of Counsel for War Crimes, was prescribed by
Military Government Ordinance No. 7 and was part of the occupation
administration for the American zone, the Office of Military Government
(OMGUS). Law No. 10, Ordinance No. 7, and other basic jurisdictional or
administrative documents are printed in full hereinafter.
The proceedings in these trials were conducted throughout in the German
and English languages, and were recorded in full by stenographic notes,
and by electrical sound recording of all oral proceedings. The 12
cases required over 1,200 days of court proceedings and the transcript
of these proceedings exceeds 330,000 pages, exclusive of hundreds of
documents, books, briefs, etc. Publication of all of this material,
accordingly, was quite unfeasible. This series, however, contains the
indictments, judgments, and other important portions of the record
of the 12 cases, and it is believed that these materials give a fair
picture of the trials, and as full and illuminating a picture as is
possible within the space available. Copies of the entire record of the
trials are available in the Library of Congress, the National Archives,
and elsewhere.
In some cases, due to time limitations, errors of one sort or another
have crept into the translations which were available to the Tribunal.
In other cases the same document appears in different trials, or even
at different parts of the same trial, with variations in translation.
For the most part these inconsistencies have been allowed to remain and
only such errors as might cause misunderstanding have been corrected.
Volume III of this series is dedicated to the case United States of
America _vs._ Josef Altstoetter, et al. (Case 3). This trial has
become known as the Justice Case, because all of the defendants held
positions in the Reich system of justice, as officials of the Reich
Ministry of Justice or as judges or prosecutors of the Special Courts
and the People’s Courts.
CONTENTS
_Page_
Preface III
Trials of War Criminals before Nuernberg Military
Tribunals IX
Declaration on German Atrocities X
Executive Order 9547 X
London Agreement of 8 August 1945 XI
Charter of The International Military Tribunal XIII
Control Council Law No. 10 XVIII
Executive Order 9679 XXII
General Orders Number 301, Hq. USFET, 24 October 1946 XXIII
Military Government--Germany, United States Zone,
Ordinance No. 7 XXIII
Military Government--Germany, Ordinance No. 11 XXIX
Officials of the Office of the Secretary General XXXI
“_The Justice Case_”
Introduction 3
Orders Constituting The Tribunal 7
Members of The Tribunal 13
Prosecution Counsel 14
Defense Counsel 14
I. Indictment 15
II. Arraignment 27
III. Opening Statements 31
A. For the Prosecution 31
B. For all Defendants 108
C. For the Defendant Schlegelberger 126
D. For the Defendant Klemm 130
E. For the Defendant Rothenberger 142
F. For the Defendant Lautz 150
G. For the Defendant von Ammon 152
H. For the Defendant Rothaug 154
IV. General Development of German Law During the Nazi
Period 159
A. Introduction 159
B. Selected Laws and Decrees, 1933–44 160
C. Organization and Structure of the German Judicial
System and the Reich Ministry of Justice 212
1. The Position and Responsibility of Leading
Officials in the Reich Ministry of Justice 212
2. Extracts from the “Basic Information” 214
3. Special Courts 218
4. People’s Court 231
5. Hereditary Health Courts 243
6. Civilian Courts Martial 250
D. Expert Opinion by Defense Witness Professor
Jahrreiss Concerning the Development of German
Law 252
E. The General Development of the Administration of
Justice under Hitler 284
V. Evidence Concerning Principal Issues in the Case 311
A. Introduction 311
B. Measures Outside the Judicial Process--Protective
Custody Transfer of Persons to Concentration
Camps and to the Police 313
C. Measures to Influence or Avoid the Judicial Process 352
1. Developments Principally During the Period When
Guertner Was Reich Minister of Justice
(1933–January 1941) 352
a. Examples of Relations of Officials of the Reich
Ministry of Justice, Judges, and Public
Prosecutors with Officials of the Nazi Party,
the Gestapo, the SD, the SS, and the SA 352
b. New Devices to Change Final Court
Decisions--The “Extraordinary Objection” and
the “Nullity Plea” 405
2. Further Developments Principally During the
Period When the Defendant Schlegelberger Was
Acting Reich Minister of Justice
(January 1941–August 1942) 417
a. The Influence of Hitler and Others Upon the
Administration of Justice 417
b. Defendant Rothenberger’s Writings on Judicial
Reform and his Guidance of Judges in his
District 467
c. Testimony of Defendant Rothenberger on his
Memorandum Concerning Judicial Reform 489
3. Further Developments Principally While Thierack
Was Reich Minister of Justice (August 1942–1945) 503
a. “Special Treatment.” Further Relations with
Officials of the Nazi Party, the Gestapo,
the SD, and the SS 503
b. Judges’ Letters Written by Thierack and the
Defendant Klemm 523
c. Lawyers’ Letter written by Thierack 554
d. The Withholding of Criminal Proceedings against
Persons Participating in “Lynch Justice”
against Allied Fliers 568
D. The Making and Application of Special Measures
Concerning Nationals of Occupied Territories,
Minority Groups and Races, and Alleged
“Asocials” 594
1. Introduction 594
2. Jews, Poles, Gypsies, and Others 594
3. Nationals of the Western Occupied Countries--The
“Night and Fog” Decree 774
E. High Treason and Treason. Malicious Acts.
Undermining the Military Efficiency. Public
Enemies 840
F. Handling of Religious Matters 912
VI. Final Statements of the Defendants 941
VII. Opinion and Judgment 954
The Jurisdictional Enactments 956
The Procedural Ordinance 957
Source of Authority of Control Council Law 10 959
Construction of Control Council Law 10--War Crimes
and Crimes Against Humanity 971
The _Ex Post Facto_ Principle 974
Crimes Against Humanity as Violative of International
Law 979
The Law in Action 1010
Treason and High Treason 1027
Membership in Criminal Organizations 1029
Crimes under the Night and Fog Decree (Nacht und Nebel
Erlass) 1031
Concentration Camps 1044
Trials under NN Decree 1046
Disposition of NN Cases 1053
Use of NN Prisoners in Armament Industry 1054
Clemency in the NN Cases 1055
Racial Persecution 1063
Defendant Schlegelberger 1081
Defendant Klemm 1087
Defendant Rothenberger 1107
Defendant Lautz 1118
Treason Cases Involving Border Crossings by Poles 1120
Defendant Mettgenberg 1128
Defendant von Ammon 1132
Defendant Joel 1134
Defendant Rothaug 1143
Defendant Barnickel 1156
Defendant Petersen 1156
Defendant Nebelung 1157
Defendant Cuhorst 1157
Defendant Oeschey 1159
Defendant Altstoetter 1170
VIII. Separate Opinion by Judge Blair 1178
Sentences 1199
IX. Confirmation of sentences by the Military Governor of
the United States Zone of Occupation 1202
X. Order of the United States Supreme Court Denying Writs
of Habeas Corpus 1204
Appendix 1205
Titles of Judges and Prosecutors at Regular German
Courts 1205
German Civil Service Ranks 1206
Table of Comparative Ranks 1207
Glossary of Terms and Abbreviations 1208
List of Witnesses in Case 3 1212
Index of Documents and Testimonies 1217
TRIALS OF WAR CRIMINALS BEFORE NUERNBERG MILITARY TRIBUNALS
_Case
No._ _United States of America _Popular name_ _Volume No._
against_
1 Karl Brandt, et al. Medical Case I and II
2 Erhard Milch Milch Case II
3 Josef Altstoetter, et al. Justice Case III
4 Oswald Pohl, et al. Pohl Case V
5 Friedrich Flick, et al. Flick Case VI
6 Carl Krauch, et al. I. G. Farben Case VII and VIII
7 Wilhelm List, et al. Hostage Case XI
8 Ulrich Greifelt, et al. RuSHA Case IV and V
9 Otto Ohlendorf, et al. Einsatzgruppen CaseIV
10 Alfried Krupp, et al. Krupp Case IX
11 Ernst von Weizsaecker, et al.Ministries Case XII, XIII, and
XIV
12 Wilhelm von Leeb, et al. High Command Case X and XI
Procedure XV
Arrangement by subject units for publication[1]
_Case
No._ _United States of America _Popular name_ _Volume No._
against_
_Medical_
1 Karl Brandt, et al. Medical Case I and II
2 Erhard Milch Milch Case II
_Legal_
3 Josef Altstoetter, et al. Justice Case III
Procedure XV
_Ethnological_ (_Nazi Racial Policy_)
9 Otto Ohlendorf, et al. Einsatzgruppen Case IV
8 Ulrich Greifelt, et al. RuSHA Case IV and V
4 Oswald Pohl, et al. Pohl Case V
_Economic_
5 Friedrich Flick, et al. Flick Case VI
6 Carl Krauch, et al. I. G. Farben Case VII and VIII
10 Alfried Krupp, et al. Krupp Case IX
_Military_
7 Wilhelm List, et al. Hostage Case XI
12 Wilhelm von Leeb, et al. High Command Case X and XI
_Political and Government_
11 Ernst von Weizsaecker, Ministries XII, XIII and
et al. XIV
DECLARATION ON GERMAN ATROCITIES
[Moscow Declaration]
Released November 1, 1943
THE UNITED KINGDOM, the United States and the Soviet Union have
received from many quarters evidence of atrocities, massacres and
cold-blooded mass executions which are being perpetrated by the
Hitlerite forces in the many countries they have overrun and from which
they are now being steadily expelled. The brutalities of Hitlerite
domination are no new thing and all the peoples or territories in
their grip have suffered from the worst form of government by terror.
What is new is that many of these territories are now being redeemed
by the advancing armies of the liberating Powers and that in their
desperation, the recoiling Hitlerite Huns are redoubling their ruthless
cruelties. This is now evidenced with particular clearness by monstrous
crimes of the Hitlerites on the territory of the Soviet Union which
is being liberated from the Hitlerites, and on French and Italian
territory.
Accordingly, the aforesaid three allied Powers, speaking in the
interests of the thirty-two [thirty-three] United Nations, hereby
solemnly declare and give full warning of their declaration as follows:
At the time of the granting of any armistice to any government which
may be set up in Germany, those German officers and men and members
of the Nazi party who have been responsible for, or have taken a
consenting part in the above atrocities, massacres, and executions,
will be sent back to the countries in which their abominable deeds were
done in order that they may be judged and punished according to the
laws of these liberated countries and of the free governments which
will be created therein. Lists will be compiled in all possible detail
from all these countries having regard especially to the invaded parts
of the Soviet Union, to Poland and Czechoslovakia, to Yugoslavia and
Greece, including Crete and other islands, to Norway, Denmark, the
Netherlands, Belgium, Luxemburg, France and Italy.
Thus, the Germans who take part in wholesale shootings of Italian
officers or in the execution of French, Dutch, Belgian, or Norwegian
hostages or of Cretan peasants, or who have shared in the slaughters
inflicted on the people of Poland or in territories of the Soviet Union
which are now being swept clear of the enemy, will know that they will
be brought back to the scene of their crimes and judged on the spot by
the peoples whom they have outraged. Let those who have hitherto not
imbrued their hands with innocent blood beware lest they join the ranks
of the guilty, for most assuredly the three allied Powers will pursue
them to the uttermost ends of the earth and will deliver them to their
accusers in order that justice may be done.
The above declaration is without prejudice to the case of the major
criminals, whose offences have no particular geographical localisation
and who will be punished by the joint decision of the Governments of
the Allies.
[Signed]
Roosevelt
Churchill
Stalin
EXECUTIVE ORDER 9547
PROVIDING FOR REPRESENTATION OF THE UNITED STATES IN
PREPARING AND PROSECUTING CHARGES OF ATROCITIES AND WAR CRIMES
AGAINST THE LEADERS OF THE EUROPEAN AXIS POWERS AND THEIR
PRINCIPAL AGENTS AND ACCESSORIES
By virtue of the authority vested in me as President and as Commander
in Chief of the Army and Navy, under the Constitution and statutes of
the United States, it is ordered as follows:
1. Associate Justice Robert H. Jackson is hereby designated to act as
the Representative of the United States and as its Chief of Counsel
in preparing and prosecuting charges of atrocities and war crimes
against such of the leaders of the European Axis powers and their
principal agents and accessories as the United States may agree with
any of the United Nations to bring to trial before an international
military tribunal. He shall serve without additional compensation but
shall receive such allowance for expenses as may be authorized by the
President.
2. The Representative named herein is authorized to select and
recommend to the President or to the head of any executive department,
independent establishment, or other federal agency necessary personnel
to assist in the performance of his duties hereunder. The head of each
executive department, independent establishment, and other federal
agency is hereby authorized to assist the Representative named herein
in the performance of his duties hereunder and to employ such personnel
and make such expenditures, within the limits of appropriations now
or hereafter available for the purpose, as the Representative named
herein may deem necessary to accomplish the purposes of this order, and
may make available, assign, or detail for duty with the Representative
named herein such members of the armed forces and other personnel as
may be requested for such purposes.
3. The Representative named herein is authorized to cooperate with, and
receive the assistance of, any foreign Government to the extent deemed
necessary by him to accomplish the purposes of this order.
HARRY S. TRUMAN
THE WHITE HOUSE,
_May 2, 1945_
(F. R. Doc. 45-7256; Filed, May 3, 1945; 10:57 a.m.)
LONDON AGREEMENT OF 8 AUGUST 1945
AGREEMENT by the Government of the UNITED STATES OF AMERICA, the
Provisional Government of the FRENCH REPUBLIC, the Government
of the UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND and
the Government of the UNION OF SOVIET SOCIALIST REPUBLICS for
the Prosecution and Punishment of the MAJOR WAR CRIMINALS OF THE
EUROPEAN AXIS
WHEREAS the United Nations have from time to time made
declarations of their intention that War Criminals shall be brought to
justice;
AND WHEREAS the Moscow Declaration of the 30th October 1943 on
German atrocities in Occupied Europe stated that those German Officers
and men and members of the Nazi Party who have been responsible for or
have taken a consenting part in atrocities and crimes will be sent back
to the countries in which their abominable deeds were done in order
that they may be judged and punished according to the laws of these
liberated countries and of the free Governments that will be created
therein;
AND WHEREAS this Declaration was stated to be without
prejudice to the case of major criminals whose offenses have no
particular geographical location and who will be punished by the joint
decision of the Governments of the Allies;
NOW THEREFORE the Government of the United States of America,
the Provisional Government of the French Republic, the Government
of the United Kingdom of Great Britain and Northern Ireland and the
Government of the Union of Soviet Socialist Republics (hereinafter
called “the Signatories”) acting in the interests of all the United
Nations and by their representatives duly authorized thereto have
concluded this Agreement.
=Article 1.= There shall be established after consultation with
the Control Council for Germany an International Military Tribunal
for the trial of war criminals whose offenses have no particular
geographical location whether they be accused individually or in their
capacity as members of organizations or groups or in both capacities.
=Article 2.= The constitution, jurisdiction and functions of the
International Military Tribunal shall be those set out in the Charter
annexed to this Agreement, which Charter shall form an integral part of
this Agreement.
=Article 3.= Each of the Signatories shall take the necessary
steps to make available for the investigation of the charges and trial
the major war criminals detained by them who are to be tried by the
International Military Tribunal. The Signatories shall also use their
best endeavors to make available for investigation of the charges
against and the trial before the International Military Tribunal such
of the major war criminals as are not in the territories of any of the
Signatories.
=Article 4.= Nothing in this Agreement shall prejudice the
provisions established by the Moscow Declaration concerning the return
of war criminals to the countries where they committed their crimes.
=Article 5.= Any Government of the United Nations may adhere to
this Agreement by notice given through the diplomatic channel to the
Government of the United Kingdom, who shall inform the other signatory
and adhering Governments of each such adherence.
=Article 6.= Nothing in this Agreement shall prejudice the
jurisdiction or the powers of any national or occupation court
established or to be established in any allied territory or in Germany
for the trial of war criminals.
=Article 7.= This agreement shall come into force on the day of
signature and shall remain in force for the period of one year and
shall continue thereafter, subject to the right of any Signatory to
give, through the diplomatic channel, one month’s notice of intention
to terminate it. Such termination shall not prejudice any proceedings
already taken or any findings already made in pursuance of this
Agreement.
IN WITNESS WHEREOF the Undersigned have signed the present
Agreement.
DONE in quadruplicate in London this 8th day of August 1945
each in English, French and Russian, and each text to have equal
authenticity.
For the Government of the United States of America
ROBERT H. JACKSON
For the Provisional Government of the French Republic
ROBERT FALCO
For the Government of the United Kingdom of Great Britain
and Northern Ireland
JOWITT, C.
For the Government of the Union of Soviet Socialist Republics
I. NIKITCHENKO
A. TRAININ
CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL
I. CONSTITUTION OF THE INTERNATIONAL MILITARY TRIBUNAL
=Article 1.= In pursuance of the Agreement signed on the 8th day of
August 1945 by the Government of the United States of America, the
Provisional Government of the French Republic, the Government of the
United Kingdom of Great Britain and Northern Ireland and the Government
of the Union of Soviet Socialist Republics, there shall be established
an International Military Tribunal (hereinafter called “the Tribunal”)
for the just and prompt trial and punishment of the major war criminals
of the European Axis.
=Article 2.= The Tribunal shall consist of four members, each with an
alternate. One member and one alternate shall be appointed by each of
the Signatories. The alternates shall, so far as they are able, be
present at all sessions of the Tribunal. In case of illness of any
member of the Tribunal or his incapacity for some other reason to
fulfill his functions, his alternate shall take his place.
=Article 3.= Neither the Tribunal, its members nor their alternates
can be challenged by the prosecution, or by the Defendants or their
Counsel. Each Signatory may replace its member of the Tribunal or his
alternate for reasons of health or for other good reasons, except
that no replacement may take place during a Trial, other than by an
alternate.
=Article 4.=
(_a_) The presence of all four members of the Tribunal or the
alternate for any absent member shall be necessary to constitute the
quorum.
(_b_) The members of the Tribunal shall, before any trial begins,
agree among themselves upon the selection from their number of a
President, and the President shall hold office during that trial, or as
may otherwise be agreed by a vote of not less than three members. The
principle of rotation of presidency for successive trials is agreed.
If, however, a session of the Tribunal takes place on the territory of
one of the four Signatories, the representative of that Signatory on
the Tribunal shall preside.
(_c_) Save as aforesaid the Tribunal shall take decisions by a
majority vote and in case the votes are evenly divided, the vote of
the President shall be decisive: provided always that convictions and
sentences shall only be imposed by affirmative votes of at least three
members of the Tribunal.
=Article 5.= In case of need and depending on the number of the matters
to be tried, other Tribunals may be set up; and the establishment,
functions, and procedure of each Tribunal shall be identical, and shall
be governed by this Charter.
II. JURISDICTION AND GENERAL PRINCIPLES
=Article 6.= The Tribunal established by the Agreement referred to
in Article 1 hereof for the trial and punishment of the major war
criminals of the European Axis countries shall have the power to try
and punish persons who, acting in the interests of the European Axis
countries, whether as individuals or as members of organizations,
committed any of the following crimes.
The following acts, or any of them, are crimes coming within the
jurisdiction of the Tribunal for which there shall be individual
responsibility:
(_a_) CRIMES AGAINST PEACE: namely, planning, preparation,
initiation or waging of a war of aggression, or a war in
violation of international treaties, agreements or assurances,
or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing;
(_b_) WAR CRIMES: namely, violations of the laws or customs
of war. Such violations shall include, but not be limited to,
murder, ill-treatment or deportation to slave labor or for
any other purpose of civilian population of or in occupied
territory, murder or ill-treatment of prisoners of war or
persons on the seas, killing of hostages, plunder of public
or private property, wanton destruction of cities, towns or
villages, or devastation not justified by military necessity;
(_c_) CRIMES AGAINST HUMANITY: namely, murder,
extermination, enslavement, deportation, and other inhumane acts
committed against any civilian population, before or during the
war; or persecutions on political, racial or religious grounds
in execution of or in connection with any crime within the
jurisdiction of the Tribunal, whether or not in violation of the
domestic law of the country where perpetrated.[2]
Leaders, organizers, instigators and accomplices participating in the
formulation or execution of a common plan or conspiracy to commit any
of the foregoing crimes are responsible for all acts performed by any
persons in execution of such plan.
=Article 7.= The official position of defendants, whether as Heads of
State or responsible officials in Government Departments, shall not be
considered as freeing them from responsibility or mitigating punishment.
=Article 8.= The fact that the Defendant acted pursuant to order of his
Government or of a superior shall not free him from responsibility,
but may be considered in mitigation of punishment if the Tribunal
determines that justice so requires.
=Article 9.= At the trial of any individual member of any group or
organization the Tribunal may declare (in connection with any act of
which the individual may be convicted) that the group or organization
of which the individual was a member was a criminal organization.
After receipt of the Indictment the Tribunal shall give such notice as
it thinks fit that the prosecution intends to ask the Tribunal to make
such declaration and any member of the organization will be entitled to
apply to the Tribunal for leave to be heard by the Tribunal upon the
question of the criminal character of the organization. The Tribunal
shall have power to allow or reject the application. If the application
is allowed, the Tribunal may direct in what manner the applicants shall
be represented and heard.
=Article 10.= In cases where a group or organization is declared
criminal by the Tribunal, the competent national authority of any
Signatory shall have the right to bring individuals to trial for
membership therein before national, military or occupation courts.
In any such case the criminal nature of the group or organization is
considered proved and shall not be questioned.
=Article 11.= Any person convicted by the Tribunal may be charged
before a national, military or occupation court, referred to in Article
10 of this Charter, with a crime other than of membership in a criminal
group or organization and such court may, after convicting him, impose
upon him punishment independent of and additional to the punishment
imposed by the Tribunal for participation in the criminal activities of
such group or organization.
=Article 12.= The Tribunal shall have the right to take proceedings
against a person charged with crimes set out in Article 6 of this
Charter in his absence, if he has not been found or if the Tribunal,
for any reason, finds it necessary, in the interests of justice, to
conduct the hearing in his absence.
=Article 13.= The Tribunal shall draw up rules for its procedure. These
rules shall not be inconsistent with the provisions of this Charter.
III. COMMITTEE FOR THE INVESTIGATION AND PROSECUTION
OF MAJOR WAR CRIMINALS
=Article 14.= Each Signatory shall appoint a Chief Prosecutor for the
investigation of the charges against and the prosecution of major war
criminals.
The Chief Prosecutors shall act as a committee for the following
purposes:
(_a_) to agree upon a plan of the individual work of each
of the Chief Prosecutors and his staff,
(_b_) to settle the final designation of major war
criminals to be tried by the Tribunal,
(_c_) to approve the Indictment and the documents to be
submitted therewith,
(_d_) to lodge the Indictment and the accompanying
documents with the Tribunal,
(_e_) to draw up and recommend to the Tribunal for its
approval draft rules of procedure, contemplated by Article 13 of
this Charter. The Tribunal shall have power to accept, with or
without amendments, or to reject, the rules so recommended.
The Committee shall act in all the above matters by a majority vote and
shall appoint a Chairman as may be convenient and in accordance with
the principle of rotation: provided that if there is an equal division
of vote concerning the designation of a Defendant to be tried by the
Tribunal, or the crimes with which he shall be charged, that proposal
will be adopted which was made by the party which proposed that the
particular Defendant be tried, or the particular charges be preferred
against him.
=Article 15.= The Chief Prosecutors shall individually, and acting in
collaboration with one another, also undertake the following duties:
(_a_) investigation, collection, and production before or
at the Trial of all necessary evidence,
(_b_) the preparation of the Indictment for approval by the
Committee in accordance with paragraph (c) of Article 14 hereof,
(_c_) the preliminary examination of all necessary
witnesses and of the Defendants,
(_d_) to act as prosecutor at the Trial,
(_e_) to appoint representatives to carry out such duties
as may be assigned to them,
(_f_) to undertake such other matters as may appear
necessary to them for the purposes of the preparation for and
conduct of the Trial.
It is understood that no witness or Defendant detained by any Signatory
shall be taken out of the possession of that Signatory without its
assent.
IV. FAIR TRIAL FOR DEFENDANTS
=Article 16.= In order to ensure fair trial for the Defendants, the
following procedure shall be followed:
(_a_) The Indictment shall include full particulars
specifying in detail the charges against the Defendants. A copy
of the Indictment and of all the documents lodged with the
Indictment, translated into a language which he understands,
shall be furnished to the Defendant at a reasonable time before
the Trial.
(_b_) During any preliminary examination or trial of a
Defendant he shall have the right to give any explanation
relevant to the charges made against him.
(_c_) A preliminary examination of a Defendant and his
Trial shall be conducted in, or translated into, a language
which the Defendant understands.
(_d_) A defendant shall have the right to conduct his own
defense before the Tribunal or to have the assistance of Counsel.
(_e_) A defendant shall have the right through himself or
through his Counsel to present evidence at the Trial in support
of his defense, and to cross-examine any witness called by the
Prosecution.
V. POWERS OF THE TRIBUNAL AND CONDUCT OF THE TRIAL
=Article 17.= The Tribunal shall have the power
(_a_) to summon witnesses to the Trial and to require their
attendance and testimony and to put questions to them,
(_b_) to interrogate any Defendant,
(_c_) to require the production of documents and other
evidentiary material,
(_d_) to administer oaths to witnesses,
(_e_) to appoint officers for the carrying out of any task
designated by the Tribunal including the power to have evidence
taken on commission.
=Article 18.= The Tribunal shall
(_a_) confine the Trial strictly to an expeditious hearing
of the issues raised by the charges,
(_b_) take strict measures to prevent any action which will
cause unreasonable delay, and rule out irrelevant issues and
statements of any kind whatsoever,
(_c_) deal summarily with any contumacy, imposing
appropriate punishment, including exclusion of any Defendant or
his Counsel from some or all further proceedings, but without
prejudice to the determination of the charges.
=Article 19.= The Tribunal shall not be bound by technical rules of
evidence. It shall adopt and apply to the greatest possible extent
expeditious and nontechnical procedure, and shall admit any evidence
which it deems to have probative value.
=Article 20.= The Tribunal may require to be informed of the nature
of any evidence before it is offered so that it may rule upon the
relevance thereof.
=Article 21.= The Tribunal shall not require proof of facts of common
knowledge but shall take judicial notice thereof. It shall also take
judicial notice of official governmental documents and reports of the
United Nations, including the acts and documents of the committees set
up in the various allied countries for the investigation of war crimes,
and the records and findings of military or other Tribunals of any of
the United Nations.
=Article 22.= The permanent seat of the Tribunal shall be in Berlin.
The first meetings of the members of the Tribunal and of the Chief
Prosecutors shall be held at Berlin in a place to be designated by
the Control Council for Germany. The first trial shall be held at
Nuremberg, and any subsequent trials shall be held at such places as
the Tribunal may decide.
=Article 23.= One or more of the Chief Prosecutors may take part in the
prosecution at each Trial. The function of any Chief Prosecutor may be
discharged by him personally, or by any person or persons authorized by
him.
The function of Counsel for a Defendant may be discharged at the
Defendant’s request by any Counsel professionally qualified to conduct
cases before the Courts of his own country, or by any other person who
may be specially authorized thereto by the Tribunal.
=Article 24.= The proceedings at the Trial shall take the following
course:
(_a_) The Indictment shall be read in court.
(_b_) The Tribunal shall ask each Defendant whether he
pleads “guilty” or “not guilty”.
(_c_) The Prosecution shall make an opening statement.
(_d_) The Tribunal shall ask the Prosecution and the
Defense what evidence (if any) they wish to submit to the
Tribunal, and the Tribunal shall rule upon the admissibility of
any such evidence.
(_e_) The witnesses for the Prosecution shall be examined
and after that the witnesses for the Defense. Thereafter
such rebutting evidence as may be held by the Tribunal to be
admissible shall be called by either the Prosecution or the
Defense.
(_f_) The Tribunal may put any question to any witness and
to any Defendant, at any time.
(_g_) The Prosecution and the Defense shall interrogate
and may cross-examine any witnesses and any Defendant who gives
testimony.
(_h_) The Defense shall address the court.
(_i_) The Prosecution shall address the court.
(_j_) Each Defendant may make a statement to the Tribunal.
(_k_) The Tribunal shall deliver judgment and pronounce
sentence.
=Article 25.= All official documents shall be produced, and all court
proceedings conducted, in English, French and Russian, and in the
language of the Defendant. So much of the record and of the proceedings
may also be translated into the language of any country in which
the Tribunal is sitting, as the Tribunal considers desirable in the
interests of justice and public opinion.
VI. JUDGMENT AND SENTENCE
=Article 26.= The judgment of the Tribunal as to the guilt or the
innocence of any Defendant shall give the reasons on which it is based,
and shall be final and not subject to review.
=Article 27.= The Tribunal shall have the right to impose upon a
Defendant, on conviction, death or such other punishment as shall be
determined by it to be just.
=Article 28.= In addition to any punishment imposed by it, the Tribunal
shall have the right to deprive the convicted person of any stolen
property and order its delivery to the Control Council for Germany.
=Article 29.= In case of guilt, sentences shall be carried out in
accordance with the orders of the Control Council for Germany, which
may at any time reduce or otherwise alter the sentences, but may not
increase the severity thereof. If the Control Council for Germany,
after any Defendant has been convicted and sentenced, discovers fresh
evidence which, in its opinion, would found a fresh charge against him,
the Council shall report accordingly to the Committee established under
Article 14 hereof, for such action as they may consider proper, having
regard to the interests of justice.
VII. EXPENSES
=Article 30.= The expenses of the Tribunal and of the Trials, shall be
charged by the Signatories against the funds allotted for maintenance
of the Control Council for Germany.
_PROTOCOL_
Whereas an Agreement and Charter regarding the Prosecution of War
Criminals was signed in London on the 8th August 1945, in the English,
French, and Russian languages.
And whereas a discrepancy has been found to exist between the originals
of Article 6, paragraph (_c_), of the Charter in the Russian language,
on the one hand, and the originals in the English and French languages,
on the other, to wit, the semi-colon in Article 6, paragraph (_c_), of
the Charter between the words “war” and “or”, as carried in the English
and French texts, is a comma in the Russian text,
And whereas it is desired to rectify this discrepancy:
NOW, THEREFORE, the undersigned, signatories of the said Agreement on
behalf of their respective Governments, duly authorized thereto, have
agreed that Article 6, paragraph (_c_), of the Charter in the Russian
text is correct, and that the meaning and intention of the Agreement
and Charter require that the said semi-colon in the English text should
be changed to a comma, and that the French text should be amended to
read as follows:
(_c_) LES CRIMES CONTRE L’HUMANITE: c’est à dire l’assassinat,
l’extermination, la réduction en esclavage, la déportation,
et tout autre acte inhumain commis contre toutes populations
civiles, avant ou pendant la guerre, ou bien les persécutions
pour des motifs politiques, raciaux, ou réligieux, lorsque
ces actes ou persécutions, qu’ils aient constitué ou non une
violation du droit interne du pays où ils ont été perpétrés, ont
été commis à la suite de tout crime rentrant dans la compétence
du Tribunal, ou en liaison avec ce crime.
IN WITNESS WHEREOF the Undersigned have signed the present Protocol.
DONE in quadruplicate in Berlin this 6th day of October, 1945, each in
English, French, and Russian, and each text to have equal authenticity.
For the Government of the United States of America
ROBERT H. JACKSON
For the Provisional Government of the French Republic
FRANÇOIS DE MENTHON
For the Government of the United Kingdom of Great
Britain and Northern Ireland
HARTLEY SHAWCROSS
For the Government of the Union of Soviet Socialist
Republics
R. RUDENKO
CONTROL COUNCIL LAW NO. 10
_PUNISHMENT OF PERSONS GUILTY OF WAR CRIMES, CRIMES
AGAINST PEACE AND AGAINST HUMANITY_
In order to give effect to the terms of the Moscow Declaration of 30
October 1943 and the London Agreement of 8 August 1945, and the Charter
issued pursuant thereto and in order to establish a uniform legal basis
in Germany for the prosecution of war criminals and other similar
offenders, other than those dealt with by the International Military
Tribunal, the Control Council enacts as follows:
Article I
The Moscow Declaration of 30 October 1943 “Concerning Responsibility
of Hitlerites for Committed Atrocities” and the London Agreement of
8 August 1945 “Concerning Prosecution and Punishment of Major War
Criminals of the European Axis” are made integral parts of this Law.
Adherence to the provisions of the London Agreement by any of the
United Nations, as provided for in Article V of that Agreement, shall
not entitle such Nation to participate or interfere in the operation of
this Law within the Control Council area of authority in Germany.
Article II
1. Each of the following acts is recognized as a crime:
(_a_) _Crimes against Peace._ Initiation of invasions of
other countries and wars of aggression in violation of international
laws and treaties, including but not limited to planning, preparation,
initiation or waging a war of aggression, or a war of violation of
international treaties, agreements or assurances, or participation
in a common plan or conspiracy for the accomplishment of any of the
foregoing.
(_b_) _War Crimes._ Atrocities or offences against persons
or property constituting violations of the laws or customs of war,
including but not limited to, murder, ill treatment or deportation
to slave labour or for any other purpose, of civilian population
from occupied territory, murder or ill treatment of prisoners of war
or persons on the seas, killing of hostages, plunder of public or
private property, wanton destruction of cities, towns or villages, or
devastation not justified by military necessity.
(_c_) _Crimes against Humanity._ Atrocities and offences,
including but not limited to murder, extermination, enslavement,
deportation, imprisonment, torture, rape, or other inhumane acts
committed against any civilian population, or persecutions on
political, racial or religious grounds whether or not in violation of
the domestic laws of the country where perpetrated.
(_d_) Membership in categories of a criminal group or organization
declared criminal by the International Military Tribunal.
2. Any person without regard to nationality or the capacity in which
he acted, is deemed to have committed a crime as defined in paragraph
1 of this Article, if he was (_a_) a principal or (_b_) was
an accessory to the commission of any such crime or ordered or abetted
the same or (_c_) took a consenting part therein or (_d_)
was connected with plans or enterprises involving its commission or
(_e_) was a member of any organization or group connected with
the commission of any such crime or (_f_) with reference to
paragraph 1 (_a_), if he held a high political, civil or military
(including General Staff) position in Germany or in one of its Allies,
co-belligerents or satellites or held high position in the financial,
industrial or economic life of any such country.
3. Any person found guilty of any of the Crimes above mentioned may
upon conviction be punished as shall be determined by the tribunal to
be just. Such punishment may consist of one or more of the following:
(_a_) Death.
(_b_) Imprisonment for life or a term of years, with or without hard labour.
(_c_) Fine, and imprisonment with or without hard labour, in lieu thereof.
(_d_) Forfeiture of property.
(_e_) Restitution of property wrongfully acquired.
(_f_) Deprivation of some or all civil rights.
Any property declared to be forfeited or the restitution of which is
ordered by the Tribunal shall be delivered to the Control Council for
Germany, which shall decide on its disposal.
4. (_a_) The official position of any person, whether as Head of
State or as a responsible official in a Government Department, does not
free him from responsibility for a crime or entitle him to mitigation
of punishment.
(_b_) The fact that any person acted pursuant to the order of his
Government or of a superior does not free him from responsibility for a
crime, but may be considered in mitigation.
5. In any trial or prosecution for a crime herein referred to, the
accused shall not be entitled to the benefits of any statute of
limitation in respect of the period from 30 January 1933 to 1 July
1945, nor shall any immunity, pardon or amnesty granted under the Nazi
regime be admitted as a bar to trial or punishment.
Article III
1. Each occupying authority, within its Zone of occupation,
(_a_) shall have the right to cause persons within such Zone
suspected of having committed a crime, including those charged with
crime by one of the United Nations, to be arrested and shall take under
control the property, real and personal, owned or controlled by the
said persons, pending decisions as to its eventual disposition.
(_b_) shall report to the Legal Directorate the names of all
suspected criminals, the reasons for and the places of their detention,
if they are detained, and the names and locations of witnesses.
(_c_) shall take appropriate measures to see that witnesses and
evidence will be available when required.
(_d_) shall have the right to cause all persons so arrested and
charged, and not delivered to another authority as herein provided, or
released, to be brought to trial before an appropriate tribunal. Such
tribunal may, in the case of crimes committed by persons of German
citizenship or nationality against other persons of German citizenship
or nationality, or stateless persons, be a German Court, if authorized
by the occupying authorities.
2. The tribunal by which persons charged with offenses hereunder shall
be tried and the rules and procedure thereof shall be determined or
designated by each Zone Commander for his respective Zone. Nothing
herein is intended to, or shall impair or limit the jurisdiction or
power of any court or tribunal now or hereafter established in any Zone
by the Commander thereof, or of the International Military Tribunal
established by the London Agreement of 8 August 1945.
3. Persons wanted for trial by an International Military Tribunal will
not be tried without the consent of the Committee of Chief Prosecutors.
Each Zone Commander will deliver such persons who are within his Zone
to that committee upon request and will make witnesses and evidence
available to it.
4. Persons known to be wanted for trial in another Zone or outside
Germany will not be tried prior to decision under Article IV unless the
fact of their apprehension has been reported in accordance with Section
1 (_b_) of this Article, three months have elapsed thereafter, and
no request for delivery of the type contemplated by Article IV has been
received by the Zone Commander concerned.
5. The execution of death sentences may be deferred by not to exceed
one month after the sentence has become final when the Zone Commander
concerned has reason to believe that the testimony of those under
sentence would be of value in the investigation and trial of crimes
within or without his Zone.
6. Each Zone Commander will cause such effect to be given to the
judgments of courts of competent jurisdiction, with respect to the
property taken under his control pursuant hereto, as he may deem proper
in the interest of justice.
Article IV
1. When any person in a Zone in Germany is alleged to have committed
a crime, as defined in Article II, in a country other than Germany or
in another Zone, the government of that nation or the Commander of
the latter Zone, as the case may be, may request the Commander of the
Zone in which the person is located for his arrest and delivery for
trial to the country or Zone in which the crime was committed. Such
request for delivery shall be granted by the Commander receiving it
unless he believes such person is wanted for trial or as a witness by
an International Military Tribunal, or in Germany, or in a nation other
than the one making the request, or the Commander is not satisfied
that delivery should be made, in any of which cases he shall have the
right to forward the said request to the Legal Directorate of the
Allied Control Authority. A similar procedure shall apply to witnesses,
material exhibits and other forms of evidence.
2. The Legal Directorate shall consider all requests referred to
it, and shall determine the same in accordance with the following
principles, its determination to be communicated to the Zone Commander.
(_a_) A person wanted for trial or as a witness by an International
Military Tribunal shall not be delivered for trial or required to give
evidence outside Germany, as the case may be, except upon approval of
the Committee of Chief Prosecutors acting under the London Agreement of
8 August 1945.
(_b_) A person wanted for trial by several authorities (other than
an International Military Tribunal) shall be disposed of in accordance
with the following priorities:
(1) If wanted for trial in the Zone in which he is, he should not be
delivered unless arrangements are made for his return after trial
elsewhere;
(2) If wanted for trial in a Zone other than that in which he is, he
should be delivered to that Zone in preference to delivery outside
Germany unless arrangements are made for his return to that Zone after
trial elsewhere;
(3) If wanted for trial outside Germany by two or more of the United
Nations, of one of which he is a citizen, that one should have priority;
(4) If wanted for trial outside Germany by several countries, not all
of which are United Nations, United Nations should have priority;
(5) If wanted for trial outside Germany by two or more of the United
Nations, then, subject to Article IV 2 (_b_) (3) above, that which
has the most serious charges against him, which are moreover supported
by evidence, should have priority.
Article V
The delivery, under Article IV of this Law, of persons for trial shall
be made on demands of the Governments or Zone Commanders in such a
manner that the delivery of criminals to one jurisdiction will not
become the means of defeating or unnecessarily delaying the carrying
out of justice in another place. If within six months the delivered
person has not been convicted by the Court of the zone or country to
which he has been delivered, then such person shall be returned upon
demand of the Commander of the Zone where the person was located prior
to delivery.
Done at Berlin, 20 December 1945.
JOSEPH T. MCNARNEY
General
B. L. MONTGOMERY
Field Marshal
L. KOELTZ
Général de Corps d’Armée
for P. KOENIG
Général d’Armée
G. ZHUKOV
Marshal of the Soviet Union
EXECUTIVE ORDER 9679
AMENDMENT OF EXECUTIVE ORDER NO. 9547 OF MAY 2, 1945,
ENTITLED “PROVIDING FOR REPRESENTATION OF THE UNITED STATES IN
PREPARING AND PROSECUTING CHARGES OF ATROCITIES AND WAR CRIMES
AGAINST THE LEADERS OF THE EUROPEAN AXIS POWERS AND THEIR
PRINCIPAL AGENTS AND ACCESSORIES.”
By virtue of the authority vested in me as President and Commander in
Chief of the Army and Navy, under the Constitution and statutes of the
United States, it is ordered as follows:
1. In addition to the authority vested in the Representative of the
United States and its Chief of Counsel by Paragraph 1 of Executive
Order No. 9547 of May 2, 1945, to prepare and prosecute charges of
atrocities and war crimes against such of the leaders of the European
Axis powers and their accessories as the United States may agree with
any of the United Nations to bring to trial before an international
military tribunal, such Representative and Chief of Counsel shall have
the authority to proceed before United States military or occupation
tribunals, in proper cases, against other Axis adherents, including
but not limited to cases against members of groups and organizations
declared criminal by the said international military tribunal.
2. The present Representative and Chief of Counsel is authorized
to designate a Deputy Chief of Counsel, to whom he may assign
responsibility for organizing and planning the prosecution of charges
of atrocities and war crimes, other than those now being prosecuted as
Case No. 1 in the international military tribunal, and, as he may be
directed by the Chief of Counsel, for conducting the prosecution of
such charges of atrocities and war crimes.
3. Upon vacation of office by the present Representative and Chief of
Counsel, the functions, duties, and powers of the Representative of
the United States and its Chief of Counsel, as specified in the said
Executive Order No. 9547 of May 2, 1945, as amended by this order,
shall be vested in a Chief of Counsel for War Crimes to be appointed by
the United States Military Governor for Germany or by his successor.
4. The said Executive Order No. 9547 of May 2, 1945, is amended
accordingly.
HARRY S. TRUMAN
THE WHITE HOUSE,
_January 16, 1946._
(F. R. Doc. 46-893; Filed, Jan. 17, 1946; 11:08 a. m.)
HEADQUARTERS US FORCES, EUROPEAN THEATER
GENERAL ORDERS } 24 October 1946
NO. 301 }
Office of Chief of Counsel for War Crimes, I
Chief Prosecutor, II
Announcement of Assignments, III
_I....OFFICE OF CHIEF OF COUNSEL FOR WAR CRIMES._ Effective this
date, the Office of Chief of Counsel for War Crimes is transferred
to the Office of Military Government for Germany (US). The Chief of
Counsel for War Crimes will report directly to the Deputy Military
Governor and will work in close liaison with the Legal Adviser of the
Office of Military Government for Germany and with the Theater Judge
Advocate.
_II....CHIEF PROSECUTOR._ Effective this date, the Chief of
Counsel for War Crimes will also serve as Chief Prosecutor under the
Charter of the International Military Tribunal, established by the
Agreement of 8 August 1945.
_III....ANNOUNCEMENT OF ASSIGNMENTS._ Effective this date,
Brigadier General Telford Taylor, USA, is announced as Chief of
Counsel for War Crimes, in which capacity he will also serve as Chief
Prosecutor for the United States under the Charter of the International
Military Tribunal, established by the Agreement of 8 August 1945.
BY COMMAND OF GENERAL McNARNEY:
C. R. HUEBNER
_Major General, GSC
Chief of Staff_
OFFICIAL:
GEORGE F. HERBERT
_Colonel_, AGD
_Adjutant General_
DISTRIBUTION: D
MILITARY GOVERNMENT--GERMANY
UNITED STATES ZONE
ORDINANCE NO. 7
_ORGANIZATION AND POWERS OF CERTAIN MILITARY TRIBUNALS_
Article I
The purpose of this Ordinance is to provide for the establishment of
military tribunals which shall have power to try and punish persons
charged with offenses recognized as crimes in Article II of Control
Council Law No. 10, including conspiracies to commit any such crimes.
Nothing herein shall prejudice the jurisdiction or the powers of other
courts established or which may be established for the trial of any
such offenses.
Article II
(_a_) Pursuant to the powers of the Military Governor for the
United States Zone of Occupation within Germany and further pursuant to
the powers conferred upon the Zone Commander by Control Council Law No.
10 and Articles 10 and 11 of the Charter of the International Military
Tribunal annexed to the London Agreement of 8 August 1945 certain
tribunals to be known as “Military Tribunals” shall be established
hereunder.
(_b_) Each such tribunal shall consist of three or more members
to be designated by the Military Governor. One alternate member may
be designated to any tribunal if deemed advisable by the Military
Governor. Except as provided in subsection (_c_) of this Article,
all members and alternates shall be lawyers who have been admitted to
practice, for at least five years, in the highest courts of one of the
United States or its territories or of the District of Columbia, or who
have been admitted to practice in the United States Supreme Court.
(_c_) The Military Governor may in his discretion enter into an
agreement with one or more other zone commanders of the member nations
of the Allied Control Authority providing for the joint trial of any
case or cases. In such cases the tribunals shall consist of three or
more members as may be provided in the agreement. In such cases the
tribunals may include properly qualified lawyers designated by the
other member nations.
(_d_) The Military Governor shall designate one of the members of
the tribunal to serve as the presiding judge.
(_e_) Neither the tribunals nor the members of the tribunals
or the alternates may be challenged by the prosecution or by the
defendants or their counsel.
(_f_) In case of illness of any member of a tribunal or his
incapacity for some other reason, the alternate, if one has been
designated, shall take his place as a member in the pending trial.
Members may be replaced for reasons of health or for other good
reasons, except that no replacement of a member may take place,
during a trial, other than by the alternate. If no alternate has been
designated, the trial shall be continued to conclusion by the remaining
members.
(_g_) The presence of three members of the tribunal or of two
members when authorized pursuant to subsection (_f_) _supra_
shall be necessary to constitute a quorum. In the case of tribunals
designated under (_c_) above the agreement shall determine the
requirements for a quorum.
(_h_) Decisions and judgments, including convictions and
sentences, shall be by majority vote of the members. If the votes of
the members are equally divided, the presiding member shall declare a
mistrial.
Article III
(_a_) Charges against persons to be tried in the tribunals
established hereunder shall originate in the Office of the Chief of
Counsel for War Crimes, appointed by the Military Governor pursuant to
paragraph 3 of the Executive Order Numbered 9679 of the President of
the United States dated 16 January 1946. The Chief of Counsel for War
Crimes shall determine the persons to be tried by the tribunals and he
or his designated representative shall file the indictments with the
Secretary General of the tribunals (see Article XIV, _infra_) and
shall conduct the prosecution.
(_b_) The Chief of Counsel for War Crimes, when in his judgment
it is advisable, may invite one or more United Nations to designate
representatives to participate in the prosecution of any case.
Article IV
In order to ensure fair trial for the defendants, the following
procedure shall be followed:
(_a_) A defendant shall be furnished, at a reasonable time before
his trial, a copy of the indictment and of all documents lodged with
the indictment, translated into a language which he understands.
The indictment shall state the charges plainly, concisely and with
sufficient particulars to inform defendant of the offenses charged.
(_b_) The trial shall be conducted in, or translated into, a
language which the defendant understands.
(_c_) A defendant shall have the right to be represented by
counsel of his own selection, provided such counsel shall be a person
qualified under existing regulations to conduct cases before the courts
of defendant’s country, or any other person who may be specially
authorized by the tribunal. The tribunal shall appoint qualified
counsel to represent a defendant who is not represented by counsel of
his own selection.
(_d_) Every defendant shall be entitled to be present at his trial
except that a defendant may be proceeded against during temporary
absences if in the opinion of the tribunal defendant’s interests will
not thereby be impaired, and except further as provided in Article
VI (_c_). The tribunal may also proceed in the absence of any
defendant who has applied for and has been granted permission to be
absent.
(_e_) A defendant shall have the right through his counsel to
present evidence at the trial in support of his defense, and to
cross-examine any witness called by the prosecution.
(_f_) A defendant may apply in writing to the tribunal for the
production of witnesses or of documents. The application shall state
where the witness or document is thought to be located and shall
also state the facts to be proved by the witness or the document and
the relevancy of such facts to the defense. If the tribunal grants
the application, the defendant shall be given such aid in obtaining
production of evidence as the tribunal may order.
Article V
The tribunals shall have the power
(_a_) to summon witnesses to the trial, to require their
attendance and testimony and to put questions to them;
(_b_) to interrogate any defendant who takes the stand to testify
in his own behalf, or who is called to testify regarding any other
defendant;
(_c_) to require the production of documents and other evidentiary
material;
(_d_) to administer oaths;
(_e_) to appoint officers for the carrying out of any task
designated by the tribunals including the taking of evidence on
commission;
(_f_) to adopt rules of procedure not inconsistent with this
Ordinance. Such rules shall be adopted, and from time to time as
necessary, revised by the members of the tribunal or by the committee
of presiding judges as provided in Article XIII.
Article VI
The tribunals shall
(_a_) confine the trial strictly to an expeditious hearing of the
issues raised by the charges;
(_b_) take strict measures to prevent any action which will cause
unreasonable delay, and rule out irrelevant issues and statements of
any kind whatsoever;
(_c_) deal summarily with any contumacy, imposing appropriate
punishment, including the exclusion of any defendant or his counsel
from some or all further proceedings, but without prejudice to the
determination of the charges.
Article VII
The tribunals shall not be bound by technical rules of evidence. They
shall adopt and apply to the greatest possible extent expeditious
and nontechnical procedure, and shall admit any evidence which they
deem to have probative value. Without limiting the foregoing general
rules, the following shall be deemed admissible if they appear to the
tribunal to contain information of probative value relating to the
charges: affidavits, depositions, interrogations, and other statements,
diaries, letters, the records, findings, statements and judgments of
the military tribunals and the reviewing and confirming authorities
of any of the United Nations, and copies of any document or other
secondary evidence of the contents of any document, if the original is
not readily available or cannot be produced without delay. The tribunal
shall afford the opposing party such opportunity to question the
authenticity or probative value of such evidence as in the opinion of
the tribunal the ends of justice require.
Article VIII
The tribunals may require that they be informed of the nature of any
evidence before it is offered so that they may rule upon the relevance
thereof.
Article IX
The tribunals shall not require proof of facts of common knowledge
but shall take judicial notice thereof. They shall also take judicial
notice of official governmental documents and reports of any of the
United Nations, including the acts and documents of the committees set
up in the various Allied countries for the investigation of war crimes,
and the records and findings of military or other tribunals of any of
the United Nations.
Article X
The determinations of the International Military Tribunal in the
judgment in Case No. 1 that invasions, aggressive acts, aggressive
wars, crimes, atrocities or inhumane acts were planned or occurred,
shall be binding on the tribunals established hereunder and shall not
be questioned except insofar as the participation therein or knowledge
thereof by any particular person may be concerned. Statements of
the International Military Tribunal in the judgment in Case No. 1
constitute proof of the facts stated, in the absence of substantial new
evidence to the contrary.
Article XI
The proceedings at the trial shall take the following course:
(_a_) The tribunal shall inquire of each defendant whether he has
received and had an opportunity to read the indictment against him and
whether he pleads “guilty” or “not guilty.”
(_b_) The prosecution may make an opening statement.
(_c_) The prosecution shall produce its evidence subject to the
cross examination of its witnesses.
(_d_) The defense may make an opening statement.
(_e_) The defense shall produce its evidence subject to the cross
examination of its witnesses.
(_f_) Such rebutting evidence as may be held by the tribunal to be
material may be produced by either the prosecution or the defense.
(_g_) The defense shall address the court.
(_h_) The prosecution shall address the court.
(_i_) Each defendant may make a statement to the tribunal.
(_j_) The tribunal shall deliver judgment and pronounce sentence.
Article XII
A Central Secretariat to assist the tribunals to be appointed hereunder
shall be established as soon as practicable. The main office of the
Secretariat shall be located in Nurnberg. The Secretariat shall consist
of a Secretary General and such assistant secretaries, military
officers, clerks, interpreters and other personnel as may be necessary.
Article XIII
The Secretary General shall be appointed by the Military Governor and
shall organize and direct the work of the Secretariat. He shall be
subject to the supervision of the members of the tribunals, except
that when at least three tribunals shall be functioning, the presiding
judges of the several tribunals may form the supervisory committee.
Article XIV
The Secretariat shall:
(_a_) Be responsible for the administrative and supply needs of
the Secretariat and of the several tribunals.
(_b_) Receive all documents addressed to tribunals.
(_c_) Prepare and recommend uniform rules of procedure, not
inconsistent with the provisions of this Ordinance.
(_d_) Secure such information for the tribunals as may be needed
for the approval or appointment of defense counsel.
(_e_) Serve as liaison between the prosecution and defense counsel.
(_f_) Arrange for aid to be given defendants and the prosecution
in obtaining production of witnesses or evidence as authorized by the
tribunals.
(_g_) Be responsible for the preparation of the records of the
proceedings before the tribunals.
(_h_) Provide the necessary clerical, reporting and interpretative
services to the tribunals and its members, and perform such other
duties as may be required for the efficient conduct of the proceedings
before the tribunals, or as may be requested by any of the tribunals.
Article XV
The judgments of the tribunals as to the guilt or the innocence of any
defendant shall give the reasons on which they are based and shall be
final and not subject to review. The sentences imposed may be subject
to review as provided in Article XVII, _infra_.
Article XVI
The tribunal shall have the right to impose upon the defendant, upon
conviction, such punishment as shall be determined by the tribunal to
be just, which may consist of one or more of the penalties provided in
Article II, Section 3 of Control Council Law No. 10.
Article XVII
(_a_) Except as provided in (_b_) _infra_, the record of
each case shall be forwarded to the Military Governor who shall have
the power to mitigate, reduce or otherwise alter the sentence imposed
by the tribunal, but may not increase the severity thereof.
(_b_) In cases tried before tribunals authorized by Article
II (_c_), the sentence shall be reviewed jointly by the zone
commanders of the nations involved, who may mitigate, reduce or
otherwise alter the sentence by majority vote, but may not increase the
severity thereof. If only two nations are represented, the sentence may
be altered only by the consent of both zone commanders.
Article XVIII
No sentence of death shall be carried into execution unless and until
confirmed in writing by the Military Governor. In accordance with
Article III, Section 5 of Law No. 10, execution of the death sentence
may be deferred by not to exceed one month after such confirmation if
there is reason to believe that the testimony of the convicted person
may be of value in the investigation and trial of other crimes.
Article XIX
Upon the pronouncement of a death sentence by a tribunal established
thereunder and pending confirmation thereof, the condemned will be
remanded to the prison or place where he was confined and there
be segregated from the other inmates, or be transferred to a more
appropriate place of confinement.
Article XX
Upon the confirmation of a sentence of death the Military Governor will
issue the necessary orders for carrying out the execution.
Article XXI
Where sentence of confinement for a term of years has been imposed the
condemned shall be confined in the manner directed by the tribunal
imposing sentence. The place of confinement may be changed from time to
time by the Military Governor.
Article XXII
Any property declared to be forfeited or the restitution of which is
ordered by a tribunal shall be delivered to the Military Governor, for
disposal in accordance with Control Council Law No. 10, Article II (3).
Article XXIII
Any of the duties and functions of the Military Governor provided for
herein may be delegated to the Deputy Military Governor. Any of the
duties and functions of the Zone Commander provided for herein may
be exercised by and in the name of the Military Governor and may be
delegated to the Deputy Military Governor.
This Ordinance becomes effective 18 October 1946.
BY ORDER OF MILITARY GOVERNMENT:
MILITARY GOVERNMENT--GERMANY
ORDINANCE NO. 11
_AMENDING MILITARY GOVERNMENT ORDINANCE NO. 7 OF 18 OCTOBER
1946, ENTITLED “ORGANIZATION AND POWERS OF CERTAIN MILITARY
TRIBUNALS”_
Article I
Article V of Ordinance No. 7 is amended by adding thereto a new
subdivision to be designated “(_g_)”, reading as follows:
“(_g_) The presiding judges, and, when established, the supervisory
committee of presiding judges provided in Article XIII shall assign the
cases brought by the Chief of Counsel for War Crimes to the various
Military Tribunals for trial.”
Article II
Ordinance No. 7 is amended by adding thereto a new article following
Article V to be designated Article V-B, reading as follows:
“(_a_) A joint session of the Military Tribunals may be called by
any of the presiding judges thereof or upon motion, addressed to each
of the Tribunals, of the Chief of Counsel for War Crimes or of counsel
for any defendant whose interests are affected, to hear argument upon
and to review any interlocutory ruling by any of the Military Tribunals
on a fundamental or important legal question either substantive or
procedural, which ruling is in conflict with or is inconsistent with a
prior ruling of another of the Military Tribunals.
“(_b_) A joint session of the Military Tribunals may be called in
the same manner as provided in subsection (_a_) of this Article to
hear argument upon and to review conflicting or inconsistent final
rulings contained in the decisions or judgments of any of the Military
Tribunals on a fundamental or important legal question, either
substantive or procedural. Any motion with respect to such final ruling
shall be filed within ten (10) days following the issuance of decision
or judgment.
“(_c_) Decisions by joint sessions of the Military Tribunals, unless
thereafter altered in another joint session, shall be binding upon all
the Military Tribunals. In the case of the review of final rulings by
joint sessions, the judgments reviewed may be confirmed or remanded for
action consistent with the joint decision.
“(_d_) The presence of a majority of the members of each Military
Tribunal then constituted is required to constitute a quorum.
“(_e_) The members of the Military Tribunals shall, before any joint
session begins, agree among themselves upon the selection from their
number of a member to preside over the joint session.
“(_f_) Decisions shall be by majority vote of the members. If the votes
of the members are equally divided, the vote of the member presiding
over the session shall be decisive.”
Article III
Subdivisions (_g_) and (_h_) of Article XI of Ordinance No. 7 are
deleted; subdivision (_i_) is relettered “(_h_)”; subdivision (_j_) is
relettered “(_i_)”; and a new subdivision, to be designated “(_g_)”, is
added, reading as follows:
“(_g_) The prosecution and defense shall address the court in such
order as the Tribunal may determine.”
This Ordinance becomes effective 17 February 1947.
BY ORDER OF THE MILITARY GOVERNMENT:
OFFICIALS OF THE OFFICE OF THE SECRETARY GENERAL
Secretaries General
MR. CHARLES E. SANDS From 25 October 1946 to 17 November 1946.
MR. GEORGE M. READ From 18 November 1946 to 19 January 1947.
MR. CHARLES E. SANDS From 20 January 1947 to 18 April 1947.
COLONEL JOHN E. RAY From 19 April 1947 to 9 May 1948.
DR. HOWARD H. RUSSELL From 10 May 1948 to 2 October 1949.
Deputy and Executive Secretaries General
MR. CHARLES E. SANDS Deputy from 18 November 1946 to 19 January
1947.
JUDGE RICHARD D. DIXON Acting Deputy from 25 November 1946 to 5
March 1947.
MR. HENRY A. HENDRY Deputy from 6 March 1947 to 9 May 1947.
MR. HOMER B. MILLARD Executive Secretary General from 3 March
1947 to 5 October 1947.
LIEUTENANT COLONEL
HERBERT N. HOLSTEN Executive Secretary General from 6 October
1947 to 30 April 1949.
Assistant Secretaries General
[Since many trials were being held simultaneously, an Assistant
Secretary General was designated by the Secretary General for each
case. Assistant Secretaries General are listed with the members of each
tribunal.]
Marshals of Military Tribunals
COLONEL CHARLES W. MAYS From 4 November 1946 to 5 September
1947.
COLONEL SAMUEL L. METCALFE From 7 September 1947 to 29 August
1948.
CAPTAIN KENYON S. JENCKES From 30 August 1948 to 30 April 1949.
Court Archives
MRS. BARBARA S. MANDELLAUB Chief from 21 February 1947 to 15
November 1949.
Defense Information Center
MR. LAMBERTUS WARTENA Defense Administrator from 3 March
1947 to 16 September 1947.
LIEUTENANT COLONEL
HERBERT N. HOLSTEN Defense Administrator from 17
September 1947 to 19 October 1947.
MAJOR ROBERT G. SCHAEFER Defense Administrator from 20 October
1947 to 30 April 1949.
“_The Justice Case_”
Military Tribunal III
_Case 3_
THE UNITED STATES OF AMERICA
--_against_--
JOSEF ALTSTOETTER, WILHELM VON AMMON, PAUL BARNICKEL, HERMANN
CUHORST, KARL ENGERT, GUENTHER JOEL, HERBERT KLEMM, ERNST
LAUTZ, WOLFGANG METTGENBERG, GUENTHER NEBELUNG, RUDOLF OESCHEY,
HANS PETERSEN, OSWALD ROTHAUG, CURT ROTHENBERGER, FRANZ
SCHLEGELBERGER, and CARL WESTPHAL, _Defendants_
INTRODUCTION
The “Justice Case” was officially designated United States of America
_vs._ Josef Altstoetter, et al. (Case 3). Of the sixteen
defendants indicted, nine were officials in the Reich Ministry of
Justice. The two persons who held the position of Reich Minister of
Justice during the Hitler regime, Franz Guertner and Georg Thierack,
were both dead before the indictment was filed. Between Guertner’s
death in January 1941 and Thierack’s appointment in August 1942, the
defendant Schlegelberger served as Acting Reich Minister of Justice.
The defendants Schlegelberger, Rothenberger, and Klemm each had held
the position of Under Secretary (“Staatssekretaer”, also translated as
State Secretary) in the Reich Ministry of Justice. Two other officials
of this Ministry were indicted but not tried: the defendant Westphal
committed suicide in Nuernberg jail after indictment and before the
opening of the trial; a mistrial was declared as to the defendant
Engert, whose physical condition prevented his presence in court
for most of the trial. The defendants who were not officials of the
Reich Ministry of Justice included the chief public prosecutor of the
People’s Court and several prosecutors and judges of both the Special
Courts and the People’s Courts. Both the Special and the People’s
Courts were established as important parts of the administration of
justice during the Nazi regime.
All sixteen defendants named in the indictment were charged with
criminal responsibility under the first three counts of the indictment.
Count one charged participation in a conspiracy to commit war crimes
and crimes against humanity; count two alleged the commission of
war crimes against civilians of territories occupied by Germany and
against members of the armed forces of nations at war with Germany
after September 1939; count three charged the commission of crimes
against humanity, including offenses against both German civilians
and the nationals of occupied countries, after the outbreak of World
War II. The specific offenses charged included murder, persecution on
political, racial, and religious grounds, deportation and enslavement,
plunder of private property, torture and other atrocities. Count four
charged seven of the defendants with membership in the SS, the SD, or
the Leadership Corps of the Nazi Party, all organizations declared to
be criminal by the International Military Tribunal.
During the course of the trial the Tribunal ruled with respect to count
one “that neither the Charter of the International Military Tribunal
nor Control Council Law No. 10 has defined conspiracy to commit a
war crime or crime against humanity as a separate substantive crime;
therefore, this Tribunal has no jurisdiction to try any defendant upon
a charge of conspiracy considered as a separate substantive offense.”
However, the Tribunal ruled further that count one “also alleges
unlawful participation in the formulation and execution of plans to
commit war crimes and crimes against humanity which actually involved
the commission of such crimes. We therefore cannot properly strike
the whole of count one from the indictment, but, insofar as count one
charges the commission of the alleged crime of conspiracy as a separate
substantive offense, distinct from any war crime or crime against
humanity, the Tribunal will disregard that charge.” Judge Blair, in a
separate opinion filed at the time of judgment, dissented from this
ruling, declaring that the Tribunal should have declared that the
military tribunals created under Ordinance No. 7 had jurisdiction over
“conspiracy to commit” any and all crimes defined in Article II of
Control Council Law No. 10.
Of the 14 defendants who stood trial to the end, ten were convicted on
one or more counts, and four were acquitted on all counts.
The Justice Case was tried at the Palace of Justice in Nuernberg
before Military Tribunal III. Early in June 1947, the presiding judge
became ill, and for this reason the sessions of the Tribunal had
to be temporarily suspended. Thereupon the Tribunal designated the
other two members and the alternate member as commissioners of the
Tribunal to hear the testimony of a number of available witnesses
whose affidavits had been introduced in evidence by the prosecution
and who had been requested for cross-examination by the defense.
Accordingly, the commissioners held hearings to take the further
testimony of 13 prosecution affiants on 3, 4, and 5 June 1947. The
presiding judge still remained incapacitated due to severe illness.
Consequently, on 19 June 1947, shortly before the beginning of the
defense case, the Tribunal was reconstituted pursuant to Article II
of Military Government Ordinance No. 7, and the alternate judge, who
had been present throughout the sessions of the trial, replaced the
incapacitated member. Hearings before the Tribunal or the commissioners
of the Tribunal were held on 129 separate days. The trial, from
indictment to judgment, lasted 11 months. The course of the trial and
subsequent related proceedings is shown in the following table:
Indictment filed 4 January 1947
Arraignment 17 February 1947
Prosecution opening statement 5 March 1947
Defense opening statements 23 June 1947
Prosecution closing statement 13–14 October 1947
Defense closing statements 14–18 October 1947
Prosecution rebuttal closing 18 October 1947
Final statements of defendants 18 October 1947
Judgment 3–4 December 1947
Sentences 4 December 1947
Affirmation of sentences by the Military
Governor of the United States Zone of
Occupation 18 January 1949
Order of the Supreme Court of the United
States denying Writs of Habeas Corpus. 2 May 1949
The English transcript of the Court proceedings, including the
judgment, the separate opinion of Judge Blair, and the sentences, runs
to 10,964 mimeographed pages. The prosecution introduced into evidence
641 written exhibits (some of which contained several documents),
and the defense 1,452 written exhibits. The exhibits offered by
the prosecution and the defense contained documents, photographs,
affidavits, interrogatories, letters, charts, and other written
evidence. Approximately 600 of these written exhibits were affidavits,
more than 500 of which were introduced by the defense. The Tribunal and
the members thereof sitting as commissioners heard the testimony of
approximately 140 witnesses, including that of twelve of the defendants
who elected to testify. Each of the defendants who testified was
subject to examination on behalf of the other defendants. Many of the
witnesses heard by the Tribunal itself, and all of the witnesses whose
testimony was taken in the commission, were prosecution affiants who
were called for cross-examination by the defense.
The case-in-chief of the prosecution began on 5 March 1947 and ended
on 5 June 1947, subject to the understanding that several prosecution
affiants requested for cross-examination by the defense and not
immediately available for cross-examination, could be cross-examined by
the defense during the defense case. The Tribunal was in recess between
28 May 1947 and 23 June 1947, during which period the commissioners of
the Tribunals held hearings on three successive days. The defense case
began on 23 June 1947 and ended on 26 September 1947. The Tribunal was
in recess between 26 September 1947 and 13 October 1947, to give both
the prosecution and the defense additional time to prepare the closing
statements.
The members of the Tribunal and prosecution and defense counsel are
listed on the ensuing pages. Prosecution counsel were assisted in
preparing the case by Walter Rapp (Chief of the Evidence Division),
Fred Niebergall (Chief of the Document Branch), Peter Beauvais,
interrogator, and Arnold Buchtal and Henry Einstein, research and
documentary analysts.
* * * * * * *
Selection and arrangement of the Justice Case material published herein
was accomplished principally by Robert D. King, working under the
general supervision of Drexel A. Sprecher, Deputy Chief Counsel and
Director of Publications, Office U.S. Chief of Counsel for War Crimes.
Arnold Buchtal, Paul H. Gantt, Gertrude Ferencz, Wolfgang Hildesheimer,
Julia Kerr, and Walter Schonfeld assisted in selecting, compiling,
editing, and indexing the numerous papers.
John H. E. Fried, Special Legal Consultant to the Tribunals, reviewed
and approved the selection and arrangement of the material as the
designated representative of the Nuernberg Tribunals.
Final compilation and editing of the manuscript for printing was
administered by the War Crimes Division, Office of the Judge Advocate
General, under the supervision of Richard A. Olbeter, Chief, Special
Projects Branch, with Evelyn A. Goldblatt and Robert F. Phelps as
editors and Harry Jacobs and John W. Mosenthal as research analysts.
ORDERS CONSTITUTING THE TRIBUNAL
OFFICE OF MILITARY GOVERNMENT FOR GERMANY (U.S.) APO 472
GENERAL ORDERS }
No. 11 } 14 February 1947
_Pursuant to Military Government Ordinance No. 7_
1. Effective as of 13 February 1947, pursuant to Military Government
Ordinance No. 7, 24 October 1946, entitled “Organization and Powers
of Certain Military Tribunals,” there is hereby constituted, Military
Tribunal III.
2. The following are designated as members of Military Tribunal III:
CARRINGTON T. MARSHALL Presiding Judge
JAMES T. BRAND Judge
MALLORY B. BLAIR Judge
JUSTIN WILLIAM HARDING[3] Alternate Judge
3. The Tribunal shall convene at Nurnberg, Germany, to hear such cases
as may be filed by the Chief of Counsel for War Crimes or by his duly
designated representative.
BY COMMAND OF LIEUTENANT GENERAL CLAY:
C. K. GAILEY
_Brigadier General, GSC
Chief of Staff_
OFFICIAL:
A. D. VAN ORSDEL
_Lieutenant Colonel, AGD
Acting Adjutant General_
SEAL:
Office of Military Government for Germany (US)
Official
DISTRIBUTION: “B” plus
2--AG MRU, USFET
HEADQUARTERS, EUROPEAN COMMAND
GENERAL ORDERS }
No. 69 } 27 June 1947
_Pursuant to Military Government Ordinance No. 7_
1. Confirming verbal order Commander-in-Chief, European Command, 19
June 1947, and pursuant to Military Government Ordinance No. 7, 24
October 1946, entitled “Organization and Powers of Certain Military
Tribunals”, JAMES T. BRAND is appointed Presiding Judge of
Military Tribunal III vice CARRINGTON T. MARSHALL, relieved
because of illness.
2. Confirming verbal order Commander-in-Chief, European Command, 19
June 1947, JUSTIN WILLIAM HARDING,[4] Alternate Judge, is
appointed Judge for Military Tribunal III.
BY COMMAND OF GENERAL CLAY:
C. R. HUEBNER
_Lieutenant General, GSC
Chief of Staff_
OFFICIAL:
GEORGE E. NORTON, JR.
_Lieutenant Colonel, AGD
Asst. Adjutant General_
Seal: Official Headquarters
European Command
DISTRIBUTION: “B” plus
2--AG, MRU, EUCOM
2--The Adjutant General
War Department
Attn: Operations Branch AG AO-I
1--OPO Reports Section
800--Hq EUCOM
[Illustration: TRIBUNAL III--CASE THREE
_James T. Brand; Carrington T. Marshall, presiding; Mallory
P. Blair; Justin W. Harding, alternate._ [_Presiding Judge
Marshall was obliged to retire because of illness at which time
Judge Brand became presiding judge and Alternate Judge Harding
became a member judge._]
[Illustration:
_The defendants in the dock. Left to right: front row, Franz
Schlegelberger, Herbert Klemm, Curt Rothenberger, Ernst Lautz,
Wolfgang Mettgenberg, Wilhelm Von Ammon, Guenther Joel, Oswald
Rothaug, Paul Barnickel, Hans Petersen, Guenther Nebelung. Back
row, Hermann Cuhorst, Rudolf Oeschey, and Joseph Altstoetter. In
front of defendants’ dock are defense counsel. Interpreters are
behind glass partition at upper right._]
[Illustration: _Charles M. LaFollette, Deputy Chief Counsel at
the reading of the indictment._]
[Illustration: _Defendant Hermann Cuhorst, on the witness
stand, conferring with defense counsel._]
MEMBERS OF THE TRIBUNAL[5]
JUDGE CARRINGTON T. MARSHALL, Presiding Judge (to 19 June 1947).
Formerly Chief Justice of the Supreme Court of the State of Ohio.
JUDGE JAMES T. BRAND, Member (to 19 June 1947), and Presiding Judge
(from 19 June 1947).
Justice of the Supreme Court of the State of Oregon.
JUDGE MALLORY B. BLAIR, Member.
Associate Justice of the Court of Civil Appeals for the Third
District of the State of Texas.
JUDGE JUSTIN W. HARDING, Alternate Member (to 19 June 1947),
and Member (from 19 June 1947).
Formerly Assistant Attorney General of the State of Ohio and
District Judge of the First Division of the Territory of Alaska.
ASSISTANT SECRETARIES GENERAL
ARTHUR P. NESBIT From 6 March 1947 to 6 May 1947.
C. G. WILLSIE From 9 May 1947 to 4 December 1947.
PROSECUTION COUNSEL
Chief of Counsel:
BRIGADIER GENERAL TELFORD TAYLOR
Deputy Chief Counsel:
CHARLES M. LAFOLLETTE
Associate Counsel:
ROBERT D. KING
ALFRED M. WOOLEYHAN
Assistant Counsel:
SADIE B. ARBUTHNOT
DEFENDANTS AND DEFENSE COUNSEL
_Defendant_ _Defense Counsel_ _Assistant Defense Counsel_
ALTSTOETTER, JOSEF DR. HERMANN ORTH DR. LUDWIG ALTSTOETTER
VON AMMON, WILHELM DR. EGON KUBUSCHOK DR. HUBERTUS JANICKI
BARNICKEL, PAUL DR. EDMUND TIPP RUDOLF SCHMIDT
CUHORST, HERMANN DR. RICHARD BRIEGER KARL HASSFUERTHER
ENGERT, KARL DR. HANNS MARX
(to 31 July 1947)
DR. HEINRICH LINK
(from 31 July 1947)
JOEL, GUNTHER DR. CARL HAENSEL HERBERT THIELE-FREDERSDORF
KLEMM, HERBERT DR. ALFRED SCHILF DR. ERHARD HEINKE
LAUTZ, ERNST DR. HEINRICH GRUBE
METTGENBERG, WOLFGANG DR. ALFRED SCHILF DR. ERHARD HEINKE
NEBELUNG, GUENTHER DR. KARL DOETZER GERDA DOETZER
OESCHEY, RUDOLF DR. WERNER SCHUBERT DR. KARL PRIBILLA
PETERSEN, HANS DR. RUDOLF ASCHENAUER DR. OTFRIED SCHWARZ
ROTHAUG, OSWALD DR. RUDOLF KOESSL ADOLF HUETTL
ROTHENBERGER, CURT DR. ERICH WANDSCHNEIDER DR. HELMUT BOTHE
SCHLEGELBERGER, FRANZ DR. EGON KUBUSCHOK DR. HUBERTUS JANICKI
I. INDICTMENT
The United States of America, by the undersigned Telford Taylor, Chief
of Counsel for War Crimes, duly appointed to represent said Government
in the prosecution of war criminals, charges that the defendants
herein participated in a common design or conspiracy to commit and did
commit war crimes and crimes against humanity, as defined in Control
Council Law No. 10, duly enacted by the Allied Control Council on 20
December 1945. These crimes included murders, brutalities, cruelties,
tortures, atrocities, plunder of private property, and other inhumane
acts, as set forth in counts one, two, and three of this indictment.
Certain defendants are further charged with membership in criminal
organizations, as set forth in count four of this indictment.
The persons accused as guilty of these crimes and accordingly named as
defendants in this case are:
JOSEF ALTSTOETTER--Chief (Ministerialdirektor) of the Civil Law and
Procedure Division (Abteilung VI) of the Reich Ministry of Justice; and
Oberfuehrer in the SS.
WILHELM VON AMMON--Ministerial Counsellor (Ministerialrat) of the
Criminal Legislation and Administration Division (Abteilung IV) of
the Reich Ministry of Justice and coordinator of proceedings against
foreigners for offenses against Reich occupational forces abroad.
PAUL BARNICKEL--Senior Public Prosecutor (Reichsanwalt) of the People’s
Court (Volksgerichtshof); Sturmfuehrer in the SA.
HERMANN CUHORST--Chief Justice (Senatspraesident) of the Special Court
(Sondergericht) in Stuttgart; Chief Justice of the First Criminal
Senate of the District Court (Landgericht) in Stuttgart; member of the
Leadership Corps of the Nazi Party at Gau executive level; sponsoring
member (Foerderndes Mitglied) of the SS.
KARL ENGERT--Chief (Ministerialdirektor) of the Penal Administration
Division (Abteilung V) and of the secret Prison Inmate Transfer
Division (Abteilung XV) of the Reich Ministry of Justice; Oberfuehrer
in the SS; Vice President of the People’s Court (Volksgerichtshof);
Ortsgruppenleiter in the NSDAP Leadership Corps.
GUENTHER JOEL--Legal Adviser (Referent) to the Reich Minister of
Justice concerning criminal prosecutions; Chief Public Prosecutor
(Generalstaatsanwalt) of Westphalia at Hamm; Obersturmbannfuehrer in
the SS; Untersturmbannfeuhrer [sic] in the SD.
HERBERT KLEMM--State Secretary (Staatssekretaer)[6] of the Reich
Ministry of Justice; Director (Ministerialdirektor) of the Legal
Education and Training Division (Abteilung II) in the Ministry of
Justice; Deputy Director of the National Socialist Lawyers League (NS
Rechtswahrerbund); Obergruppenfuehrer in the SA.
ERNST LAUTZ--Chief Public Prosecutor (Oberreichsanwalt) of the People’s
Court.
WOLFGANG METTGENBERG--Representative of the Chief (Ministerialdirigent)
of the Criminal Legislation and Administration Division (Abteilung IV)
of the Reich Ministry of Justice, particularly supervising criminal
offenses against German occupational forces in occupied territories.
GUENTHER NEBELUNG--Chief Justice of the Fourth Senate of the People’s
Court; Sturmfuehrer in the SA; Ortsgruppenleiter in the NSDAP
Leadership Corps.
RUDOLF OESCHEY--Judge (Landgerichtsrat) of the Special Court in
Nuernberg and successor to the defendant Rothaug as Chief Justice
(Landgerichtsdirektor) of the same court; member of the Leadership
Corps of the Nazi Party at Gau executive level (Gauhauptstellenleiter);
an executive (Kommissarischer Leiter) of the National Socialist Lawyers
League.
HANS PETERSEN--Lay Judge of the First Senate of the People’s Court; Lay
Judge of the Special Senate (Besonderer Senat) of the People’s Court;
Obergruppenfuehrer in the SA.
OSWALD ROTHAUG--Senior Public Prosecutor (Reichsanwalt) of the People’s
Court; formerly Chief Justice of the Special Court in Nuernberg; member
of the Leadership Corps of the Nazi Party at Gau executive level.
CURT ROTHENBERGER--State Secretary (Staatssekretaer) of the Reich
Ministry of Justice; deputy president of the Academy of German Law
(Akademie fuer deutsches Recht); Gaufuehrer of the National Socialist
Lawyers League.
FRANZ SCHLEGELBERGER--State Secretary; Acting Reich Minister of Justice.
CARL WESTPHAL--Ministerial Counsellor (Ministerialrat) of the Criminal
Legislation and Administration Division (Abteilung IV) of the Reich
Ministry of Justice, and officially responsible for questions of
criminal procedure and penal execution within the Reich; Ministry
coordinator for nullity pleas against adjudicated sentences.
COUNT ONE--THE COMMON DESIGN AND CONSPIRACY
1. Between January 1933 and April 1945 all of the defendants herein,
acting pursuant to a common design, unlawfully, willfully, and
knowingly did conspire and agree together and with each other and with
divers other persons, to commit war crimes and crimes against humanity,
as defined in Control Council Law No. 10, Article II.
2. Throughout the period covered by this indictment all of the
defendants herein, acting in concert with each other and with others,
unlawfully, willfully, and knowingly were principals in, accessories
to, ordered, abetted, took a consenting part in, and were connected
with plans and enterprises involving, the commission of war crimes and
crimes against humanity.
3. All of the defendants herein, acting in concert with each other
and with others, unlawfully, willfully, and knowingly participated as
leaders, organizers, instigators, and accomplices in the formulation
and execution of the said common design, conspiracy, plans, and
enterprises to commit, and which involved the commission of, war
crimes and crimes against humanity, and accordingly are individually
responsible for their own acts and for all acts performed by any person
or persons in execution of the said common design, conspiracy, plans,
and enterprises.
4. The said common design, conspiracy, plans, and enterprises embraced
the commission of war crimes and crimes against humanity, as set forth
in counts two and three of this indictment, in that the defendants
unlawfully, willfully, and knowingly encouraged, aided, abetted, and
participated in the commission of atrocities and offenses against
persons and property, including plunder of private property, murder,
extermination, enslavement, deportation, unlawful imprisonment,
torture, persecutions on political, racial, and religious grounds,
and ill-treatment of, and other inhumane acts against, thousands of
persons, including German civilians, nationals of other countries, and
prisoners of war.
5. It was a part of the said common design, conspiracy, plans, and
enterprises to enact, issue, enforce, and give effect to certain
purported statutes, decrees, and orders, which were criminal both in
inception and execution, and to work with the Gestapo, SS, SD, SIPO,
and RSHA for criminal purposes, in the course of which the defendants,
by distortion and denial of judicial and penal process, committed
the murders, brutalities, cruelties, tortures, atrocities, and other
inhumane acts, more fully described in counts two and three of this
indictment.
6. The said common design, conspiracy, plans, and enterprises embraced
the assumption by the Reich Ministry of Justice of total control of
the administration of justice, including preparation of legislation
concerning all branches of law, and control of the courts and
prisons. The supreme administration of justice in all German states
was transferred to the Reich Ministry of Justice in 1934. Thereupon,
certain extraordinary courts of a predominantly political nature, with
wide and arbitrary criminal jurisdiction, were superimposed upon the
existing ordinary court system. The People’s Court (Volksgerichtshof)
became the court of original and final jurisdiction in cases of “high
treason” and “treason.” This court itself had jurisdiction over the
investigation and prosecution of all cases before it, and there was
no appeal from its decision. The court’s territorial jurisdiction
was extended not only to all annexed countries of the Reich but also
to the “Protectorate” (Bohemia and Moravia) in 1939. Beginning in
1933, Special Courts (Sondergerichte) also were superimposed upon
the ordinary court system under the Reich Ministry of Justice. These
Special Courts were of a character which had been outlawed until the
NSDAP seizure of power. Jurisdiction of these Special Courts extended
to all “political” cases, as well as to all acts deemed inimical to
either the Party, the government, or continued prosecution of the
war. At least one Special Court was attached to every court of appeal
(Oberlandesgericht); public prosecutors could arbitrarily refer thereto
any case from the local courts (Amtsgerichte) or from the criminal
division of the district courts (Landgerichte). Despite guaranties in
the Weimar Constitution and the German Judicature Act, that no one may
be deprived of his competent judge, and prohibitions against irregular
tribunals, these courts were imposed upon Germany, as well as upon the
“Protectorate” and the occupied countries.
7. The said common design, conspiracy, plans, and enterprises
embraced the use of the judicial process as a powerful weapon for the
persecution and extermination of all opponents of the Nazi regime
regardless of nationality and for the persecution and extermination
of “races.” The special political tribunals mentioned above visited
cruel punishment and death upon political opponents and members of
certain “racial” and national groups. The People’s Court was presided
over by a minority of trusted Nazi lawyers, and a majority of equally
trusted laymen appointed by Hitler from the Elite Guard and Party
hierarchy. The People’s Court in collaboration with the Gestapo became
a terror court, notorious for the severity of punishment, secrecy of
proceedings, and denial to the accused of all semblance of judicial
process. Punishment was meted out by Special Courts to victims under
a law which condemned all who offended the “healthy sentiment of the
people.” Independence of the judiciary was destroyed. Judges were
removed from the bench for political and “racial” reasons. Periodic
“letters” were sent by the Ministry of Justice to all Reich judges
and public prosecutors, instructing them as to the results they must
accomplish. Both the bench and bar were continually spied upon by the
Gestapo and SD, and were directed to keep disposition of their cases
politically acceptable. Judges, prosecutors and, in many cases, defense
counsel were reduced in effect to an administrative arm of the Nazi
Party.
COUNT TWO--WAR CRIMES
8. Between September 1939 and April 1945 all of the defendants
herein unlawfully, willfully, and knowingly committed war crimes, as
defined by Control Council Law No. 10, in that they were principals
in, accessories to, ordered, abetted, took a consenting part in, and
were connected with plans and enterprises involving the commission
of atrocities and offenses against persons and property, including,
but not limited to, plunder of private property, murder, torture,
and illegal imprisonment of, and brutalities, atrocities, and other
inhumane acts against thousands of persons. These crimes included,
but were not limited to, the facts set out in paragraphs 9 to 19,
inclusive, of this indictment, and were committed against civilians of
occupied territories and members of the armed forces of nations then
at war with the German Reich and who were in the custody of the German
Reich in the exercise of belligerent control.
9. Extraordinary irregular courts, superimposed upon the regular court
system, were used by all of the defendants for the purpose of and in
fact creating a reign of terror to suppress political opposition to the
Nazi regime. This was accomplished principally through the People’s
Court (Volksgerichtshof) and various Special Courts (Sondergerichte),
which subjected civilians of the occupied countries to criminal
abuse of judicial and penal process including repeated trials on the
same charges, criminal abuse of discretion, unwarranted imposition
of the death penalty, prearrangement of sentences between judges
and prosecutors, discriminatory trial processes, and other criminal
practices, all of which resulted in murders, cruelties, tortures,
atrocities, plunder of private property, and other inhumane acts.
10. Special Courts subjected Jews of all nationalities, Poles,
Ukrainians, Russians, and other nationals of the Occupied Eastern
Territories, indiscriminately classed as “gypsies”, to discriminatory
and special penal laws and trials, and denied them all semblance of
judicial process. These persons who had been arbitrarily designated
“asocial” by conspiracy and agreement between the Ministry of Justice
and the SS were turned over by the Ministry of Justice, both during
and after service of prison sentences, to the SS to be worked to
death. Many such persons were given a summary travesty of trial before
extraordinary courts, and after serving the sentences imposed upon
them, were turned over to the Gestapo for “protective custody” in
concentration camps. Jews discharged from prison were turned over
to the Gestapo for final detention in Auschwitz, Lublin, and other
concentration camps. The above-described proceedings resulted in the
murder, torture, and ill-treatment of thousands of such persons. The
defendants von Ammon, Engert, Klemm, Schlegelberger, Mettgenberg,
Rothenberger, and Westphal are charged with special responsibility for
and participation in these crimes.
11. The German criminal laws, through a series of expansions and
perversions by the Ministry of Justice, finally embraced passive
defeatism, petty misdemeanors and trivial private utterances as
treasonable for the purpose of exterminating Jews or other nationals
of the occupied countries. Indictments, trials and convictions were
transparent devices for a system of murderous extermination, and
death became the routine penalty. Jurisdiction of the German criminal
code was extended to the entire world, to cover acts of non-Germans
as well as Germans living outside the Reich. Non-German nationals
were convicted of and executed for “high treason” allegedly committed
against the Reich. The above-described proceedings resulted in
the murder, torture, unlawful imprisonment, and ill-treatment of
thousands of persons. The defendants Barnickel, Cuhorst, Klemm, Lautz,
Mettgenberg, Nebelung, Oeschey, Petersen, Rothaug, Rothenberger,
Schlegelberger, and Westphal are charged with special responsibility
for and participation in these crimes.
12. The Justice Ministry aided and implemented the unlawful annexation
and occupation of Czechoslovakia, Poland, and France. Special
Courts were created to facilitate the extermination of Poles and
Jews and the suppression of political opposition generally by the
employment of summary procedures and the enforcement of Draconic
penal laws. Sentences were limited to death or transfer to the SS for
extermination. The People’s Court and Special Courts were projected
into these countries, irregular prejudicial regulations and procedures
were invoked without notice (even in violation of the Reich Criminal
Code as unlawfully extended to other occupied territories), sentences
were prearranged, and trial and execution followed service of the
indictment within a few hours. The above-described proceedings resulted
in the murder, ill-treatment, and unlawful imprisonment of thousands of
persons. The defendants Klemm, Lautz, Mettgenberg, Schlegelberger, and
Westphal are charged with special responsibility for and participation
in these crimes.
13. The Ministry of Justice participated with the OKW and the Gestapo
in the execution of Hitler’s decree of “Night and Fog” (Nacht und
Nebel) whereby civilians of occupied territories who had been accused
of crimes of resistance against occupying forces were spirited away
for secret trial by certain Special Courts of the Justice Ministry
within the Reich, in the course of which the victims’ whereabouts,
trial, and subsequent disposition were kept completely secret, thus
serving the dual purpose of terrorizing the victims’ relatives and
associates and barring recourse to any evidence, witnesses, or counsel
for defense. The accused was not informed of the disposition of his
case, and in almost every instance those who were acquitted or who had
served their sentences were handed over by the Justice Ministry to
the Gestapo for “protective custody” for the duration of the war. In
the course of the above-described proceedings, thousands of persons
were murdered, tortured, ill-treated, and illegally imprisoned. The
defendants Altstoetter, von Ammon, Engert, Joel, Klemm, Mettgenberg,
and Schlegelberger are charged with special responsibility for and
participation in these crimes.
14. Hundreds of non-German nationals imprisoned in penal institutions
operated by the Reich Ministry of Justice were unlawfully executed
and murdered. Death sentences were executed in the absence of the
necessary official orders, and while clemency pleas were pending. Many
who were not sentenced to death were executed. In the face of Allied
military advances so-called “inferior” or “asocial” prison inmates
were, by Ministry order, executed regardless of sentences under which
they served. In many instances these penal institutions were operated
in a manner indistinguishable from concentration camps. The defendants
Engert, Joel, Klemm, Lautz, Mettgenberg, Rothenberger, and Westphal
are charged with special responsibility for and participation in these
crimes.
15. The Ministry of Justice participated in the Nazi program of
racial purity pursuant to which sterilization and castration laws
were perverted for the extermination of Jews, “asocials”, and
certain nationals of the occupied territories. In the course of the
program thousands of Jews were sterilized. Insane, aged, and sick
nationals of occupied territories, the so-called “useless eaters,”
were systematically murdered. In the course of the above-described
proceedings thousands of persons were murdered and ill-treated. The
defendants Lautz, Schlegelberger, and Westphal are charged with special
responsibility for and participation in these crimes.
16. The Ministry of Justice granted immunity to and amnesty following
prosecutions and convictions of Nazi Party members for major crimes
committed against civilians of occupied territories. Pardons were
granted to members of the Party who had been sentenced for proved
offenses. On the other hand, discriminatory measures against Jews,
Poles, “gypsies,” and other designated “asocials” resulted in harsh
penal measures and death sentences, deprivation of rights to file
private suits and rights of appeal, denial of right to receive amnesty
and to file clemency pleas, denial of right of counsel, imposition of
special criminal laws permitting the death penalty for all crimes and
misdemeanors, and finally, in the transfer to the Gestapo for “special
treatment” of all cases in which Jews were involved. The defendants von
Ammon, Joel, Klemm, Rothenberger, and Schlegelberger are charged with
special responsibility for and participation in these crimes.
17. By decrees signed by the Reich Minister of Justice and others, the
citizenship of all Jews in Bohemia and Moravia was forfeited upon their
change of residence by deportation or otherwise; and upon their loss
of citizenship their properties were automatically confiscated by the
Reich. There were discriminatory changes in the family and inheritance
laws by which Jewish property was forfeited at death to the Reich
with no compensation to the Jewish heirs. The defendants Altstoetter
and Schlegelberger are charged with special responsibility for and
participation in these crimes.
18. The Ministry of Justice through suspension and quashing of
criminal process, participated in Hitler’s program of inciting the
German civilian population to murder Allied airmen forced down within
the Reich. The defendants Klemm and Lautz are charged with special
responsibility for and participation in these crimes.
19. The said war crimes constitute violations of international
conventions, particularly of Articles 4–7, 23, 43, 45, 46, and 50
of the Hague Regulations, 1907, and of articles 2, 3, and 4 of the
Prisoner of War Convention (Geneva, 1929), the laws and customs of
war, the general principles of criminal law as derived from the
criminal laws of all civilized nations, the internal penal laws of the
countries in which such crimes were committed, and of Article II of
Control Council Law No. 10.
COUNT THREE--CRIMES AGAINST HUMANITY
20. Between September 1939 and April 1945 all of the defendants
herein unlawfully, willfully, and knowingly committed crimes against
humanity as defined by Control Council Law No. 10, in that they were
principals in, accessories to, ordered, abetted, took a consenting
part in, and were connected with plans and enterprises involving the
commission of atrocities and offenses, including but not limited to
murder, extermination, enslavement, deportation, illegal imprisonment,
torture, persecution on political, racial and religious grounds, and
ill-treatment of and other inhumane acts against German civilians and
nationals of occupied countries.
21. Extraordinary irregular courts were used by all of the defendants
in creating a reign of terror to suppress political opposition to the
German Reich, in the course of which German civilians and nationals of
occupied countries were subjected to criminal abuses of judicial and
penal process, resulting in murders, brutalities, cruelties, tortures,
atrocities, plunder of private property, and other inhumane acts. These
crimes are further particularized in paragraph 9 of this indictment,
which is incorporated herein by reference.
22. Special Courts subjected certain German civilians, and nationals
of occupied countries to discriminatory and special penal laws and
trials, and denied them all semblance of judicial process. Convicted
German civilians and nationals of other countries who were deemed to
be political prisoners and criminals designated as “asocial,” were
turned over to the Reich Security Main Office (RSHA) for extermination
in concentration camps. These crimes are further particularized in
paragraph 10 of this indictment, which is incorporated herein by
reference. The defendants von Ammon, Engert, Joel, Klemm, Lautz,
Mettgenberg, and Rothenberger are charged with special responsibility
for and participation in these crimes.
23. The German criminal laws, through a series of additions,
expansions, and perversions by the defendants became a powerful weapon
for the subjugation of the German people and for the extermination of
certain nationals of the occupied countries. This program resulted
in the murder, torture, illegal imprisonment, and ill-treatment of
thousands of Germans and nationals of occupied countries. These crimes
are further particularized in paragraph 11 of this indictment, which is
incorporated herein by reference. The defendants Barnickel, Cuhorst,
Klemm, Lautz, Mettgenberg, Nebelung, Oeschey, Petersen, Rothaug,
Rothenberger, Schlegelberger, and Westphal are charged with special
responsibility for and participation in these crimes.
24. The Ministry of Justice, through the People’s Court and certain
Special Courts, aided and implemented the unlawful annexation and
occupation of Czechoslovakia, Poland, and France. These crimes are
further particularized in paragraph 12 of this indictment, which
is incorporated herein by reference. The defendants Klemm, Lautz,
Mettgenberg, Schlegelberger, and Westphal are charged with special
responsibility for and participation in these crimes.
25. The Ministry of Justice participated in the decree of “Night and
Fog” whereby certain persons who committed offenses against the Reich
or the German forces in occupied territories were taken secretly by
the Gestapo to Germany and handed over to the Special Courts for trial
and punishment. This program resulted in the murder, torture, illegal
imprisonment, and ill-treatment of thousands of persons. These crimes
are further particularized in paragraph 13 of this indictment, which
is incorporated herein by reference. The defendants Altstoetter, von
Ammon, Engert, Joel, Klemm, Mettgenberg, and Schlegelberger are charged
with special responsibility for and participation in these crimes.
26. In penal institutions operated by the Reich Ministry of Justice,
hundreds of German civilians and nationals of other countries were
subjected to murders, brutalities, cruelties, tortures, atrocities, and
other inhumane acts. The particulars concerning these crimes are set
forth in paragraph 14 of this indictment. The defendants Engert, Joel,
Klemm, Lautz, Mettgenberg, Rothenberger, and Westphal are charged with
special responsibility for and participation in these crimes.
27. Special health courts (Erbgesundheitgerichte) perverted eugenic
and sterilization laws or policies regarding German civilians and
nationals of other countries which resulted in the systematic murder
and ill-treatment of thousands of persons. Thousands of German
civilians and nationals of other countries committed to institutions
for the insane, were systematically murdered. These crimes are further
particularized in paragraph 15 of count two of this indictment,
which is incorporated herein by reference. The defendants Lautz,
Schlegelberger, and Westphal are charged with special responsibility
for and participation in these crimes.
28. The Ministry of Justice granted immunity to and amnesty following
prosecutions and convictions of Party members for major crimes
committed against civilians of occupied territories. Pardons were
granted to members of the Party who had been sentenced for proved
offenses. On the other hand, discriminatory judicial proceedings were
imposed against so-called “asocial” German nationals and civilians
of the occupied countries. These crimes are further particularized
in paragraph 16 of count two of this indictment and are incorporated
herein by reference. The defendants von Ammon, Joel, Klemm,
Mettgenberg, Rothenberger, and Schlegelberger are charged with special
responsibility for and participation in these crimes.
29. Discriminatory changes made in the German family and inheritance
laws for the sole purpose of confiscating Jewish properties, were
enforced by the Justice Ministry. All Jewish properties were forfeited
at death to the Reich. Jews and Poles, both in Germany and in the
occupied countries, were deprived of their citizenship, their property
was seized and confiscated, and they were deprived of means of earning
a livelihood, by the State, by Party organizations, and by individual
members of the Party. These crimes are further particularized in
paragraph 17 of this indictment, which is incorporated herein by
reference. The defendants Altstoetter and Schlegelberger are charged
with special responsibility for and participation in these crimes.
30. The Ministry of Justice through suspension and quashing of criminal
process, participated in Hitler’s program of inciting the German
civilian population to murder Allied airmen forced down within the
Reich. This program resulted in the murder, torture, and ill-treatment
of many persons. These crimes are further particularized in paragraph
18 of this indictment, which is incorporated herein by reference. The
defendants Klemm and Lautz are charged with special responsibility for
and participation in these crimes.
31. The said crimes against humanity constitute violations of
international conventions, including article 46 of the Hague
Regulations, 1907, the laws and customs of war, the general principles
of criminal law as derived from the criminal laws of all civilized
nations, the internal penal laws of the countries in which such crimes
were committed, and of article II of Control Council Law No. 10.
COUNT FOUR
MEMBERSHIP IN CRIMINAL ORGANIZATIONS
32. The defendants Altstoetter, Cuhorst, Engert, and Joel are
guilty of membership in an organization declared to be criminal
by the International Military Tribunal in Case 1, in that each of
the said defendants was a member of DIE SCHUTZSTAFFELN DER NATIONAL
SOZIALISTISCHEN DEUTSCHEN ARBEITERPARTEI (commonly known as the “SS”)
after 1 September 1939.
33. The defendants Cuhorst, Oeschey, Nebelung, and Rothaug are guilty
of membership in an organization declared to be criminal by the
International Military Tribunal in Case 1, in that Cuhorst, Oeschey,
and Rothaug were members of the Leadership Corps of the Nazi Party
at Gau level after 1 September 1939, and in that Nebelung was an
Ortsgruppenleiter of the Leadership Corps of the Nazi Party after 1
September 1939.
34. The defendant Joel is guilty of membership in an organization
declared to be criminal by the International Military Tribunal in Case
1, in that the said defendant was a member of DER SICHERHEITSDIENST DES
REICHSFUEHRER SS (commonly known as the “SD”) after 1 September 1939.
Such memberships are in violation of paragraph 1 (d), article II of
Control Council Law No. 10.
Wherefore, this indictment is filed with the Secretary General of the
Military Tribunals and the charges herein made against the above-named
defendants are hereby presented to the Military Tribunals.
Acting on Behalf of the United States of America
TELFORD TAYLOR
Brigadier General, U. S. Army
Chief of Counsel for War Crimes
Nuernberg, 4 January 1947
II. ARRAIGNMENT
Extracts from the official transcript of Military Tribunal
III in the matter of the United States of America vs. Josef
Altstoetter, et al., defendants, sitting at Nuernberg, Germany,
on 17 February 1947, 0930, Justice Carrington T. Marshall,
presiding.[7]
THE MARSHAL: Persons in the courtroom will please find their
seats.
The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of
America and this Honorable Tribunal.
There will be order in the courtroom.
PRESIDING JUDGE MARSHALL: The Tribunal will now proceed
with the arraignment of the defendants in Case 3 pending before this
Tribunal.
The Secretary General will call the names of the defendants.
THE SECRETARY GENERAL: Josef Altstoetter, Wilhelm von Ammon,
Paul Barnickel, Hermann Cuhorst, Karl Engert, Guenther Joel, Herbert
Klemm, Ernst Lautz, Wolfgang Mettgenberg, Guenther Nebelung, Rudolf
Oeschey, Hans Petersen, Oswald Rothaug, Curt Rothenberger, Franz
Schlegelberger.
MR. LAFOLLETTE: May it please your Honor, all the defendants
are present. I wish to advise the members of this Tribunal that
subsequent to the filing of the indictment in this case the defendant
therein named Carl Westphal died, and he died while in the custody of
the Marshal which may be confirmed by the Tribunal.[8]
PRESIDING JUDGE MARSHALL: It will be so entered in the record.
Counsel for the prosecution will proceed with the arraignments of the
defendants.
[Here Mr. LaFollette read the indictment. See pp. 15–26.]
* * * * * * *
PRESIDING JUDGE MARSHALL: The microphone will now be placed in
front of the defendant Josef Altstoetter.
I shall now call upon all defendants to plead guilty or not guilty to
the charges against them. Each defendant, as his name is called, will
stand and speak clearly into the microphone.
At this time there will be no arguments, speeches, or discussions of
any kind. Each defendant will simply plead guilty or not guilty to the
offenses with which he is charged by this indictment.
Josef Altstoetter, are you represented by counsel before this Tribunal?
DEFENDANT ALTSTOETTER: I do not consider myself guilty.
PRESIDING JUDGE MARSHALL: The question is, are you represented
by counsel before this Tribunal?
DEFENDANT ALTSTOETTER: Yes, I am represented by counsel.
PRESIDING JUDGE MARSHALL: How do you plead to the charges and
specifications and each thereof set forth in the indictment against
you, guilty or not guilty?
DEFENDANT ALTSTOETTER: I consider myself not guilty.
PRESIDING JUDGE MARSHALL: You may be seated.
[At this point the other defendants were asked similar questions.
Each defendant indicated that he was represented by counsel, and each
pleaded “Not guilty” to the charges of the indictment against him.]
* * * * * * *
PRESIDING JUDGE MARSHALL: The pleas of the defendants will be
entered by the Secretary General in the records of the Tribunal.
Military Tribunal will be at recess until Wednesday, 5 March 1947, at
9:30 o’clock a.m., at which time the trial of Case 3 will begin.
THE MARSHAL: Military Tribunal III will be at recess until
Wednesday, 5 March 1947, at 9:30 o’clock.
DR. SCHILF: I wish to make a request. I wish to ask the
prosecution, in due time before the opening of the trial, to make their
document books available to the defendants and to their counsel.
We make the following objections against the indictment: Ordinance No.
7, by the Military Government, says, in article IV under paragraph
(_a_), that the indictment is to set forth the counts simply,
distinctly, and in sufficient detail, and that the defendants should be
instructed on the details of the charges made against them.
The defendants, or rather the two clients I represent, failed to find
certain details in the indictment. With the exception of possibly
the charge in regard to the Night and Fog Decree, no legal decree is
referred to which could possibly be considered illegal.
In that manner the preparation by the defendants is frustrated because
the indictment, according to our opinion, is conceived much too
generally, and the requirements of article IV of Ordinance No. 7 just
referred to by me are not fulfilled. This could be remedied in that the
prosecution, in due time, before the opening of the trial, makes the
document books available to the defense counsel.
That is what I should like to ask for on behalf of my two clients.
PRESIDING JUDGE MARSHALL: Does the prosecution desire to make
any comment at this time upon the point raised?
MR. LAFOLLETTE: Unfortunately, and it is no fault of the
defendants’ counsel, I didn’t hear what was coming through the phones.
As I understand two points were raised--the fact that no documents were
filed with defendants’ counsel in their room. Those will be furnished.
Secondly, with reference to the objection raised to the indictment, I
believe the rules require the objections should be reduced to writing.
In any event I think it would serve the purpose if the objection to
the indictment was reduced to writing, and then Your Honors would pick
such time as you see fit to dispose of the motion, and we can argue it
at that time more intelligently than we could at this moment. I do not
desire to take advantage of technicalities, but I hope the record will
note that defense counsel have duly raised the objection, and at such
time as it is to be disposed of it will be reduced to writing before
it is disposed of. I think it only reasonable that it be reduced to
writing.
PRESIDING JUDGE MARSHALL: The defendants’ counsel will be
required to reduce certain matters to writing, as requested by the
prosecution, and it is possible that we will want to dispose of that
matter between now and 5 March if it is agreeable to counsel on both
sides.
DR. KOESSL: I have already submitted the same request in
writing.
MR. LAFOLLETTE: If that has been submitted in writing I think
Your Honors have indicated we may, within a reasonable time after you
have seen it, wish to dispose of that prior to 5 March, or on 5 March,
whichever Your Honors shall see fit. That will be satisfactory to us.
PRESIDING JUDGE MARSHALL: I suggest, in that connection, after
you have seen the written matter that you advise the Tribunal when we
are not in session as to your wishes.
MR. LAFOLLETTE: I shall be glad to do that, Judge. I assume we
will wait and take not only the objections on behalf of the defendant
Rothaug, but also any objections which have been filed by counsel on
behalf of any other defendants. After they have been submitted and
I have had an opportunity to see them, I will confer with defense
counsel, and perhaps after that we will have time to confer with the
Court as to the time of disposition.
PRESIDING JUDGE MARSHALL: Are there any other counsel
representing defendants who desire to present any matters at this time?
If not, the order for recess will stand.
(The Tribunal adjourned until 0930 hours, 5 March 1947.)
III. OPENING STATEMENTS
A. Opening Statement for the Prosecution[9]
BRIGADIER GENERAL TAYLOR: This case is unusual in that the
defendants are charged with crimes committed in the name of the law.
These men, together with their deceased or fugitive colleagues, were
the embodiment of what passed for justice in the Third Reich.
Most of the defendants have served, at various times, as judges, as
state prosecutors, and as officials of the Reich Ministry of Justice.
All but one are professional jurists; they are well accustomed to
courts and courtrooms, though their present role may be new to them.
But a court is far more than a courtroom; it is a process and a spirit.
It is the house of law. This the defendants know, or must have known
in times past. I doubt that they ever forgot it. Indeed, the root of
the accusation here is that those men, leaders of the German judicial
system, consciously and deliberately suppressed the law, engaged
in an unholy masquerade of brutish tyranny disguised as justice,
and converted the German judicial system to an engine of despotism,
conquest, pillage, and slaughter.
The methods by which these crimes were committed may be novel in
some respects, but the crimes themselves are not. They are as old as
mankind, and their names are murder, torture, plunder, and others
equally familiar. The victims of these crimes are countless, and
include nationals of practically every country in Europe.
But because these crimes were committed in the guise of legal process,
it is important at the outset to set forth certain things that are not,
here and now, charged as crimes.
The defendants and their colleagues distorted, perverted, and finally
accomplished the complete overthrow of justice and law in Germany.
They made the system of courts an integral part of dictatorship.
They established and operated special tribunals obedient only to the
political dictates of the Hitler regime. They abolished all semblance
of judicial independence. They brow-beat, bullied, and denied
fundamental rights to those who came before the courts. The “trials”
they conducted became horrible farces, with vestigial remnants of legal
procedure which only served to mock the hapless victims.
This conduct was dishonor to their profession. Many of these misdeeds
may well be crimes. But, in and of themselves, they are not charged as
crimes in this indictment. The evidence which proves this course of
conduct will, indeed, be laid before the Court, as it constitutes an
important part of the proof of the crimes which are charged. But the
defendants are not now called to account for violating constitutional
guaranties or withholding due process of law.
On the contrary, the defendants are accused of participation in and
responsibility for the killings, tortures, and other atrocities which
resulted from, and which the defendants know were an inevitable
consequence of, the conduct of their offices as judges, prosecutors,
and ministry officials. These men share with all the leaders of the
Third Reich--diplomats, generals, party officials, industrialists, and
others--responsibility for the holocaust of death and misery which
the Third Reich visited on the world and on Germany herself. In this
responsibility, the share of the German men of law is not the least.
They can no more escape that responsibility by virtue of their judicial
robes than the general by his uniform.
One other word of clarification. Some of the evidence in this case will
relate to acts which occurred before the outbreak of war in 1939. These
acts will be proved in order to show that the defendants were part of a
conspiracy and plan to commit the crimes charged to have been committed
after the outbreak of war, and to show that the defendants fully
understood and intended the criminal consequences of their acts during
the war. But none of these acts is charged as an independent offense in
this particular indictment.
The charges in the indictment have been so limited for purposes of
clarity and simplicity. There is no need to test in this case delicate
questions concerning the criminality per se of judicial misconduct
since the accusation and the evidence cut much deeper. The defendants
are charged with using their offices and exercising their powers with
the knowledge and intent that their official acts would result in the
killing, torture, and imprisonment of thousands of persons in violation
of international law as declared in Control Council Law No. 10. Nor is
there any need to inquire here into what acts committed before the war
are cognizable as crimes against humanity under Law No. 10, since the
bulk of the proof relates to acts which occurred during the war.
In summary, the defendants are charged with judicial murder and other
atrocities which they committed by destroying law and justice in
Germany, and by then utilizing the emptied forms of legal process for
persecution, enslavement, and extermination on a vast scale. It is the
purpose of this proceeding to hear these charges and to render judgment
according to the evidence under law.
The true purposes of this proceeding, therefore, are broader than the
mere visiting of retribution on a few men for the death and suffering
of many thousands. I have said that the defendants know, or should
know, that a court is the house of law. But it is, I fear, many years
since any of the defendants have dwelt therein. Great as was their
crime against those who died or suffered at their hands, their crime
against Germany was even more shameful. They defiled the German temple
of justice, and delivered Germany into the dictatorship of the Third
Reich, “with all its methods of terror, and its cynical and open denial
of the rule of law.”[10]
The temple must be reconsecrated. This cannot be done in the twinkling
of an eye or by any mere ritual. It cannot be done in any single
proceeding or at any one place. It certainly cannot be done at
Nuernberg alone. But we have here, I think, a special opportunity and
grave responsibility to help achieve this goal. We have here the men
who played a leading part in the destruction of law in Germany. They
are about to be judged in accordance with the law. It is more than
fitting that these men be judged under that which they, as jurists,
denied to others. Judgment under law is the only just fate for the
defendants; the prosecution asks no other.
THE GERMAN JUDICIAL SYSTEM
There are fifteen defendants in the box, all of whom held high judicial
office, and all but one of whom are trained lawyers. To understand this
case, it is necessary to understand the general structure of the German
judicial system and the places occupied by the several defendants
within that system.
To assist the Court in this regard, the prosecution has prepared a
short expository brief which is already in the hands of the Court and
which has been made available to defense counsel in German and English.
The brief includes a glossary of the more frequent German words or
expressions which will occur during the trial--most of them from the
vocabulary of governmental and judicial affairs. It includes a table of
equivalent ranks between the American Army and the German Army and SS,
and a table of the civilian ranks used in the German judicial system.
It also includes two charts, showing respectively the structure of the
Reich Ministry of Justice, and the hierarchy of German courts.[11]
Finally, it includes a copy of the composite chart now displayed
on the wall of the courtroom, which shows the positions occupied by
the defendants in the general scheme of things. This chart has been
certified by the defendant Schlegelberger, and will be introduced as an
exhibit in this case when Mr. LaFollette commences the presentation of
evidence. It is being displayed at this time as a convenient guide to
the Court and to defense counsel, to enable them more easily to follow
the opening statement.
JUDICIAL ORGANIZATION PRIOR TO 1933
Because Germany was divided into a multitude of states and provinces
until modern times, German law is not the product of a continuous or
uniform development. However, while some elements of old Germanic law
have survived, German law has for many centuries been based primarily
on the principles of Roman law. As is the case in most continental
nations, German law today is enacted to a substantial degree in the
form of codes.
Even at the present time, the principal source of German criminal
law is the Criminal Code of 1871. Amendments have been frequent, but
it has never been completely overhauled. For our present purpose,
it is sufficient to note the code’s threefold division of criminal
offenses. Serious crimes, punishable with death or imprisonment for
more than 5 years, are called “crimes” (Verbrechen); lesser offenses,
punishable with imprisonment or substantial fines, are called
“delicts” (Vergehen); and minor offenses are called “contraventions”
(Uebertretungen).
Questions of criminal procedure are regulated by the Code of Criminal
Procedure of February, 1877; matters of jurisdiction and of court
organization are prescribed in the General Judicature Act of January,
1877.
Under both the German Empire and the Weimar Republic, the authority to
appoint judges and prosecutors and the power to execute sentences were
jealously guarded prerogatives of the individual German states. The
Reich Ministry of Justice, therefore, remained predominantly a ministry
of federal legislation. The anomaly of a highly unified federal law, as
contrasted with a court system administered by the individual states,
endured until after the advent of Hitler.
In spite of the fact that the authority for supervision and appointment
of judges rested with the numerous states, the German court system
was well organized and highly unified before Hitler came to power.
The basis of the court system was the local courts (Amtsgerichte), of
which there were over 2,000, which had original jurisdiction over minor
civil suits and over the less serious criminal offenses (“delicts” and
“contraventions”). Original jurisdiction in the more important civil
and criminal cases was exercised by the district courts (Landgerichte),
of which there were some 180.
The principal appellate courts in Germany were called the district
courts of appeal (Oberlandesgerichte). Of those there were 26, or
generally one to each state and province.[12] The district courts of
appeal entertained civil appeals from all decisions of the local and
district courts, and second criminal appeals from cases originally
heard in the local courts. The president of the district court of
appeals (Oberlandesgerichtspraesident) was also the administrative head
of all the courts in his district.
The Supreme Court of the Reich (Reichsgericht) in Leipzig formed the
apex of the judicial pyramid. It determined important legal questions
involving the interpretation of Reich laws, and entertained appeals
from the decisions of the district courts of appeal and from criminal
cases originally heard in the district courts. It was also the court of
first and last instance for important treason cases.
The judges of the Reich Supreme Court were appointed by the President
of the Reich. The judges of the lower courts were appointed by the
respective state governments. Before the advent of national socialism,
a judge could not be removed by the government, but only by formal
action before a disciplinary court composed of his peers. This security
of tenure was guaranteed by articles 102 and 104 of the Weimar
constitution.
JUDICIAL ORGANIZATION OF THE THIRD REICH
The impact of Hitler’s seizure of power on the German judicial system
was swift and drastic. The Enabling Law of 24 March 1933 authorized
the executive to issue decrees with the force of law and provided that
these “decree laws” could deviate from the Weimar constitution, the
civil rights provision of which had already been suspended by a decree
of 28 February 1933. For practical purposes, therefore, legislative and
executive powers were merged in Hitler’s cabinet, and the constitution
was robbed of all practical effect.
In 1934, the administration of justice was taken entirely out of
the hands of the German states and was concentrated exclusively in
the government of the Reich. The first law for the transfer of the
administration of justice to the Reich was proclaimed 16 February 1934;
it provided that thereafter all courts should pronounce judgment in
the name of the German people, vested in the President of the Reich
all clemency powers formerly held by the states, and authorized the
Reich Minister of Justice to issue regulations for the transfer of the
administration of justice to the Reich. This general directive was put
into execution by the second and third laws for the transfer of the
administration of justice to the Reich, promulgated in December 1934
and January 1935, respectively. The Justice Ministries of the several
states were thereby abolished, and all their functions and powers were
concentrated in the Reich Ministry of Justice, which became the supreme
judicial authority, under Hitler, in the Reich. Hitler had already
proclaimed himself the “Supreme Law Lord of the German people” in his
speech to the Reichstag defending the killings which occurred during
the suppression of the Roehm putsch.[13]
1. _The Reich Ministry of Justice_ (_Reichsjustizministerium_)--The
centralization of the German administration of justice brought about,
of course, a great increase in the scope and functions of the Reich
Ministry of Justice. Its more important divisions are shown in the
composite chart on the wall of the courtroom; a more detailed chart of
the Ministry alone is included in the expository brief.
For the first 8 years of the Hitler regime, the Minister of Justice was
Franz Guertner, who had taken this office under the von Papen cabinet
and retained it until his death in January 1941. Under Guertner, the
two principal officials were the defendant Schlegelberger and Roland
Freisler, each with the title of under secretary. Schlegelberger
took charge of the Ministry from Guertner’s death until August 1942,
but throughout that period he was “Acting Minister” and was never
officially given cabinet rank. In August 1942, Dr. Georg Thierack,
then president of the People’s Court, was appointed Reich Minister and
Schlegelberger was retired. Freisler succeeded Thierack as president of
the People’s Court.
Under Thierack, there was only one under secretary. Thierack first
appointed the defendant Rothenberger, but in January 1944 Rothenberger
was put on the retired list and replaced by the defendant Klemm.
Besides the defendants Schlegelberger, Rothenberger, and Klemm, four
of the other defendants held high office in the Ministry of Justice,
and still others served in the Ministry at various times during their
careers. The defendant Klemm, as well as being the under secretary,
headed Division II of the Ministry, which concerned itself with legal
education and training. The defendants von Ammon and Mettgenberg, as
well as the deceased Westphal, were officials of Divisions III and
IV, which were ultimately merged, and which governed virtually all
questions of criminal legislation and procedure, and prosecutions.
The defendant Altstoetter headed Division VI, which dealt with civil
law and procedure. The defendant Engert, after having served on the
People’s Court, became the head of Division V, Penal Institutions, and
of Division XV, first created in 1942 and dissolved in 1944. Division
XV concerned itself with the secret transfer of certain classes of
persons from ordinary prisons to the Gestapo. The Ministry of Justice
controlled a variety of other judicial institutions, including various
Special Courts and the examining office for candidates for admission
and qualification of judges and lawyers. It controlled the Academy for
German Law and various other associations of attorneys, as well as a
special training camp for the Nazi indoctrination of young attorneys.
Most important of all, it supervised and administered the entire court
system from the Reich Supreme Court clear down to the local courts.
This function included the assignment, transfer, and promotion of all
judges.
2. _The Hierarchy of regular courts_--The centralization of judicial
administration in the Reich Ministry of Justice did not at first have
any pronounced effect upon the structure of the regular court system.
The established hierarchy of courts--local courts, district courts,
district courts of appeal, and the Reich Supreme Court--continued in
effect. The most important development in the early years of the Third
Reich was the creation of extraordinary and special courts, which
increasingly cut into the jurisdiction of the regular courts.
Under the impact of war, however, the system of regular courts was
substantially altered, although its general outlines remained the same.
These alterations were intended for economy and expedition, and to
reduce the number of judicial personnel. This was accomplished chiefly
in two ways: by reduction in the number of judges required to hear
particular kinds of cases, and by drastic curtailment of the right of
appeal.
Many of these changes were made at the outbreak of war in 1939.
Thereafter, all cases in the local courts and all civil cases in the
district courts were heard by one judge only; criminal cases in the
district courts were heard by three judges, but the president of the
court could hear such cases alone if the issues were simple. Criminal
cases heard by the local courts could be appealed only as far as
the district courts; civil cases heard in the local courts could be
appealed directly to the district court of appeals, bypassing the
district court.
Further drastic curtailments of the right of appeal occurred in 1944
and 1945. In general, appeals could only be taken by permission of the
court which heard the case, and permission was granted only to settle
legal questions of fundamental importance. The judicial functions of
the district courts of appeal were almost, if not entirely, eliminated,
although their supervisory administrative functions continued.
3. _Extraordinary courts_--The most crucial and radical change in the
judicial system under the Third Reich, however, was the establishment
of various extraordinary courts. These irregular tribunals permeated
the entire judicial structure, and eventually took over all judicial
business which touched political issues or related to the war.
Within a matter of weeks after the seizure of power, by a decree of 21
March 1933, “Special Courts” (Sondergerichte) were established. One
Special Court was set up within the district of each district court of
appeal. Each court was composed of three judges drawn from the judges
of the particular district. They were given jurisdiction over offenses
described in the emergency decree of 28 February 1933, which included
inciting to disobedience of government orders, crimes in the nature of
sabotage, and acts “contrary to the public welfare.” There were drastic
provisions for the expedition of proceedings before the special courts,
and no appeal whatsoever lay from their decisions.
A few weeks later, special military courts, which had been abolished
by the Weimar constitution, were reestablished and given jurisdiction
over all offenses committed by members of the armed forces. In July
1933, special “Hereditary Health Courts” more generally known as
“Sterilization Courts” were established at the seats of the local
courts, with special appellate “Hereditary Health Courts” above them.
But the most notorious Nazi judicial innovation was the so-called
“People’s Court” (Volksgerichtshof), established by the decree of 24
April 1934, after the Reich Supreme Court’s acquittal of the defendants
in the Reichstag fire trial. The People’s Court replaced the Supreme
Court as the court of first and last instance for most treason cases.
The People’s Court sat in divisions, or “senates,” of five members
each. Two of the five had to be qualified judges; the other three
were trusted Nazi laymen selected from high ranking officers of the
Wehrmacht (armed forces) and SS, or from the Party hierarchy. They
were appointed for 5-year terms by Hitler, on the recommendation of
the Minister of Justice. Six “senates” were established, each of which
heard cases from a particular geographical section of Germany. In
1940 a “special senate” was established to retry cases where, in the
judgment of the chief public prosecutor of the Reich, an inadequate
punishment had been imposed.
As time went on, the concept of “treason” was much enlarged by a
variety of Nazi decrees, and both the Special Courts and the People’s
Court were given jurisdiction to try a great variety of offenses.
In 1936, for example, the smuggling of property out of Germany was
proclaimed an offense against the national economy, and the People’s
Court was given jurisdiction over such cases. In 1940, a new decree
defined the jurisdiction of the Special Courts and People’s Court, and
all sorts of offenses, such as evasion of conscription and listening to
foreign broadcasting stations, were brought within their purview.
Toward the end of the war, by a decree of February 1945, emergency
civil courts martial (Standgerichte) were set up in areas “menaced by
the approaching enemy.” Each consisted of three members appointed by
the Reich Defense Commissar, usually the Gauleiter (regional leader) of
the district; the president was a professional judge, who sat with one
associate judge from the Nazi Party, and one from the Wehrmacht or SS.
These courts martial could only condemn the accused to death, acquit
him, or transfer the case to a regular tribunal.
Thierack was president of the People’s Court prior to his appointment
as Reich Minister of Justice. He was then succeeded by Freisler, the
former under secretary of the Ministry of Justice, who remained as
president until nearly the end of the war, when he was killed in an air
raid. The defendant Engert was vice president of the People’s Court
prior to his transfer to the Ministry of Justice in 1942. The defendant
Nebelung was president of the Fourth Senate of the People’s Court.
The defendant Petersen, the only nonlawyer in the dock, was an SA
Obergruppenfuehrer (lieutenant general) who sat as a lay judge on many
occasions in the First and Special Senates of the People’s Court.
Three of the defendants were judges of the Special Courts. The
defendant Cuhorst was president of the Special Court in Stuttgart, and
the defendant Rothaug was president of the Special Court in Nuernberg.
The defendant Oeschey also sat on the Special Court in Nuernberg and
succeeded Rothaug as its president when the latter became a public
prosecutor. Oeschey was also president of the emergency civil court
martial at Nuernberg.
4. _Public prosecutors_--The prosecution of criminal offenses, under
the Third Reich, was handled by a special group of state attorneys
(Staatsanwaltschaft) directed by the Ministry of Justice. Increasingly
under the Third Reich there was interchange of personnel among judges
and prosecutors.
The defendant Rothaug, for example, left the bench of the Special
Court at Nuernberg to become a senior public prosecutor of the Reich
(Reichsanwalt). The defendant Barnickel also held this title. The
defendant Joel, in 1943, left the Ministry of Justice and became the
public prosecutor of the district court of appeals for Westphalia, at
Hamm.
The most important prosecutor among these defendants, however, was
Ernst Lautz, Chief Public Prosecutor of the Reich (Oberreichsanwalt).
In this capacity, Lautz prosecuted many important cases before the
People’s Court.
COUNT ONE
THE DESTRUCTION OF LAW AND JUSTICE IN GERMANY
I turn now to an examination of the means by which the defendants and
their colleagues seized control of Germany’s judicial machinery and
turned it into a fearsome weapon for the commission of the crimes
charged in the indictment.
The destruction of law in Germany was, of course, part and parcel
of the establishment of the Third Reich dictatorship. Initially,
the dictatorship arose out of the decrees in the early part of 1933
which suspended the constitutional guaranties of freedom and vested
Hitler’s cabinet with legislative power, unrestrained by constitutional
limitations. These early decrees put an end to law as we know it in a
democracy.
But much more had to be accomplished in order to achieve a dictatorship
of the proportions envisaged by the authors of the Third Reich. Freedom
of the ballot had to be suppressed so that a false veneer of electoral
approval could be spread over the Nazi edifice. The civil service had
to be purged of dissident officials. An ubiquitous and ruthless police
system had to be created. A multitude of other measures were necessary.
But, above all, law and justice had to be utterly stamped out.
At first blush, the reason for this may not appear. The Nazi cabinet
could decree any law it wanted to with the flourish of a pen. The
courts, unless they were bold enough to deny the very basis of Hitler’s
authority, which they did not do, were bound to punish violations of
these laws. Was this not enough for even Hitler’s purposes?
The answer is twofold. Particularly in the early years of the Third
Reich, Hitler’s government pursued aims and employed methods which
it did not, at that time, see fit to authorize by formal, public
legislation. The regime was not yet strong enough, externally or
internally, to face the storm of disapproval which such legislation
would have encountered. The Nazi government thought it wise to pursue
these aims and employ these methods outside of, and often in violation
of, the letter and spirit of the law. And it did not wish to be
embarrassed or obstructed by an independent judiciary respectful only
to the law. The outcome of the Reichstag fire trial, for example, was
highly embarrassing and promptly bore sinister fruit in the creation of
the People’s Court.
But there was another and much more fundamental reason. The ideology of
the Third Reich was totally incompatible with the spirit of the law. It
could not live under law, and the law could not live under it. To take
but one example: even under stringent anti-Jewish legislation, there
were bound to be situations where an overgreedy German in a civil suit
or an overzealous police official in a criminal case had erroneously
haled a Jew into court. In other words, even under Nazi legislation,
there were bound to be cases when the Jew was legally right. Yet, it
was unthinkable that a German court should exalt the Jew and discredit
the German with a decision in favor of the Jew. Such perplexing
problems could be dealt with only by courts which were not true courts
at all, and which could be trusted to suppress the law and to render an
ideological judgment or, as was done later, to declare the Jew to be an
animal beyond the judicial pale entirely, who could not, any more than
a wrongfully beaten dog, ask judicial intervention or protection.
This sort of problem was far more delicate in the case of the Poles,
whom the Nazis chose to regard as less than human but more than Jewish.
Later on in this case, we will, I think, derive some macabre humor
from the documentary spectacle which some of these defendants made
of themselves in vainly wrestling with the insoluble problem of how
to achieve a certain amount of legal order and stability in occupied
Poland, without at the same time giving the Poles any true law on which
they could rely.
In short, the very idea of “law” was inimical to the ideology of the
Third Reich, and it is not surprising that its principal authors
recognized this fact at a very early date. In 1930, Hitler himself
declared with reference to a court decision against certain Nazis--
“We can assure the judges that, if national socialism assumes
power, they will be fired without any pension.”[14]
Joseph Goebbels expressed the same thought even more bluntly in 1934
after the Nazis were in power--
“We were not legal in order to be legal, but in order to rise to
power. We rose to power legally in order to gain the possibility
of acting illegally.”[15]
Later on in this case, the Tribunal will have offered to it documents
which speak at length about the creation of a new, National Socialist
system of law. By then, it will be apparent, I believe, that a
“National Socialist system of law” is a preposterous contradiction
in terms. It never was an objective of the Third Reich to create any
system of law. On the contrary, it was its fundamental purpose to
tear down every vestige of law in Germany, and to replace it with
a mere bureaucracy which would mete out reward and punishment in
accordance with the tyrannical ideology and tactical necessities of the
dictatorship. The one-time sage of Nazi jurisprudence, the late Dr.
Hans Frank, summed this up aptly in 1935 (_NG-777, Pros. Ex. 19_)--
“National socialism is the point of departure, the content, and
the goal of the legal policies of the Third Reich.”[16]
And the defendant Schlegelberger expressed the same thought in 1936
(_NG-538, Pros. Ex. 21_)--
“Accordingly there can be no doubt that now the moral order and
ideology [Weltanschauung], as recognized in the Party program,
has to be taken into consideration in the interpretation and
application of every norm of the existing law.”[17]
We may now retrace some of the steps which the law lords of the
Third Reich took to turn the judicial system into a subservient but
effective agent of the regime. Some of these we have already noted.
The centralization of the administration of justice in the Reich
government, the vesting of over-all authority in the Reich Ministry
of Justice, and the creation of extraordinary courts were essential
steps in the process. Standing alone, these acts might have been
unobjectionable, though the creation of special courts was expressly
prohibited by article 105 of the Weimar constitution. But these first
moves were but the prelude to a series of deadly thrusts at the vitals
of the judicial system. The early history of this organized attack
on the fundamentals of law is summarized in the decision of the
International Military Tribunal--
“Similarly, the judiciary was subjected to control. Judges were
removed from the bench for political or racial reasons. They
were spied upon and made subject to the strongest pressure
to join the Nazi Party as an alternative to being dismissed.
When the Supreme Court acquitted three of the four defendants
charged with complicity in the Reichstag fire, its jurisdiction
in cases of treason was thereafter taken over and given to a
newly established ‘People’s Court’ consisting of two judges
and five officials of the Party. Special Courts were set up to
try political crimes and only Party members were appointed as
judges. Persons were arrested by the SS for political reasons,
and detained in prisons and concentration camps; and the judges
were without power to intervene in any way. Pardons were granted
to members of the Party who had been sentenced by the judges for
proved offenses. In 1935, several officials of the Hohenstein
concentration camp were convicted of inflicting brutal treatment
upon the inmates. High Nazi officials tried to influence the
court, and after the officials had been convicted, Hitler
pardoned them all. In 1942, ‘judges’ letters’ were sent out to
all German judges by the government, instructing them as to the
‘general lines’ that they must follow.”[18]
The destruction of the judicial process continued throughout the era
of the Third Reich. The period from the beginning of the new regime in
1933 until the outbreak of the war was characterized by the rise of
special tribunals, and the steady decrease of procedural guaranties.
After 1939, the war accelerated the conversion of criminal justice
into dictatorial administrative procedure until, at the end of the
war, all resemblance to legal process had vanished. We turn now to an
examination of the particular steps in the process.
a. 1933–1939
Immediately after the seizure of power, the Nazis struck hard at the
independence and integrity of the judiciary by dismissing or demoting
politically unreliable judges and officials of the Ministry of Justice.
The temporary decree of 7 April 1933, under which this was done,
provided that--
“Officials, whose former political activity does not offer a
guarantee that they, at all times without reservation, act
in the interest of the national state, can be dismissed from
service. For a period of 3 months after dismissal, they are
accorded their former salary. From this time on, they receive
three-fourths of their pension and corresponding survivor’s
benefits.”[19]
In 1937 similar language was embodied in permanent legislation in the
Civil Service Act.[20] The result of these measures was the elimination
of all Jews and part-Jews, Social Democrats, and other opponents of
the Nazi regime, from the bench and from the staff of the Ministry of
Justice.
Substantive criminal law during this period was radically affected by
the introduction of the authoritarian ideology of the Third Reich,
and the concept of the criminal as the enemy of the nation. The prime
purpose of the new criminal provisions was to make the new holders of
power secure against all competition or attack. The decree for the
protection of the German people[21] initiated a never-ending stream of
legislation intended to protect the persons, institutions, and symbols
of the Third Reich against all attacks of political enemies. The field
for the application of treason and high treason was vastly enlarged by
investing the most preparatory and auxiliary acts with the character
of treason. The range of application of the death penalty, in the past
restricted to murder and some cases of homicide, was greatly widened.
Hand in hand with the sharpening of penalties and the extension of the
scope of punishable atrocities went the attempt to widen the scope of
German criminal jurisdiction beyond its territorial limits. The new
“race defilement” prohibitions for example were made applicable to
offenses committed abroad.[22]
Examples of such draconic and tyrannical decrees are legion. The decree
of 24 April 1934 provided that the death penalty, or hard labor for
life, or hard labor for 2 years or more, should be inflicted--
“1. If the act aimed at establishing or maintaining an organized
combination for the preparation of high treason; or
“2. If the act was directed toward making the armed forces or
police unfit for the execution of their duty to protect the
stability of the German Reich from internal or external attacks;
or
“3. If the act was directed toward influencing the masses by
making or distributing writings, recordings, and pictures, or by
the installation of wireless, telegraph, or telephone; or
“4. If the act was committed abroad or was committed in such
a manner that the perpetrator undertook to import writings,
recordings, or pictures from abroad for the purpose of
distribution within the country.”
By August 1938, this tendency had progressed to a point where the
following acts were all made punishable by death:
“1. Whoever openly solicits or incites others to evade the
fulfillment of compulsory military service in the German or an
allied armed force, or otherwise openly seeks to paralyze or
undermine the will of the German people or an allied nation to
self-assertion by bearing arms;
“2. Whoever undertakes to induce a soldier or conscriptee in
the reserves to disobedience, opposition, or violence against
a superior, or to desertion or illegal absence or otherwise to
undermine the discipline of the German or an allied military
force; and
“3. Whoever undertakes to cause himself or another to avoid
the fulfillment of military service entirely, or to a limited
extent, or temporarily, by means of self-mutilation, or by means
designed to deceive or by other methods.”[23]
But the Nazi jurists were not content to sharpen the letter of the
penal laws; they subverted the spirit and method of interpretation of
the criminal law in order to enable the courts to impose punishment,
outside the law, in accordance with the political ideology of the
regime. Thus, in June 1935, article 2 of the penal code was amended to
read as follows:
“Whoever commits an act which the law declares as punishable
or which deserves punishment according to the fundamental idea
of a penal law or the sound sentiment of the people, shall be
punished. If no specific penal law can be directly applied to
this act, then it shall be punished according to the law whose
underlying spirit can be most readily applied to the act.”[24]
At the same time, the following articles were added to the code of
criminal procedure:
“Article 170a--If an act deserves punishment according to the
sound sentiment of the people, but is not declared punishable
in the code, the prosecution must investigate whether the
underlying principle of a penal law can be applied to the act
and whether justice can be helped to triumph by the proper
application of this penal law.
“Article 267a--If the main proceedings show that the defendant
committed an act which deserves punishment according to the
sound sentiment of the people, but which is not declared
punishable by the law, then the court must investigate whether
the underlying principle of a penal law applies to this act
and whether justice can be helped to triumph by the proper
application of this penal law.”[25]
And, simultaneously, the Reich Supreme Court was ordered to set aside
its prior decisions in order to bring the law into conformance with the
ideology of the Third Reich. The decree is as follows:
“The Reich Supreme Court, as the highest German tribunal,
must consider it its duty to effect an interpretation of the
law which takes into account the change of ideology and of
legal concepts which the new State has brought about. In order
to be able to accomplish this task without having to show
consideration for the decisions of the past brought about by
other ideology and other legal concepts, it is ruled as follows:
“When a decision is made about a legal question, the Reich
Supreme Court can deviate from a decision laid down before this
law went into effect.”
This tyrannical doctrine of “punishment by analogy” was given a sugar
coating by Dr. Hans Frank (_NG-777, Pros. Ex. 19_):
“In the future, criminal behavior, even if it does not fall
under formal penal precepts, will receive the deserved
punishment if such behavior is considered punishable according
to the sound sentiment of the people.”[26]
But once again, Josef Goebbels was shameless enough to state the
doctrine with complete frankness (_NG-417, Pros. Ex. 23_):
“While making his decisions the judge is to proceed less from
the law than from the basic idea that the offender is to be
eliminated from the community. During a war it is not so much
a matter of whether a judgment is just or unjust, but only the
decision is expedient. The State must protect itself in the most
efficient way and wipe them out entirely * * *. One must not
proceed from the law, but from the resolution that the man must
be wiped out.”[27]
On the administrative side, the prewar years were characterized by ever
closer collaboration between Himmler’s Gestapo and the Reich Ministry
of Justice. In February 1937, Himmler directed that all Gestapo matters
be made available to the district public prosecutors. The next month,
the Reich Minister of Justice (Guertner) addressed a letter to all the
district public prosecutors, calling attention to Himmler’s directive
and stating (_NG-323, Pros. Ex. 32_):
“In order to have this decree fulfill its purpose and in the
interest of the closest possible collaboration between the
office of the public prosecutor and the authorities of the
Gestapo, I hereby issue this supplementary order that in
future, public prosecutors routinely address all requests for
investigations to be conducted on the basis of reports of
political nature received by them directly, to the local and
district police authorities _via the competent state police
offices_. When in cases based on such reports, the necessary
interrogations of the accused or the witnesses are procured by
the court itself or by the expert of the prosecution, and the
police authorities are not at all involved in the proceedings,
I request that the state police offices be informed of the
proceedings as soon as possible.”[28]
The German jurists, who collaborated so closely with Himmler’s minions,
were equally willing to protect “overzealous Nazis” against the
penal consequences of their worst excesses. Late in 1933 a group of
“Storm Troopers” (SA) committed vicious assaults and tortures on some
political prisoners who had been confined in the concentration camp of
Kemna, near Wuppertal in the Ruhr. The description of this outrage by
the Reich Minister of Justice reads as follows:
“In the camp, some of the prisoners were exposed to the severest
mishandling.
“In most cases, shortly after their shipment had come in, and
when they were being interrogated, they would be beaten, partly
upon their bare bodies, with rubber cudgels, horsewhips, sticks,
ox lashes, and other objects. In many cases they had to lie
down over a special caning bench, or were forced down onto it
by guards, and their mouths were kept shut or they were gagged
with balls of paper, pieces of cloth, bags, or similar things,
in order to prevent them from screaming. Other members of the
guard in the meantime would begin to beat them up. Prisoners who
fainted were kicked back to consciousness or had water thrown
over them to wake them up and make them stand up again. After
this, prisoners who were mistreated were frequently locked up in
a small space under the stairway or in an elevator without being
given any medical attention or food and drink. In some cases,
the injuries the prisoners received from their beatings made it
necessary to transfer them to hospitals.
“Several prisoners also were forced to eat unwashed herrings
from the barrel, which had also been sprinkled with salt * * *.
When they had finished the herrings, the prisoners, who were
naturally suffering from tormenting thirst, were not allowed to
have water brought them.”
Proceedings against the storm troop leaders in a disciplinary tribunal
of the Nazi Party ended in a mere reprimand and deprivation of the
right to hold public office for 1 year. The files of the Ministry of
Justice concerning this atrocious episode contain the recommendations
of various officials, including the defendant Joel, that criminal
proceedings against the perpetrators should be cancelled. This
recommendation was adopted and forwarded to Hitler by Minister
Guertner, who, for justification, pointed to the circumstances that
the culprits were not experienced concentration camp guards, that the
majority of the victims were Communists, that, in some cases, the
victims had been obstinate and insubordinate, and that communism had an
especially strong hold in the Wuppertal area.
b. 1939–1945
Before the outbreak of war, the main objective of Nazi penal
innovations was to suppress internal opposition to the new regime, and
to render life intolerable for the Jews. During the early years of
the war, the Nazi jurists were largely concerned with legal problems
incident to the occupation of Poland, France, and the other nations
overrun by the Wehrmacht. The extension of German law to the occupied
areas, and the outrages committed thereunder, constituted war crimes
and crimes against humanity on a grand scale, which will be described
in due course. German criminal law was also applied extensively to acts
committed outside the Reich, even when committed by foreigners.[29]
Acts committed by a foreigner outside the Reich could even constitute
treason against the Reich.
But the war also brought a mass of new criminal legislation within
Germany. This new legislation was influenced by the necessities of war,
but also contained matured concepts of National Socialist criminal
policy. The principal aim was to guarantee the security of the Nazi
regime, and bolster the economic and military strength of Germany,
through extremely harsh criminal punishments. The chief weapon was the
unsparing and almost indiscriminate use of capital punishment.
Later on, as Germany’s military situation worsened, the death penalty
became an ordinary sentence for a great variety of offenses. The
increased severity of air raids resulted in capital punishment or
long prison sentences for crimes committed during black-outs, even
very minor looting. Economic hardship and shortages of materials were
accompanied by laws prescribing penal servitude, or even death, for
anyone who destroyed or removed food or other supplies. Toward the
end of the war, a desperate attempt was made to cope with the growing
defeatism by imposing the death penalty for spreading rumors, listening
to foreign broadcasts and even for the most minor derogatory remarks
about the Hitler regime or pessimism concerning Germany’s chances of
military success.
The war brought new and extraordinary procedures, as well as new
crimes. Despite all that had been done in prewar years, the courts were
still handing down some sentences which, in the eyes of Berlin, were
too mild, and once such a final judgment had been given, nothing could
be done about it. The whole idea of the finality of judgments had long
been a thorn in the flesh of the Nazi jurists. Accordingly, 2 weeks
after the outbreak of war, a decree[30] was promulgated which provided
that, if the Chief Reich Prosecutor had “serious misgivings” concerning
the justice of a sentence, he could, within 1 year thereafter, file
an extraordinary appeal and secure a second trial of the case. The
officials of the Reich Ministry of Justice, who controlled the public
prosecutors, reviewed the criminal decisions and directed the chief
prosecutor to file appeals in cases where they deemed the punishment
insufficient. If the first decision had been rendered by the regular
courts, the second trial was held by the Special Penal Senate of
the Reich Supreme Court. If the first decision had been made by the
People’s Court, on the other hand, the second trial was held by the
Special Senate of the People’s Court.
In 1940, an analogous procedure was authorized[31] under which the
Chief Public Prosecutor of the Reich could lodge with the Supreme Court
a petition for “nullification” against final judgments of the regular
criminal courts or the Special Courts “if the judgment is not justified
because of an erroneous application of law on the established facts.”
The Supreme Court was authorized either to render a new judgment or
to send the case back to a lower court for a new trial under binding
instructions as to the legal principles which should govern. Not
content with this elaborate system for punitive double jeopardy, the
right of the Chief Public Prosecutor to attack final judgments by means
of the nullification procedure was again enlarged in 1942, by extension
to questions of law and to the adequacy of the punishment.[32] This
new regulation provided the prosecution, but not the defense, with
an unlimited right to ask for a new trial within one year after the
decision had been rendered.
On the day of the attack on Poland, a new assault on the tenure and
independence of the judiciary was made.[33] By this new decree, judges
were obliged to take any assignment whatsoever, as judge, prosecutor,
or administrative official, and on any regular or Special Court,
according to the orders of the Reich Minister of Justice. Similar
powers were given to the presidents of the district courts of appeal
within their respective districts.
It might have been thought that, after the purge of Jewish and
politically dissident judges in 1933, the permanent subjection of
the judiciary to dismissal for political reasons in 1937, and their
complete subordination to the Reich Ministry of Justice in 1939, Hitler
would have at last obtained a suitable judiciary for his most extreme
purposes. Apparently, however, pre-Hitler legal training sometimes had
the unfortunate effect that even trusted Nazi judges failed in their
decisions to measure up to the ideology and expectations of the Third
Reich. At all events, something like a crisis in the German judicial
system occurred in 1942.
On 26 April 1942 Hitler made a speech before the Reichstag in which he
reviewed the effects of the hard winter of 1941–1942 and exhorted the
German people to even greater sacrifices in order to achieve victory.
In the course of this speech, Hitler made certain remarks about the
German legal profession and the administration of justice which had
an immediate and pronounced effect. Hitler said (_NG-752, Pros. Ex.
24_):
“I do expect one thing: that the nation gives me the right to
intervene immediately and to take action myself wherever a
person has failed to render unqualified obedience and service in
the performance of the greater task which is a matter of to be
or not to be. The front and the homeland, the transport system,
administration, and justice must obey only one idea, that of
achieving victory. In times like the present, no one can insist
on his established rights, but everyone must know that today
there are only duties.
“I therefore ask the German Reichstag to confirm expressly that
I have the legal right to keep everybody to his duty and to
cashier or remove from office or position, without regard for
his person or his established rights, whoever, in my view and
according to my considered opinion, has failed to do his duty.
* * * * * * *
“Furthermore, I expect the German legal profession to understand
that the nation is not here for them, but that they are here for
the nation; that is, the world, which includes Germany, must
not decline in order that formal law may live, but that Germany
must live, irrespective of the contradictions of formal justice.
To quote one example, I fail to understand why a criminal who
married in 1937, ill-treated his wife until she became insane
and finally died as a result of the last act of ill-treatment,
should be sentenced to 5 years in a penitentiary at a moment
when tens of thousands of honorable German men must die to save
the homeland from annihilation at the hands of bolshevism.
“From now on, I shall intervene in these cases and remove from
office those judges who evidently do not understand the demand
of the hour.”[34]
Immediately after Hitler’s speech, the Reichstag adopted the following
resolutions:
“There can be no doubt in this present state of war, when the
German nation wages its fight for its very existence, that
the Fuehrer must exercise the right, which he claims, to do
everything which serves or helps to achieve victory. Therefore,
the Fuehrer, by his authority as the leader of the nation,
supreme commander of the armed forces, head of the government,
and in supreme possession of all executive power, as supreme
law lord, and as leader of the Party, has to be in a position
to enforce, with all means which he may consider suitable,
every German’s duties, whether he might be a common soldier or
an officer, a subordinate or high civil servant or a judge, a
leading or subordinate functionary of the Party, a worker or an
employee. In case of violations of duties, he has the right to
impose the proper penance, after a conscientious examination
of the case. This can be done without consideration for the
so-called civil service rights. In particular, he may remove
anyone from his office, rank and his position, without resort to
the established procedures.”[35]
This menacing blast from the Fuehrer, and the resolution of the
Reichstag, wiped away the last remains of judicial independence in
Germany. Furthermore, within a few months a complete reorganization of
the upper levels of the Ministry of Justice took place. Schlegelberger,
who had seen the storm coming and made desperate efforts to meet
Hitler’s wishes, was nevertheless retired and replaced by Thierack.
A special Hitler decree in August 1942 gave the new Reich Minister
sweeping powers to bring the administration of justice into conformity
with the needs of the regime; it read:
“A strong administration of justice is necessary for the
fulfillment of the tasks of the Greater German Reich. Therefore,
I commission and empower the Reich Minister of Justice to
establish a National Socialist Administration of Justice, and
to take all necessary measures in accordance with the Reich
Minister and Chief of the Reich Chancellery and the Leader of
the Party Chancellery. He can hereby deviate from any existing
law.”[36]
At the same time, Roland Freisler left the Justice Ministry to become
president of the People’s Court, and the defendant Rothenberger
took Freisler’s old job as under secretary. Earlier in the year,
Rothenberger, previously president of the district court of appeals at
Hamburg, had attracted the Fuehrer’s attention by submitting to him a
long thesis on “judicial reform.” This thesis is a curious document;
it speaks at length of the honor and dignity of the judges’ function
and of the need for justice as the foundation of the Third Reich, but
the reason it won the Fuehrer’s approval can perhaps be more clearly
inferred from the two following quotations (_NG-075, Pros. Ex.
27_):
“The present crisis in the administration of justice today
is close to such a climax. A totally new conception of the
administration of justice must be created, particularly a
National Socialist judiciary, and for this the druggist’s salve
is not sufficient; only the knife of the surgeon, as will later
be shown, can bring about the solution.
“The criterion, however, for the functions of justice, and
particularly of the judge in the National Socialist Reich, must
be a justice which meets the demands of national socialism.
“He who is striding gigantically toward a new world order
cannot move in the limitation of an orderly administration
of justice. To accomplish such a far-reaching revolution in
domestic and foreign policy is only possible if, on the one
hand, all outmoded institutions, concepts, and habits have been
done away with--if need be, in a brutal manner--and if, on the
other hand, institutions that are in themselves necessary but
are not directly instrumental in the achievement of a great goal
and which, in fact, impede it, are temporarily thrust to the
background. All clamor about lawlessness, despotism, injustice,
etc., is at present nothing but a lack of insight into the
political situation * * *.”
At the time he was appointed Minister, Thierack also became the
president of the German Academy of Law, and of the National Socialist
Association of Jurists. The temper of the new administration of justice
was reflected in Thierack’s announcement to the German Academy of Law
as follows:
“The formulation of law is not a matter of science and a goal
in itself, but rather a matter of political leadership and
organization. Therefore, the activities of the Academy relating
to the formulation of law must be coordinated with the aims of
political leadership.”[37]
At the time of their appointments, Thierack and Rothenberger envisaged
an ambitious program for simplifying the hierarchy of German courts,
drastically reducing the number of judges, and “modernizing” the
education and training of judges in accordance with prevailing
political thought. Much of this program was never realized, but
Thierack and Rothenberger did succeed in developing new devices for
direct control of judicial decisions by the government. This has been
also foreshadowed in Rothenberger’s thesis submitted to Hitler:
“* * * a judge who is in direct relation of fealty to the
Fuehrer must judge ‘like the Fuehrer.’ In order to guarantee
this, a direct liaison officer without any intermediate agency
must be established between the Fuehrer and the German judge,
that is, also in the form of a judge, the supreme judge in
Germany, the ‘Judge of the Fuehrer.’ He is to convey to the
German judge the will of the Fuehrer by authentic explanation of
the laws and regulations. At the same time he must, upon the
request of the judge, give binding information in current trials
concerning fundamental political, economic, or legal problems
which cannot be surveyed by the individual judge.”
In part, this executive control was accomplished by conferences between
the prosecutors and the judges, in which the prosecutor advised the
judge what measure of sentence the Ministry of Justice thought fitting
in a particular case. But an even more effective device was a series
of confidential circulars to the judges known as Judges’ Letters
(Richterbriefe) which Thierack dispatched, under his own signature
as Minister of Justice, to the judges and prosecutors throughout the
German judicial system. Thierack announced this forthcoming series in
September 1942 in the following letter:
“To aid the judge in fulfilling his high duty in the life of our
people, I decided to publish the Judges’ Letters. They shall be
distributed to all German judges and prosecutors. These Judges’
Letters will contain decisions that seem to be especially
worthwhile mentioning, on account of result or argumentation.
On these decisions, I will show how a better decision might
or should have been found; on the other hand, good, and for
the national community, important decisions shall be cited as
examples.
“The Judges’ Letters are not meant to create a new casuistry,
which would lead to a further ossification of the administration
of justice and to a guardianship over the judges. They will
rather tell how judicial authorities think National Socialist
justice should be applied and thereby give the judge the inner
security and freedom to come to the right decision.
“The contents of these letters are confidential; the chief of an
office shall keep them, and let every judge and prosecutor take
notice of them against receipt.
“For the publication of the Judges’ Letters, the collaboration
of all the judges and prosecutors is needed. I expect that
suitable decisions from all branches of justice will be
presented to me. On publication, neither the judge nor the
deciding court will be named.
“I am convinced that the Judges’ Letters will help to influence
the administration of justice uniformly according to National
Socialist doctrines.”
The first letter was published on 1 October 1942. In a sort of
hortatory prelude, many thoughts and ideas from the Rothenberger thesis
were embodied. Thereafter, a number of criminal cases and the sentences
therein imposed were set forth and commented upon.
Four cases dealing with crimes committed during black-outs were
described; those decisions in which the death penalty had been imposed
were approved, the others were all criticized for being too mild. Six
cases dealing with sex offenses followed; the sentences in five of
them were condemned as utterly inadequate. No case was cited where the
sentence was thought too severe.
At the end of the letter, three cases dealing with Jews were discussed
in great detail. One of these dealt with the racial law which required
all Jews to adopt the surname “Sarah” or “Israel” according to their
sex. A Jewish woman had neglected to apply to the telephone company to
change her listing by the addition of the name “Sarah.” The district
court sentenced her to a fine of thirty reichsmarks, or 19 days in
prison. The court set forth in its opinion that certain other courts
had construed the law as not requiring an application to change a
telephone listing, and that the Jewess might have relied on these
decisions. Thierack’s letter described the Jewess’ action as “typical
Jewish camouflage in her business dealings” and stated that the lack
of uniformity in the decisions in no way justified leniency in the
punishment.
In the second case, a special coffee ration had been distributed in a
certain town, in the autumn of 1940. A large number of Jews had applied
to receive the ration. However, since Jews were automatically excluded
from the distribution, they did not receive any coffee. The following
year, the food authorities imposed a fine on the Jews for the offense
of having applied for the coffee; thereupon several hundred Jews sought
relief against the fine in the district court. The judge rescinded the
fine on the basis of the statute of limitations and for other legal
reasons, and expressed the opinion that the Jews had not committed any
punishable act in merely applying for the coffee. On this decision,
the Reich Minister’s letter commented as follows (_NG-298, Pros. Ex.
81_):
“The ruling of the local court, in form and content, borders on
embarrassing a German administrative authority to the advantage
of Jewry. The judge should have asked himself the question: What
is the reaction of the Jew to this 20-page-long ruling, which
certifies that he and the 500 other Jews are right and that he
won over a German authority, and does not devote one word to the
reaction of our own people to this insolent and arrogant conduct
of the Jews. Even if the judge was convinced that the food
office had arrived at a wrong judgment of the legal position,
and if he could not make up his mind to wait with his decision
until the question, if necessary, was clarified by the higher
authorities, he should have chosen a form for his ruling which,
under any circumstances, avoided harming the prestige of the
food office and thus putting the Jew expressly in the right
toward it.”
In the third case, a wealthy young Jew had committed certain violations
of the German foreign currency regulations. The district court,
although it found certain extenuating circumstances, imposed a heavy
fine on the Jew and sentenced him to 2 years’ imprisonment. This
decision particularly provoked the Reich Minister of Justice, who said
(_NG-298, Pros. Ex. 81_):
“The court applies the same criteria for the award of punishment
as it would if it were dealing with a German fellow citizen as
defendant. This cannot be sanctioned. The Jew is the enemy of
the German people, who has plotted, stirred up, and prolonged
this war. In doing so, he has brought unspeakable misery upon
our people. Not only is he of a different, but he is also of an
inferior race. Justice, which must not measure different matters
by the same standard, demands that just this racial aspect
must be considered in the award of punishment. Here, where a
profiteering transaction typical of the defendant as a Jew, and
to the disadvantage of the German people, had to be judged, the
verdict, in awarding punishment, must take into consideration in
the first place that the defendant for years had deprived the
German people of considerable assets. * * * This typical Jewish
parasitical attitude required the most severe judgment and
heaviest punishment.”
Beginning with this issue in October 1942, the Judges’ Letters were
issued regularly and continued to be filled with exhortations to the
utmost ruthlessness in the imposition of sentences. Later on, they
were supplemented by Lawyers’ Letters (Rechtsanwaltbriefe). As time
went on, German criminal law and procedure scarcely retained any other
elements than that of threatening wavering elements of the population
into submission. The wholesale destruction of legal process culminated
at the very end of the war in the creation of the emergency civilian
courts martial, which have already been mentioned. These courts martial
were given jurisdiction “for all kinds of crimes endangering the German
fighting power or undermining the people’s defensive strength”[38]
and, if they found the defendant guilty, could impose only the death
sentence. The end of the war cut short the life of these tribunals,
after ten weeks of judicial terrorism.
Throughout the war, the administrative and penal branches of the
Ministry of Justice continued to cooperate in protecting loyal
followers of the Third Reich from criminal prosecution for their
innumerable atrocities against Poles, Jews, and other “undesirable
elements.” At the successful conclusion of the Polish campaign,
an unpublished decree suspended all prosecutions against racial
Germans in Poland for any punishable offenses which they might
have committed against Poles during the Polish war “due to anger
aroused by the cruelties committed by the Poles.” In 1941, the
defendant Schlegelberger assured Rudolf Hess that he would consider
“benevolently” an amnesty in any particular case of atrocities
committed after the conclusion of the Polish campaign. An example of
this “benevolent consideration” may be worth noting. Two Germans,
one of whom was a sergeant of police, shot two Polish priests in
Poland in the spring of 1940 “for no reason other than hatred for the
Catholic clergy.” A Special Court imposed 15 years’ penal servitude for
manslaughter. After 2 years of the sentence had been served, Himmler
asked that the Germans be pardoned, and that it be made possible for
them to “win their reprieve” through service at the front. At Himmler’s
request, the Ministry of Justice reduced the sentence to 5 years, and
both men were released from confinement and assigned to duty in a
Waffen SS [armed SS] unit.
After the advent of Thierack and Rothenberger, cooperation between the
Ministry of Justice and Himmler’s police became even closer. On 18
September 1942 Thierack and Rothenberger held a long conference with
Himmler and other high ranking SS leaders at Hitler’s headquarters.
Thierack’s notes of the meeting included the following (_654-PS,
Pros. Ex. 39_):
“1. Correction by special treatment at the hands of the police
in cases where judicial sentences are not severe enough. On the
suggestion of Reichsleiter Bormann, the following agreement was
reached between the Reich Leader SS, and myself:
_a._ In principle, the Fuehrer’s time is no longer to be
burdened with these matters.
_b._ The Reich Minister of Justice will decide whether
and when special treatment at the hands of the police is to be
applied.
_c._ The Reich Leader SS will send the reports, which he
sent hitherto to Reichsleiter Bormann, to the Reich Minister of
Justice.
_d._ If the views of the Reich Leader SS and those of the
Reich Minister of Justice agree, the final decision on the case
will rest with them.
_e._ If their views are not in agreement, Reichsleiter
Bormann will be asked for his opinion, and he will possibly
inform the Fuehrer.
_f._ In cases where the Fuehrer’s decision on a mild
sentence is sought through other channels (such as by a letter
from a Gauleiter) Reichsleiter Bormann will forward the report
to the Reich Minister of Justice. The case will then be decided
as already described by the Reich Leader SS and the Reich
Minister of Justice.
“2. Delivery of antisocial elements from the execution of
their sentences to the Reich Leader SS to be worked to death.
Persons under security detention--Jews, gypsies, Russians,
and Ukrainians, Poles with more than 3-year sentences; Czechs
and Germans with more than 8-year sentences--will be turned
over without exception according to the decision of the Reich
Minister of Justice. First of all, the worst antisocial elements
among those just mentioned are to be handed over. I shall inform
the Fuehrer of this through Reichsleiter Bormann.
* * * * * * *
“14. 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, and Ukrainians are no
longer to be tried by the ordinary courts, so far as punishable
offenses are concerned, but are to be dealt with by the Reich
Leader SS. This does not apply to civil lawsuits, nor to Poles
whose names are registered for, or entered in the German Racial
Lists.”[39]
We said at the outset that the defendants and their colleagues
accomplished the complete overthrow of justice and law in Germany. The
foregoing recital of the steps in this process and the proof to be
introduced will, we think, make this abundantly clear. The Third Reich
became a realm of despotism, death, and finally, of despair.
But the very perversion and brutality of the Nazi penal system may
lead us to think of it as aimless cruelty, which it is not. Fanatical,
ruthless, and even unbalanced as the German leaders might have been,
they were never purposeless. Law and justice were destroyed for a
reason. They were destroyed because by their very nature they stood
athwart the path of conquest, destruction, and extermination which the
lords of the Third Reich were determined to follow. The Nazi Special
Courts, double jeopardy, the flouting of the letter and the spirit of
the law--those things were not ends in themselves. They were methods
deliberately adopted for the purpose of causing death, torture, and
enslavement. Now that we have traced the steps in the conspiracy, it is
timely that we examine the murders and other atrocities which were its
intended and actual outcome.
COUNTS TWO AND THREE
WAR CRIMES AND CRIMES AGAINST HUMANITY
Two facts stand out when we study the crimes charged in this
indictment. First, the diabolical novelty presented by the designed
use of a nation’s system of justice and its machinery by the governing
power of that nation, as a weapon of destruction--an instrumentality of
murder, kidnapping, slavery, torture, brutality, and larceny. Second,
the mass character, and therefore the enormity of the crimes committed
by these defendants with this new weapon--this headman’s axe fashioned
from the scales of justice in a forge, stoked with national greed and
racial bigotry and hatred, fanned by blasts of directed propaganda and
shaped by the calculated blows of designedly infamous legislation,
controlled and dominated courts, and a studied effort to make
ineffective or to eliminate completely, the defensive aids customarily
enjoyed by defendants in the courts of civilized nations.
These facts in turn have the definite effect of confusing and dulling
the minds of lawyers and laymen alike, so that they do not clearly
understand either the right and the power of this Tribunal to try these
defendants under international law or the simple standards by which
their crimes can be measured and judged.
It follows, therefore, that we should now pause at the threshold of
this trial to make clear the authority under and by which we act, and
the time honored standards under which we shall assert and prove the
guilt of these defendants.
A concise review of recent history will be helpful and therefore proper.
On 30 October 1943 Prime Minister Churchill, Premier Stalin, and
President Roosevelt issued their Moscow Declaration. That part which is
pertinent to an understanding of what we do here reads as follows:
“The above Declaration is without prejudice to the case of the
major criminals whose offenses have no particular geographical
localization and who will be punished by the joint decision of
the Governments of the Allies.”[40]
It is clear that those criminals whose offenses have no particular
geographical localization, are to be “punished,” not necessarily tried,
by the “joint decision,” not necessarily a joint or international
tribunal, of the Allies. The basic policy to punish is thus clearly
laid down.
Thereafter, the same three powers met at Potsdam after the
unconditional surrender of Germany. At this meeting representatives
of the French nation also participated. There agreements and
understandings relative to the future policies to be pursued by those
governments toward Germany and war criminals were reached. Two of them
should be recalled, because they throw light upon the stature and
the international character of this Tribunal and also of the purpose
behind the definition of the crimes for the commission of which these
defendants have been indicted and are being tried.
In the statement released at Potsdam on 2 August 1945, they said:
“The three governments have taken note of the discussions which
have been proceeding in recent weeks in London * * * with the
view to reaching agreement on the methods of trial of those
major war criminals whose crimes under the Moscow Declaration of
October 1943 have no particular geographical localization, * * *
they regard it as a matter of great importance that the trial of
those major criminals shall begin at the earliest possible date.”
We thus see that the three powers have now advanced from their thinking
at Moscow, in that they have determined the method by which these
criminals are to be “punished.” But the method of trial is still to be
the result of the “joint decision” of the powers who signed the Moscow
Declaration, concurred in by the representatives of the French nation.
The decision to try by judicial proceeding came six days later at
London.
But another significant decision was reached at Potsdam. The
powers concerned reached agreement on “The Political and Economic
Principles to Govern the Treatment of Germany in the Initial Control
Period.” Among these we find the following which are pertinent to an
understanding of what we do here.
“A. Political Principles
“1. In accordance with the agreement, * * * supreme authority
in Germany is exercised, on instructions from their respective
governments, by the commanders-in-chief of the armed forces (of
the governments concerned) each in his own zone of occupation
and also jointly, in matters affecting Germany as a whole, in
their capacity as member of the Control Council.
“2. So far as practicable, there shall be uniformity of
treatment of the German population throughout Germany.
“3. The purposes of the occupation of Germany by which the
Control Council shall be guided are:
* * * * * * *
“(III) To destroy the National Socialist Party and its
affiliated and supervised organizations, to dissolve all Nazi
institutions, to insure they are not revived in any form, * * *.
“(IV) To prepare for the eventual reconstruction of German
political life on a democratic basis and for eventual peaceful
cooperation in international life in Germany.”
On 8 August 1945 the powers which were represented at Potsdam, through
their equally accredited representatives, brought forth at London an
agreement which in its preamble refers to “major war criminals,” and
in article I, to “war criminals.” The agreement also contemplated an
International Military Tribunal for the trial of such criminals and for
a charter to define the constitution, jurisdiction, and functions of
that Tribunal, which charter was in fact made a part of said agreement
on the same day. Two things deserve our attention at this point. The
charter defined crimes and thus fixed an objective standard by which
“war criminals” were to be identified. The adjective “major” was
thereupon immediately relegated to the role of superficial invective
or at most to that of fixing a comparative standard of criminal
importance, measured solely by the judgment of the committee of chief
prosecutors or the practical and mechanical necessities of the actual
trial. The crimes of most of these defendants are so great that if they
choose, they may consider themselves slighted by the committee of chief
prosecutors. The prosecution in this case shall do its ethical best to
see that they were not fortunate.
On 20 December 1945, the same three Allied Powers which had issued the
Moscow Declaration, and the same four Powers which had reached the
Potsdam Agreements and entered into the London Agreement and created
the Charter of the International Military Tribunal, also enacted Law
No. 10 of the Control Council for Germany.
Law No. 10 provided for this Tribunal and the method by which it was
thereafter to be brought into existence; defined the crimes over which
it exercises jurisdiction, and adequately described the persons it had
jurisdiction to try and punish and the punishment it was authorized to
impose. The preamble clearly discloses that Law No. 10 was enacted and
therefore this Court was created to accomplish two purposes, first--
“In order to give effect to the terms of the Moscow Declaration
of 30 October 1943 and the London Agreement of 8 August 1945 and
the Charter issued pursuant thereto,”
and second,
“In order to establish a _uniform legal basis_ in Germany
for the prosecution of war criminals and other similar
offenders, other than those dealt with by the International
Military Tribunal.”
Although this preamble does not expressly say so, it is clear that the
second purpose is to implement the Potsdam Agreement, which required
“uniform treatment of the German population throughout Germany”
as an inter-allied multipowered policy. The policy was thus made
inter-allied. The method of implementing it was all that was delegated
as a matter of right, not power, to the several contracting nations
acting within their zones of occupation through their zonal commander.
This Tribunal therefore is international in its source as well as in
its jurisdiction over subject matter and persons.
On 30 September and 1 October 1946, approximately 13 months after
the London Agreement and Charter were created and more than 9 months
after Law No. 10 was promulgated, the International Military Tribunal
rendered its decision and judgment upon the individual defendants whom
it found guilty.
After the judgment of the International Military Tribunal on 18
October 1946, the Zone Commander of the American Zone, for the purpose
of implementing Law No. 10 of the Inter-Allied Control Council for
Germany, and to carry out the purposes therein stated and previously
agreed upon by the four signatory powers at London and Potsdam,
promulgated Ordinance No. 7, concerning the organization and powers of
certain military tribunals. That ordinance brought this Tribunal into
existence and laid down many of the procedures under which it operates,
but it did not restrict nor limit its jurisdiction over persons or
subject matter set out in Law No. 10 nor did it define new crimes.
Nothing that has been done since the four Powers adopted the London
Agreement and Charter has operated to materially limit the jurisdiction
over persons and subject matter of this Tribunal from that conferred
upon the International Military Tribunal by those international
instruments.
A study of the charter, Law No. 10 and Ordinance No. 7 discloses that
Law No. 10, article II, paragraph 5 tolls any and all statutes of
limitations for the period from 30 January 1933 to 1 July 1945. It also
contains provisions which have the effect of depriving this Tribunal
of recognizing as a valid defense in this trial any immunity, pardon
or amnesty granted to any of these defendants by the Nazi government.
This is a limitation not imposed by the charter upon the International
Military Tribunal.
Likewise, Ordinance No. 7, article X is in no wise a limitation upon
the powers of this Court to determine the guilt or innocence of these
defendants.[41] It reads as follows:
“The determinations of the International Military Tribunal
in the judgments in Case No. 1 that invasions, aggressive
acts, aggressive wars, crimes, atrocities or inhumane acts
were planned or occurred, shall be binding on the tribunals
established hereunder and shall not be questioned except
insofar as the participation therein or knowledge thereof by
any particular person may be concerned. Statements of the
International Military Tribunal in the judgment in Case No.
1 constitute proof of the facts stated, in the absence of
substantial new evidence to the contrary.”
This provision is couched in language calculated to adequately
safeguard the rights of defendants, so that, by the same reasoning,
it cannot be said to operate as an oppressive rule, which in any
material manner unduly restricts this Court in making its own ultimate
determination as to the guilt or innocence of these defendants. It
is a reasonable rule designed to avoid undue repetitious production
of acknowledged facts in the trial of this cause. As such it does
not detract from the dignity of this Court nor affect the concurrent
nature of the jurisdiction which this Court enjoys in relation to the
International Military Tribunal.
In conclusion, therefore, we take the position that this Tribunal, like
the International Military Tribunal, derives from the “joint decision”
of the signers of the Moscow Declaration and of the French nation; that
the subject matter over which it has jurisdiction, the crimes which it
has jurisdiction to try, are codified by the same powers, and that it
has jurisdiction over the same persons, those persons who are charged
by indictment with having committed these crimes. These are the basic
elements upon which concurrent jurisdiction as a matter of law has
always been determined to exist by all courts which have had occasion
to decide this question.
We have belabored this question of the equal dignity and concurrent
jurisdiction of this Tribunal with that of the International Military
Tribunal for reasons which are legal and also arise from the standpoint
of policy. To us they seem important and because they do, a due regard
for the candor owed to this Tribunal and to the world obligates us to
state them.
MR. LAFOLLETTE: First, we believe that this Tribunal
has the right and power to decide all questions of law, other
than the “criminal nature” of those groups or organizations which
the International Military Tribunal found to be criminal, and as
distinguished from the ultimate facts set out in Ordinance No. 7,
article X, as original questions of law which it has the right to
decide, contrary to the decisions reached by the International Military
Tribunal, if it is convinced that a proper interpretation of the
Charter and Law No. 10, or of the ultimate facts to be inferred from
the evidence in this case, require it logically, and therefore, by the
exercise of intellectual integrity, to reach a contrary decision. We
do not deny the persuasive authority of the decision and judgment of
the International Military Tribunal, but we point out that between the
International Military Tribunal and this Tribunal the relationship of a
court of superior jurisdiction to that of one of inferior jurisdiction
does not exist in fact or in law. Therefore the decision and judgment
of the International Military Tribunal is not binding upon this Court;
except to the extent fixed by said article X and the other provisions
which are referred to.
Second, from the standpoint of policy the prosecution believes it
owes it not only to this Tribunal but to the world to establish the
concurrent jurisdiction and therefore the equal dignity of this
Tribunal and of the proceedings before it, with those before the
International Military Tribunal, which preceded it. We try here war
criminals charged with the commission of international crimes, codified
as such, by the same nations which codified the crimes for which the
International Military Tribunal tried the defendants indicted and
arraigned before it. This is not an American side show, national in
character. On the contrary, it is the avowed program of the Government
of the United States to carry on the obligation assumed at Moscow
in 1943 by living up to the inter-Allied agreements made at Potsdam
in 1945. Finally, we assert the high character of this Tribunal and
therefore of the proceeding before it, in order that we ourselves
may understand the high judicial character of our actions and the
obligations of candor and ethical conduct which these proceedings of
necessity impose upon counsel appearing before this bar.
We try these defendants, therefore, in a Court whose authoritative
source and whose jurisdiction over subject matter and persons is equal
to, and concurrent with, the International Military Tribunal (IMT). We
try them for crimes, war crimes, and crimes against humanity, which
were unlawful, as alleged in the indictment, when committed because
they were in violation of the “universal moral judgment of mankind”
as attested by the judicial decision of the International Military
Tribunal.
We try them in an international court for crimes under international
law which finds its authority not in power or force, but in the
universal moral judgment of mankind.
We shall now present our general theory of the prosecution’s case. In
doing so, we shall outline the broad legal principles which establish
the relevancy of our evidence to the crimes charged. We shall not, at
this time, except perhaps for the purpose of illustration, relate it
to each of these defendants. That will be done adequately enough to
satisfy the Court and disconcert the defendants when we sum up.
In count two of this indictment, we charge these defendants with
the commission of war crimes as defined in article II, paragraph
1(_b_) of Law No. 10, and in count three we charge them with
the commission of crimes against humanity as defined in Law No. 10,
article II, paragraph 1(_c_). We have demonstrated that as we have
charged these crimes in this indictment, we only ask for convictions
for the same crimes for which the defendants before the IMT were
tried; therefore, we adopt basically the following statements from the
decision of the IMT:
“With respect to war crimes, however, as has already been
pointed out, the crimes defined by article 6, section (_b_)
of the Charter [which are the same crimes defined by Law No. 10,
article II, paragraph 1(_b_)] were already recognized as
war crimes under international law.”[42]
There’s a parenthetical statement in there, Your Honors will note.
“But it is argued that the Hague Convention does not apply in
this case, because of the ‘general participation’ clause of
article 2 of the Hague Convention of 1907. * * *.
“In the opinion of the Tribunal it is not necessary to decide
this question. The rules of land warfare expressed in the
Convention undoubtedly represented an advance over existing
international law at the time of their adoption. But the
Convention expressly stated that it was an attempt ‘to revise
the general laws and customs of war’, which it thus recognized
to be then existing, but by 1939 these rules laid down in the
Convention were recognized by all civilized nations, and were
regarded as being declaratory of the laws and customs of war
which are referred to in Article 6 (_b_) of the Charter.
“A further submission was made that Germany was no longer bound
by the Rules of Land Warfare in many of the territories occupied
during the war, because Germany had completely subjugated those
countries and incorporated them into the German Reich, a fact
which gave Germany authority to deal with the occupied countries
as though they were a part of Germany. * * *. The doctrine was
never considered to be applicable so long as there was an army
in the field attempting to restore the occupied countries to
their true owners, and in this case, therefore, the doctrine
could not apply to any territories occupied after 1 September
1939. As to the war crimes committed in Bohemia and Moravia, it
is a sufficient answer that these territories were never added
to the Reich, but a mere protectorate was established over them.
“* * * but from the beginning of the war in 1939 war crimes
were committed on a vast scale, which were also crimes against
humanity; and insofar as the inhumane acts charged in the
indictment, and committed after the beginning of the war, did
not constitute war crimes, they were all committed in execution
of, or in connection with, the aggressive war, and therefore
constituted crimes against humanity.”[43]
It is proper to point out also, that in order to establish the guilt
of any of these defendants for crimes against humanity, it is not
necessary that they themselves shall be indicted for or convicted of a
crime against peace; that is, the waging of aggressive war, which the
IMT held began on 1 September 1939.
In the trial before the IMT the record discloses that seven defendants
were convicted of crimes against humanity, who either were not indicted
for, or were found not guilty of, participation in a conspiracy to
commit crimes against peace or of the commission of a crime against
peace.
We want to discuss briefly the substantive law under which we try this
case.
Law No. 10, article II, paragraph 2 is part of the substantive law
under which this indictment is brought. An effective presentation of
the meaning and effect of this paragraph is aided by presenting those
parts of it which are relevant to this case verbatim at this time:
“Any person without regard to nationality or the capacity
in which he acted is deemed to have committed a crime as
defined in paragraph 1 of this article, if he was (_a_)
a principal, or (_b_) was an accessory to the commission
of any such crime or ordered or abetted the same or (_c_)
took a consenting part therein or (_d_) was connected with
plans or enterprises involving its commission or (_e_)
was a member of any organization or group connected with the
commission of any such crime or * * *.”[44]
Clause (_f_) of the above paragraph applies only to crimes against
peace, for which none of these defendants is indicted.
We are not concerned in this opening statement with discussing niceties
of legal draftsmanship nor shall we now use American legal terminology
to describe the ultimate relationship of defendants, whose guilt is
fixed by paragraph 2 of article II to the overt act; namely, any crime
as defined in paragraph 1 of article II. But we are concerned with
offering to this Court our observation upon its legal effect.
We do not concern ourselves now with principals or accessories. We do
discuss the relationships arising out of the words “abetted” and the
relationships set out in clauses (_c_), (_d_), and (_e_), paragraph
2 to the overt act. At the threshold, we point out that the crime,
which defendants who occupy any of the relationships last referred to
are guilty of committing, is _any crime as defined in paragraph 1 of
article II_. The proof must show that a crime as defined in Law No. 10,
article II, paragraph (1), that is, a crime within the jurisdiction of
this Tribunal, was committed, but if it was committed by any of the
defendants or a person other than the defendants in the dock or any
of them, and any of these defendants abetted the doing of that act,
was connected with a plan or enterprise to commit it, consented to its
commission, or was a member of any organization or group connected with
the commission of any crime within the jurisdiction of the Tribunal, he
is guilty of committing that crime.
The IMT has given two persuasive interpretations of the meaning of the
words “being connected with” which we cite.
In the case of the defendant Streicher who was found guilty of
committing crimes against humanity, the IMT said:
“Streicher’s incitement to murder and extermination at the time
when Jews in the East were being killed under the most horrible
conditions clearly constitutes persecution on political and
racial grounds in connection with war crimes, as defined in the
charter, and constitutes a crime against humanity.”[45]
The case of von Schirach is also most enlightening. Anschluss with
Austria took place on 12 March 1938. Von Schirach was appointed
Gauleiter of Vienna in July 1940. Von Schirach was found guilty of
committing crimes against humanity.
The IMT said:[46]
“As has already been seen, Austria was occupied pursuant to
a common plan of aggression. Its occupation is, therefore, a
‘crime within the jurisdiction of the Tribunal’, as that term
is used in article 6 (_c_) of the Charter. As a result,
‘murder, extermination, enslavement, deportation and other
inhumane acts,’ and ‘persecutions on political, racial or
religious grounds’ in connection with this occupation constitute
a crime against humanity under that article.”
* * * * * * *
“The Tribunal finds that von Schirach, while he did not
originate the policy of deporting Jews from Vienna, participated
in this deportation after he had become Gauleiter of Vienna.
He knew that the best the Jews could hope for was a miserable
existence in the ghettos of the East. Bulletins describing the
Jewish extermination were in his office.”[47]
It seems clear from these cases that there need be no prearrangement
with, or subsequent request by, the person or persons who actually
commit the crime and a defendant, to make him guilty as the IMT
interpreted the words “being connected with.” It would appear to be
sufficient that the defendant knew that a crime was being committed,
and with that knowledge acted in relation to it in any of the
relationships set out in paragraph 2 of article II which we have
heretofore been discussing.
We think it is also helpful to call to the attention of the Court one
rule of evidence by which the existence of a conspiracy, that is, the
relationship of individuals to the doing of the overt act, is held to
be established.
The case from which we quote arose out of the activities of the Ku
Klux Klan during the height of its power in Indiana. The people of
the United States, on that occasion, at least, had enough courage and
foresight not to let that organization acquire the control of all of
its judicial system, the way the people of Germany let these defendants
and their fellow Nazis acquire control of and pervert theirs.
Consequently, our incipient Nazis were tried. The court in the cited
case held that the proof of the doing of the overt act was in itself
evidence of the intent of the conspirators to commit the act so as to
establish their intent to conspire. I quote from the decision:
“True it is, that if the evidence is as consistent with the
innocence of the appellant as with his guilt, no conviction can
be had. It is equally true that overt acts of the parties may be
considered with other evidence and attending circumstances in
determining whether a conspiracy exists, _and where the overt
acts are of the character which are usually, if not necessarily,
done pursuant to a previous scheme and plan, proof of the acts
has a tendency to show such preexisting conspiracy, so that when
proved they may be considered as evidence of the conspiracy
charged_.”[48]
We point out that proof of murders, enslavement, kidnapping, and
mayhem, which are a few of the crimes committed through the device of
a so-called legal and judicial process, are competent evidence that
the preceding acts which perverted a judicial system into a means for
committing such crimes were part of a plan and enterprise to make the
commission of those crimes possible.
PRESIDING JUDGE MARSHALL: You are not giving the citation of
the Indiana case?
MR. LAFOLLETTE: I beg your pardon, Your Honor. It’s a C.C.A.
case.
PRESIDING JUDGE MARSHALL: What was the page of the Federal
second?
MR. LAFOLLETTE: 365. This mimeograph may not be completely
correct. I am sure that’s right. Otherwise, if that should not be
correct I will advise the Court.
The overt acts are evidence under counts two and three of this
indictment not only of the intent with which the preceding acts were
done, but also of the fact that each of those defendants who knew
that the preceding acts were being performed--and it is legally
inconceivable to believe that they did not know--had knowledge of the
fact that there was probable danger that the preceding acts would
result in the overt crimes or that the preceding acts, being unlawful
_eo ipso_ and therefore felonious, would result in the overt
acts as the natural consequence of preceding felonious acts. This is
murder--whenever a homicide resulted from the foregoing act. And the
murder being “an act usually done pursuant to” the “previous scheme and
plans” establishes the guilty intent of each and all of the defendants
to commit that murder who stood in any of the relationships to the
murder defined in paragraph 2, article II of Law No. 10.
We have also said that it is an inevitable result of the murder of
hundreds of thousands and millions of humans that such mass murder
dulls our realization that the basic simple principles of the law which
define the crime of murder of a single human furnish the standard by
which was determined the guilt of those who have murdered those humans.
A review of these basic rules is therefore proper.
In 1877 Mr. Justice Stephen undertook to restate the English common law
of homicide as he then found it. He states that an unlawful homicide,
without adequate provocation, was murder, if it followed from an act
accompanied by one of the following states of mind: (1) an intention to
cause the death of or grievous bodily harm to any person; (2) knowledge
that the act will probably cause either of the results, even though the
actor hopes that they might not occur or is indifferent about them; or
(3) an intention to commit a felony or to resist a peace officer in the
execution of his duty.
As to the first category, no one can quarrel and there is evidence to
support the commission of such murders by individual defendants.
As to the second category, Mr. Justice Holmes thought that the
actor’s awareness of the danger was immaterial, that the standard was
completely objective. In Comm. _vs._ Pierce (1884) 138 Mass. 165,
page 178, he stated his view succinctly--
“When the jury are asked whether a stick of a certain size was a
deadly weapon they are not further asked whether the defendant
knew it was so.” /#
In any event, in this case before this Tribunal, we shall ask
the Court to bear in mind that lawyers, by the very nature of
their legal training and experience, knew that the enactment of
_ex post facto_ laws, specially designed racial legislation
and other legislation directly designed to restrict and destroy
the right to make an adequate defense to a criminal charge; the
handpicking of judges and their control by state and party;
the submergence of the courts and prosecutors to the superior
authority of the police; pretrial agreement of judges and
prosecutor on judgment and penalty; unlawful extraterritorial
extension of German law and the issuance of the Nacht und Nebel
[Night and Fog] decree contrary to the laws of war, would
probably cause death of human beings, subjected to such a
perverted judicial system. These defendants are not farmers or
factory workers.
As to the third category, that of homicide resulting from the
intention to commit a felony or while resisting arrest, it is
not amiss to point out that those who are connected with a plan
to extend, or who consent to, or abet the unlawful extension of
German law and German courts into overrun countries contrary to
the laws of war, are doing acts which amount to larceny while
armed or robbery; and that those individuals who commit acts
which abet or are connected with the waging of an aggressive war
or a plan to do so, or who consent thereto, are resisting the
efforts of the peace enforcing nations of the world to arrest
the criminal. The evidence in this case will establish the
unprovocated homicide of countless numbers as the result of the
doing of such acts by these defendants which are clearly felony
murders.
These are but the most apparent applications of the three
categories of murder to the evidence in this case. Time will
not permit our further exemplifying them now. They will be
presented adequately when we summarize the evidence. We do
not wish to be understood by furnishing these few examples
as having exhausted the cases, where the application of the
principles so readily understood when one life is taken by
murderous homicide, to the evidence of this case, will establish
murders and mass murders by these defendants. Furthermore, other
crimes common to the criminal laws of civilized nations, such
as enslavement, kidnapping, or mayhem, have been committed by
these defendants, which can be established by the application
of similar basic principles to the evidence, which should make
the task more simple and at the same time, by reducing the
seeming complexities of mass criminality under international
law to concepts with which the average citizen of a nation is
acquainted, seem to serve the salutary purpose of increasing the
hatred of the average man for war and to warn him of the dangers
inherent in the totalitarian police state, dominated by the
philosophy that the end justifies the means used to attain it.
The crimes charged in count two and in count three fall
generally into several categories.
Substantively, there are first those war crimes which arise
out of the violation of the laws and customs of war, including
section I, articles 4–7; section II, article 23; section III,
articles 43, 45, 46, and 50 of the Hague Regulations of 1907;
and chapter 6, title I, articles 2–4 of the Prisoners of War
Convention (Geneva 1929); and the decision and judgment of the
IMT of 30 September and 1 October 1946.
These defendants, in one or more of the relationships set out
in paragraph 2 of article II of Law No. 10, committed numerous
criminal acts as defined in Law No. 10, article II.
These include, as the first substantive group of crimes, the
wrongful extension of German law and German courts into and
over the Eastern Territories and other overrun nations and the
Protectorate, each of which, we contend, was not only an act
done by these defendants in connection with, and in furtherance
of, aggressive war, but also done by them for purely political
reasons which made no pretense of being based upon military
necessity, so that it was _ipso facto_ unlawful or _malum
per se_ and made every act initiated thereafter under such
wrongful extension, as against any of the defendants who are
responsible under Law No. 10, article II, for that wrongful
extension of German law, fall into the category of a felony,
murder, or a criminal enslavement, mayhem, or atrocity; or a
larceny while armed, or a robbery as to plunder of public or
private property.
The other large group in this category of war crimes is the
acts done in connection with the promulgation of the Nacht und
Nebel decree of 7 December 1941 and the acts thereafter done in
carrying out that program.
The second substantive group consists of the crimes arising
out of the activities of the defendants in connection with the
Gestapo, SIPO, SS, and other police groups in which either
under the façade of judicial proceedings or by open violation
of the meager protection afforded the individuals under Nazi
law, Germans and non-Germans were turned over to enslavement and
in many cases to demonstrable certain deaths in concentration
camps, or in prisons where no pretense was made to operate them
other than as concentration camps or human slaughterhouses.
The third group is the cases where, under alleged trials, in the
People’s Court, Special Courts, and civilian courts martial,
certain of these defendants, by the use of the prescribed
procedures or those actually practiced, the fixing of penalties
which outrage the universal moral judgment of mankind, and
through convictions based only upon the subjective conclusions
of the prosecutor or judge, which we describe now only as
examples, give rise to the legal conclusion that the defendants
thus convicted were murdered or unlawfully enslaved under the
guise of exercising a judicial process.
The Court will get a better understanding of these basic
categories of substantive crimes by the following illustrations
from the evidence, which I will now ask Mr. Douglas King to
first present at this time.
a. Murder Committed in Violation of Articles 43, 46, etc.
of the Hague Convention
MR. KING: The extension of German law and German courts
into conquered and occupied countries followed as a matter of
course after the victorious German armies had done their work.
In Poland and the Eastern Territories decrees of 4 October 1939
and 6 June 1940 introduced and extended the German jurisprudence
into these countries. It was, however, unthinkable to the Nazi
mind that a Pole should be able to appeal to German law, that he
should have the right to sue a German before a German court in
the capacity of a plaintiff, or to appear against a German in a
case, or even to serve a writ of execution with the assistance
of a bailiff.
To remedy this intolerable situation, the defendant
Schlegelberger drafted a decree which, by its terms, placed
beyond the reach of the Poles and Jews in the Eastern
Territories the last vestige of protection of even the German
law. This decree was made effective on 4 December 1941 and from
time to time was later amended as the need arose. For instance,
approximately a year later, it was amended and made retroactive
for crimes committed prior to 4 December 1941. We think it will
be of interest to the Court to have in Schlegelberger’s own
words some of the background of this special treatment for the
Poles and Jews in the Eastern Territories and his own statement
as to the purposes which the decree was intended to accomplish.
This letter was addressed to the Reich Minister and Chief of the
Reich Chancellery (Lammers) and refers to Schlegelberger’s draft
of the decree which a few months later was made effective on
Hitler’s orders (_NG-144, Pros. Ex. 199_):[49]
“On being informed of the Fuehrer’s intention to discriminate
in the sphere of the 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
attorneys general of the Eastern Territories, the attached draft
concerning the administration of penal laws against Poles and
Jews in the annexed Eastern Territories and in the territory of
the former Free City of Danzig.
“This draft amounts to special legislation both in the sphere
of substantive law and in that of criminal procedure. In this
connection the suggestions made by the Fuehrer’s deputy have
been taken into consideration to a great extent.”
In referring to the various provisions of the ordinance, Schlegelberger
has this to say (_NG-144, Pros. Ex. 199_):
“I have been in agreement with the opinion held by the Fuehrer’s
deputy that a Pole is less sensitive to the imposition of an
ordinary prison sentence; therefore, I have taken administrative
measures to assure that Poles and Jews will be separated from
other prisoners and that their imprisonment will be rendered
more severe * * *.
“For these new kinds of punishment the prisoners are to be
lodged in camps--outside of prisons--and are to be employed with
hard and very hard labor. There are also administrative measures
which provide for special disciplinary punishment; that is,
imprisonment in an unlighted cell, transfer from a prison camp
to a more rigorous prison camp, etc.
* * * * * * *
“A Pole or 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 the 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.
* * * * * * *
“In this sphere of criminal procedure the draft clearly shows
the difference in the political status of Germans on one side
and Poles and Jews on the other.
* * * * * * *
“Criminal proceedings based on this draft will accordingly be
characterized by the greatest possible speed, together with
immediate execution of sentence and will therefore in no way
be inferior to summary court proceedings. The possibility
of applying the most severe penalties in every appropriate
case will enable the penal law administration to cooperate
energetically in the realization of the Fuehrer’s political aims
in the Eastern Territories.”
One of the amendments to this decree, on 3 December 1942 states that no
German attorney is to undertake the defense of Polish persons before
tribunals in the Incorporated Eastern Territories. This, in effect,
prevented any accused person before these courts from having defense
counsel, since Polish lawyers were prohibited from engaging in any
legal practice. That this provision was received favorably by Ministry
officials is indicated by a letter from the president of the court
of appeals in Koenigsberg addressed to the Reich Minister of Justice
shortly after this supplementary decree became effective. The judge, in
the course of his letter, says this:
“It is in the German interest to continue to prohibit the
defense of Poles by German jurists * * *.
“I see no cause to lift or even to modify the present ban
on defense of Poles by attorneys. On the contrary, the ban
placed on the principle of rendering legal assistance to Poles
by attorneys should be still further stressed and made more
extensive.”
To put to rest any fear that the ban of German attorneys would result
in a competitive hardship on them, this judge has the following to say:
“The fear that, in the future, former Polish attorneys or
counsel may be called in to act as legal advisers to Poles
and may gain influence over them (i.e., German counsel) seems
to me improbable. In the Incorporated Eastern Territories of
my district, where, although the population numbers about one
million, only three attorneys are established, it has not been
observed that former Polish attorneys or counsel are engaging in
activities connected with matters of law.
“It is, of course, much easier for the tribunal to have the case
of a person charged put before them by a lawyer nicely arranged
and in the German language. But the judge must dispense with
these facilities when such great issues are at stake for the
German people.”
The Court will, in due course, have an opportunity to examine all of
these documents and an opportunity to observe the ruthless manner in
which this “special legislation” was administered. It is perhaps
superfluous to quote a statement by the president of the court of
appeals of Danzig summarizing the “situation” in his district for a
2-month period in 1942 following the effective date of the decree of 4
December 1941. “There were,” he says, “no complaints about too lenient
decisions during the period reported on.”
The defendant Schlegelberger, shortly after the decree became
effective, conferred with the Reich Governor of Eastern Territories
and worked out a system of administration pursuant to the decree of
4 December 1941, which (1) provided for summary courts martial, (2)
delegated to the Reich Governor the sole right to grant amnesty,
and (3) agreed to the holding of civilian prisoners as hostages. In
summarizing the results of this conference the defendant Schlegelberger
assured the Reich Governor that the “interest of the State can best be
served by regulating matters along the lines of our unanimous consent.”
Thus, it is clear that the extension of German law and German courts
into the Eastern Territories, especially insofar as the Poles and the
Jews were concerned, eventually deprived them of any legal recourse
whatsoever.
What has been said respecting the part played by key officials of
the Ministry of Justice in extending German Law and the German court
system to the occupied territories is equally true of Czechoslovakia
and particularly the Protectorate of Bohemia and Moravia. In one sense,
by virtue of the fact that Czechoslovakia fell to the Nazis before
the war, the experience there served as a proving ground for measures
which were later extended to the Eastern Territories and other occupied
countries.
The decree of 14 April 1939 and the decrees of 2 November 1942 and
of 1 July 1943, the texts of which, among others, will be presented
in evidence, mark the progress of the Nazis in extending German
jurisdiction to Czechoslovakia and are mute evidence of the “legal”
justification for the robbery, extortion, and atrocities, the knowledge
of which has already shocked the world. The prosecution will show
that the Ministry of Justice not only had full knowledge of what was
going on in the Protectorate, but its “experts” took a leading part
in the establishment and administration of the court system in the
Protectorate from the very outset to the end of the war as they did in
the Eastern Territories.
As the evidence unfolds we will see the defendant Schlegelberger active
in drafting “legal justification.” We shall see the defendant Lautz
concerned with even minute matters of administration of the People’s
Court in the trial of Czechoslovak nationals both in Prague and those
removed for trial to Berlin, and we shall note that many of the other
defendants were called upon from time to time for their assistance in
making the court system function to the maximum required by National
Socialist policies as they were enforced upon the Czechoslovak nation.
In refusing citizens of occupied territories protection of the law,
the defendants abetted and brought about the murder of thousands of
persons. The acts of the defendants violated the laws of the countries
where committed and were repugnant to the laws of every civilized
country. In administering occupied territory, the defendants were bound
by the Hague Convention to respect “family honor and rights.” These
obligations the defendants ignored, and so squarely placed themselves
in the category of common war criminals.
b. The Night and Fog Decree
On 7 December 1941 the so-called Nacht und Nebel, or Night and Fog
Decree was issued pursuant to the orders of Hitler and Keitel. Perhaps
never in world history has there been a more perverted and diabolical
plot for intimidation and repression than this. Its terms provided
that in case of continued resistance on the part of the inhabitants
of certain of the occupied countries, but largely aimed at France,
Belgium, and the Low Countries, the suspected perpetrators should
be spirited away without any indication of their whereabouts or
eventual fate. The victims were to be tried by the OKW in the occupied
territories only when it appeared probable that death sentences would
be quickly passed and executed. The others were to be taken to Germany,
there to be tried by Special Courts. Whether the death sentence was
there imposed, prison sentences given, or the individuals “acquitted,”
the first and foremost purpose--that of complete secrecy so far as
their family and friends were concerned--was to be preserved. Thus, it
is clear that the cognomen of Night and Fog was well chosen since in
theory and practice the victims vanished as in the blackness of night
and were never heard of again.
In the IMT opinion, the Court observed that--
“The evidence is quite overwhelming of a systematic rule of
violence, brutality, and terror. * * *. After these civilians
arrived in Germany, no word of them was permitted to reach the
country from which they came or even their relatives; even
in cases when they died awaiting trial the families were not
informed, the purpose being to create anxiety in the minds of
the family of the arrested person. Hitler’s purpose in issuing
this decree was stated by the defendant Keitel in a covering
letter, dated 12 December 1941, to be as follows:
“‘Efficient and enduring intimidation can only be achieved
either by capital punishment or by measures by which the
relatives of the criminal and the population do not know the
fate of the criminal. This aim is achieved when the criminal is
transferred to Germany.’”[50]
Preparations for the carrying out of the decree on the part of the
Wehrmacht were entrusted to Lieutenant General Lehmann[51] of the
legal department of the OKW. He conferred with various members of the
Ministry of Justice to determine whether the Ministry would be able
and willing to assume the trials of the captured individuals shipped
to Germany from the occupied countries. It is more than interesting to
note from a statement signed by General Lehmann that, in his opinion,
the defendant Schlegelberger was the only official in the Ministry of
Justice at that time who had the authority to agree to assume the trial
of these cases.
The total number of victims of Nacht und Nebel may never be known, but
we do know that as of 1 November 1943 the Wehrmacht had delivered a
total of more than 5,200 Nacht und Nebel prisoners for trial to the
several courts throughout Germany designated by the Ministry of Justice
for that purpose.
Originally there were four Special Courts assigned to handle the Nacht
und Nebel cases. The Special Court at Kiel was assigned to the cases
arising in Norway; Cologne to the French cases; Essen to Belgium; and
Berlin for cases of a special nature. In the later stages of the Nacht
und Nebel program the effectiveness of Allied bombing made it necessary
to shift the location of some of these courts, principally in the
transfer of the Cologne court to Breslau.
When we call the roll of the defendants before us today who acted in
and were principally responsible for the large part which the Ministry
of Justice played in the Nacht und Nebel program, we find there the
names of Schlegelberger, von Ammon, Mettgenberg, Lautz, Engert, and
Joel, in addition to others who played less conspicuous, if not less
important, roles. If we were to select one of these men who above all
others should have known the criminal nature of the Nacht und Nebel
program, such a man might very well have been the defendant von Ammon
who was the Ministry of Justice’s specialist in international law. Yet
the fact is that the name, von Ammon, together with that of Mettgenberg
recur again and again as the principal negotiators with the OKW in
matters concerning the application of law and the administration of the
Nacht und Nebel program.
The Reich Minister of Justice, in a letter to the public prosecutors
charged with trying Nacht und Nebel cases, outlined in detail the
measures which were to be taken to assure complete secrecy of the
trials. This letter, from which we quote extensively as follows was
endorsed, among others, by von Ammon (_NG-269, Pros. Ex. 319_):
“With regard to criminal procedures on account of punishable
offenses against the Reich or against the occupying forces in
the occupied territories, I request observance of the following
directives, in order not to endanger the necessary top secrecy
of the procedure, particularly regarding the execution of death
sentences and other cases of death among prisoners:
“1. The cards used for investigations for the Reich criminal
statistics need not be filled in. Likewise, notification of the
penal records office will be discontinued until further notice.
However, sentences will have to be registered in lists or on a
card index in order to make possible an entry into the penal
records in due course.
“2. In cases of death, especially in cases of execution of NN
prisoners, as well as in cases of female NN prisoners giving
birth to a child, the registrar must be notified as prescribed
by law. However, the following remark has to be added:
“‘By order of the Reich Minister of the Interior, the entry into
the death (birth) registry must bear an endorsement, saying that
examination of the papers, furnishing of information and of
certified copies of death or birth certificates is admissible
only with the consent of the Reich Minister of Justice.’
“3. In case an NN prisoner sentenced to death desires to draw
up a public will, the judge or notary public and, if necessary,
other persons whose presence is required will have access to
the prisoner. Only officials of the Ministry of Justice may be
called as witnesses. The persons who assist the drawing up of
the will are, if necessary, to be sworn to secrecy. The will has
to be taken into official custody according to article 2 of the
Testaments Law. The disposition receipt has to be kept by the
prosecution until further notice.
“4. Farewell letters by NN prisoners as well as other letters
must not be mailed. They have to be forwarded to the prosecution
who will keep them until further notice.
“5. If an NN prisoner who has been sentenced to death and
informed of the forthcoming execution of the death sentence
desires spiritual assistance by the prison padre, this will be
granted. If necessary, the padre must be sworn to secrecy.
“6. The relatives will not be informed of the death, especially
of the execution of an NN prisoner. The press will not be
informed of the execution of a death sentence, nor must the
execution of a death sentence be publicly announced by posters.
“7. The bodies of executed NN prisoners or prisoners who died
from other causes have to be turned over to the State police for
burial. Reference must be made to the existing regulations on
secrecy. It must be pointed out especially that the graves of NN
prisoners must not be marked with the names of the deceased.
“The bodies must not be used for teaching or research purposes.
“8. Legacies of NN prisoners who have been executed or died from
other causes must be kept at the prison where the sentence was
served.”
It is not our purpose here to review all of the gruesome details of
carrying out the spirit of the Nacht und Nebel program which became the
daily routine of these defendants. As the Court will see, all of the
stipulations regarding the secrecy of the original decree and indeed
the addition of other unbelievably harsh and inhuman provisions were
systematically executed and improved upon by these men. If, to take one
example, the Wehrmacht erroneously arrested in the occupied countries
individuals who were patently innocent of any resistance to the Nazis,
these victims, in order to preserve the secrecy of the program, had to
be treated in exactly the same way as other individuals who managed to
escape with a prison sentence. Never did the families and friends of
the convicted or innocent know their fate. In the alleged trials before
the Special Courts none of the accused was, at any time, ever able to
introduce evidence from his own country as to his innocence and, in no
case, were the accused permitted to choose legal counsel other than
that assigned to them by the court.
Again the defendants flagrantly violated rights secured by the Hague
Convention of citizens of countries occupied by the German armed
forces--the right of family honor, the lives of persons, and the right
to be judged under their own laws.
c. Illegal Transfer of Prison Inmates to Concentration Camps
MR. WOOLEYHAN: A Ministry of Justice policy of extermination
through calculated denial of all judicial and penal process, in close
collaboration with the Gestapo and SS, characterizes the second
substantive group of crimes previously mentioned. By 1939, inspections
of Reich penitentiaries operated by the Ministry of Justice disclosed
that large numbers of political prisoners in security detention were
engaged in paid labor on projects incompatible with the rearmament
effort which then was at a climax. At Hitler’s order these prison
inmates were transferred to concentration camps where their work
could be both unpaid and of more use to munition requirements. Thus
was initiated a program which was to eventually erase any practical
difference between the fates of those victims who were put through the
shams of criminal court procedure, and those who were thrown by the
police into concentration camps without the formality of a hearing.
Apparently noting that transfers from Reich prisons to concentration
camps aroused no immediate public clamor or official opposition, judges
saw therein an outlet for increasingly burdensome numbers of criminal
cases, particularly political cases, as the defendant Engert has stated
(_NG-471, Pros. Ex. 276_):
“In 1940 or 1941 I wrote to Himmler suggesting that he take me
into the Gestapo. My idea was to get in closer touch with the
Gestapo in order to get an insight into the activities of the
Gestapo, and then to reach a better relationship between the
Gestapo and the People’s Court. * * * I also wanted to prevent
the possibility of insignificant cases being brought up in the
People’s Court, which could be better handed over to the Gestapo
for a short term internment in a concentration camp.”
About the time that Engert, then vice president of the People’s Court,
made this overture to Himmler, he began to complain officially that it
was incompatible with the respect, dignity, and tasks of the People’s
Court to try minor political cases. He opined that such cases could be
settled more quickly and effectively by transferring the culprit to a
concentration camp. Thierack, then president of the People’s Court, in
heartily endorsing Engert’s attitude, wrote to the Minister of Justice
in 1940 in part as follows:
“However right it is to exterminate harshly and uproot all the
seeds of insurrection, as for example we see them in Bohemia
and Moravia, _it is wrong for every follower_, even the
smallest, _to be given the honor of appearing_ for trial
and being judged for high treason _before the People’s Court,
or_ failing that, _before an appellate court_. In order
to deal with these small cases and even with the smallest,
the culprits should surely be shown that German sovereignty
will not put up with their behavior and will take action
accordingly. That can be done in a different way and I think
in a more advantageous one, than through the tedious and also
very expensive and ponderous channels of court procedure. I have
therefore no objection whatsoever, if all the small hangers-on
who are somehow connected with the high treason plans which have
been woven and abetted and plotted by others are brought to
their senses by being transferred to a concentration camp for
some time.”
These opinions and desires of Engert and Thierack found eager and
sympathetic audience with the Gestapo and SS, resulting in working
agreements between these agencies and the Ministry of Justice whereby
such illegal transfers could be accomplished outside the law. As the
International Military Tribunal in its judgment has found--
“An agreement made with the Ministry of Justice on 18 September
1942 provided that antisocial elements who had finished prison
sentences were to be delivered to the SS to be worked to
death.”[52]
This agreement, it will be noted, expanded the initial ideas of Engert
and Thierack far beyond any more hastening of minor political court
cases or exploitation of prison labor. The agreement introduced the
ideas of exterminating the so-called “asocials,” i.e., persons who for
either racial, political, or personality reasons were deemed unfit
to live. Within a month after this agreement had been worked out and
put into practice, it was expanded further to include not only those
“asocial” elements who had finished their prison sentences, but also
all Jews, gypsies, Russians, and Ukrainians who were detained under
arrest or imprisonment in any Reich penitentiary or work house, as well
as all Poles who were sentenced to more than 3 years.
Now, since the intentional design was to literally work these people to
death once they were transferred to concentration camps, this expanded
illegal agreement actually rendered any court sentence for any crime
tantamount to a death sentence.
In some cases the death awaiting these unfortunates was not long
in coming. For example, a situation report in 1942 from the
Attorney General of the Court of Appeals in Berlin to the defendant
Schlegelberger, while the latter was Acting Minister of Justice,
revealed the following episode:
“In this connection I think I ought to point out that only
recently perpetrators have been repeatedly handed over to the
Gestapo. Also, there was no sufficient cause therefore, to be
found in my opinion, in the conduct of the justice authorities.
I am referring to criminal procedures against Skibbe and others
* * *.”
Then follows the citation of the case in the German files:
“ * * * in which 4 defendants--26, 22, 20, and 18 years of age,
respectively--accused of committing 23, 19, 15, and 12 completed
or attempted robberies, respectively, by taking advantage of
air raid protection measures, were sentenced by the Special
Court of Berlin to 7, 6, and 5½ years of penal servitude and
loss of civil rights for 10 years’ each. Although 3 of the
perpetrators had not been convicted previously and the fourth
one only of 2 comparatively minor crimes, in addition to all
of them still being comparatively young and, at least in my
opinion, the pronounced penalties being not inadequate, these
perpetrators were handed over to the Gestapo. They were shot, as
could be seen from the newspaper reports ‘because they offered
resistance.’ May I remark that it is hardly unknown to the
public any longer that these shootings ‘because of resistance
offered’ are actually caused by other considerations.”
Still operating completely beyond any existing law, decree or
regulation, this same cabal of justice officials, SS and Gestapo
extended this policy of extermination through the Occupied Eastern
Territories. As the SS and SD offices throughout those eastern
countries were instructed in November 1942--
“The Reich Leader SS has come to an agreement with the Reich
Minister of Justice Thierack that the courts will forego the
carrying out of regular criminal procedures against Poles
and members of the eastern peoples. These people of foreign
extraction henceforth shall be turned over to the police. Jews
and gypsies are to be treated likewise. This agreement was
approved by the Fuehrer.”
These instructions to the SS and SD in the East continue:
“Those considerations which may be right for the punishment
of an offense committed by a German are wrong with regard
to the punishment of an offense committed by a person of
foreign extraction. The personal motives of the offender are
to be disregarded completely. Important only is that this
offense endangers the order of the German community, and that,
therefore, measures must be taken to prevent further dangers.
In other words, the offense committed by a person of foreign
extraction is not to be judged from the point of view of legal
retribution by way of justice, but from the point of view of
preventing danger through police action. From this follows that
the criminal procedure against persons of foreign extraction
must be transferred from the courts to the police.”
With the Jews, Poles, gypsies, Ukrainians and other so-called “asocial”
persons throughout the occupied east relegated to a carefully prepared
death, this same unholy alliance returned its attention to the Reich
and the Protectorate of Bohemia and Moravia. There, by the infamous
decree of 1 July 1943,[53] signed among others by Thierack, all of
the foregoing perversions of judicial and penal process were tardily
“legalized” by officially denying to all Jews any recourse to the
criminal courts and committed any Jews accused of an undefined
“criminal action” to the police.
With grim humor the following article of that statute ordered the
confiscation by the Reich of a Jew’s property after his death.
This decree completed the absolute disfranchisement and expropriation
of property of Jews in the Third Reich and Bohemia and Moravia who had
not already, by that time, been deported or slain.
Prison inmates not transferred to concentration camps, pursuant to
the foregoing program, were hardly better off in Reich prisons under
the hospitality of the Minister of Justice. The defendant Joel had a
working agreement with a deputy of Himmler’s whereby he turned over to
the SS, for shooting, those defendants whose sentences by the courts
were deemed insufficient by Hitler who followed published decisions in
the newspapers. A number of charts tabulating the shootings of such
defendants, many of whom had received only minor sentences, attest to
Joel’s zealous activity on this score. Schlegelberger, too, studiously
concocted what was deemed a “legal basis” for these shootings of prison
inmates serving minor sentences.
d. Judicial Murders in Violation of International Law
Victims of the People’s Court, Special Courts, and civil courts
martial were judicially murdered by certain of the defendants using a
variety of legalistic artifices, all of which had the obvious common
denominator of a zealous desire to exterminate even trifling activity
not even deemed misdemeanors by the community of civilized nations.
One such artifice frequently employed was a subjective, conclusive
assumption by the judges and prosecutors of proof of the very issues
tried. For example, after the Nazi importation of forced labor from the
occupied East had collected large numbers of foreign workers within the
Reich at various war jobs against their will, escape efforts by such
workers across Reich frontiers to their homeland or elsewhere became
frequent. These escapees, when apprehended by border officials, were
normally handed over to the People’s Court for trial for preparation
of high treason, which bore a mandatory sentence of death. The
applicable section of the German criminal code defined high treason in
this context “as an attempt to incorporate by violence or by threat
of violence the German territory in its entirety or in part into a
foreign State or to detach from the Reich territory belonging to the
Reich.” The escapees were indicted, inconceivable as it may be, for the
violation of this provision.
In grasping for some legal straw upon which to base a conviction on
these grounds, the courts created a whole-cloth assumption that such
escapees were heading through Switzerland, or wherever they might have
been picked up, in an effort to join some military legion hostile to
the Reich. The Reich prosecutors were drawn into this scheme. Walter
Brem, a former assistant to the chief Reich prosecutor at the People’s
Court, described the situation thus (_NG-316, Pros. Ex. 79_):
“The majority of these cases concerned foreign laborers who
wanted to look for a job in Switzerland because of inadequate
salaries and insufficient food rations in the Reich. The
prosecution, however, claimed that foreign legions were being
established in Switzerland and that every foreigner wanting to
cross the border illegally did so in order to join up with such
legions. I was ordered by the prosecutor of the People’s Court
to connect the defendants somehow with the foreign legions.
I have never received a positive answer about those alleged
organizations, and the whole concept was known to the foreigners
only as a rumor. Individual proof of any acts of high treason
could not be established; however, the prosecution based its
claims on the assumption that such foreign laborers would behave
in a hostile manner against Germany once given the opportunity.”
This contention was acceptable to judges of the People’s Court. On 12
August 1942, three Polish defendants, Mazur, Kubisz, and Nowakowski,
pursuant to an indictment signed by the defendant Lautz, were sentenced
to death by the People’s Court for preparation of high treason and
attempting to separate a portion of the Reich by force. They had left
their factory in Thuringia and proceeded across the Swiss border, where
they were apprehended by Swiss officials and returned to the Reich.
As reasons for their escape the defendants cited the hard working
conditions to which they had been exposed. Kubisz testified that
the meals consisted only of soup. Mazur stated that his work in the
quarry was so hard that he feared he would not survive the winter. The
defendants stated they had hoped to find better working conditions in
Switzerland. They denied having had any knowledge of the existence of
a Polish Legion in Switzerland. The prosecution offered no evidence to
impeach these statements in any way.
Nevertheless, the People’s Court found that the defendants’ statements
were mere excuses, that the existence of a Polish Legion in Switzerland
was “generally known,” and that the defendants intended to join this
legion. This judicial assumption was buttressed by a physician’s
certificate which showed all three defendants to be in excellent health
and qualified for active service. Therefore, the court “was convinced”
that the defendants had discussed the fate of Poland and her people
with their camp mates in the factory barracks and had decided to join
the Polish Legion in Switzerland. The court said that it knew of a
pact with Russia that the Polish government in exile had formed, and
that this fact had been broadcast by the British radio. The court
knew, furthermore, that in the past Polish workers had repeatedly fled
to Switzerland where they were recruited for the Polish Legion, and I
quote a portion of the court’s decision:
“These circumstances force the court to the conclusion that the
defendants intended to join the Polish Legion in Switzerland.”
With regard to verbal remarks deemed seditious or deleterious to the
“German people’s defensive strength,” People’s Courts sentences were
not only outrageously unjustified, but reached the climax of judicial
caprice. The Austrian taxicab driver, Rudolf Kozian, pursuant to an
indictment signed by Lautz, was sentenced to death on 26 June 1944
for making certain uncomplimentary remarks concerning Hitler and the
progress of the war. In the course of conversation while driving a
female customer, who later denounced him to the Gestapo, he made
remarks typified by the following:
“To us Viennese it’s all the same from whom we receive our bread
whether his name is Stalin, Churchill, or Hitler. What matters
is that we can live. When I quarrel with someone and see that
I can no longer carry on, then I stop and do not continue the
fight until everything is destroyed. The Fuehrer in his speech
said that he would destroy us all. The Fuehrer has said that
this war will be fought until one side will be annihilated.
Every child knows that we are that side, unless the Fuehrer will
come to his senses before then and offers peace to the enemy.”
The court found the defendant guilty of having attempted to undermine
the German morale to such an extent that he was deemed to come within
the special Emergency Decree authorizing death for impairing German
defensive strength.
Contrast the foregoing case of the Austrian taxi driver, resident of
a country occupied and annexed by illegal aggressive acts, with that
of Mrs. von Brincken, a German Nazi, who was indicted in August 1944
for having made similar statements in a conversation with friends at
the seashore. When the man who had rented her a beach chair became
angry about the careless way in which his chair was treated, Mrs. von
Brincken was alleged to have said: “Well, don’t worry, the Russian
commissars will be sitting in them next year.” She was also vocally
indignant to her neighbors because her 17-year-old daughter had just
been drafted for labor assignment in the country, and said: “It would
do the farmers no good; they would only get more work and more worry
since the girl could not do anything but eat.” Due to the intercession
of both her husband, a colonel, and a notorious SS general who was a
friend of the family, she was released with an admonition.
Such judicial discrimination with death as the forfeit, is explained
by the defendant Petersen, a lay judge at the People’s Court from 1941
until the end of the war (_NG-396, Pros. Ex. 176_).
“The sentences of the People’s Court can be understood only if
one keeps in mind the intent underlying the penalties. This
was not primarily that of imposing punishment in accordance
with normal ‘bourgeois’ conceptions of crime and punishment,
but rather of annihilating an opposition which could become
detrimental to the German aims.”
DR. ASCHENAUER (defense counsel for defendant Petersen): By
my motion of 21 February 1947 I objected to the submission of the
affidavit of the defendant Petersen. On 27 February 1947, I specified
the motion. It says: “The defense is not permitted to introduce the
affidavit and the interrogations under oath of the defendant Petersen
into the proceedings.” On 21 February 1947 I gave the reasons for the
motion which are as follows: From 12 June until the end of 1946, the
defendant Petersen was in the Langwasser camp. As a patient, he was
moved to the Regensburg camp where his medical treatment was continued.
Already at Langwasser, Petersen was pronounced unfit for transport.
In spite of medical treatment, he was moved to Nuernberg. As he
collapsed in Regensburg, medical treatment for circulation disturbance
was continued at the court prison here; the circulation disturbance
improved only at Christmas 1946. Accommodation in a cell in which half
a window was missing, was naturally very detrimental to the state of
health of the 61-year-old defendant Petersen. Therefore--
PRESIDING JUDGE MARSHALL: Counsel for the defendant is advised
that the statement of counsel is not evidence in this case. It is
merely a statement of what later will be introduced in evidence. If
this statement is introduced in evidence, you can make your objection
and it will then be ruled upon. For the moment, the prosecution will
continue its statement.
DR. ASCHENAUER: I should only like to point out that this
is the same affidavit which is being presented here and that this
affidavit is due to the psychological condition of the witness.
PRESIDING JUDGE MARSHALL: I repeat. This is not evidence. This
is merely a statement of what will later be introduced in evidence. At
that time, if you have an objection, it will be considered. At this
time, you may not interrupt the statement of the prosecution.
DR. ASCHENAUER: I will raise my objection at a later time.
MR. WOOLEYHAN: To get the proper context, I will begin at the
beginning of the excerpt included in the opening statement (_NG-396,
Pros. Ex. 176_).
“The sentences of the People’s Court can be understood only if
one keeps in mind the intent underlying the penalties. This
was not primarily that of imposing punishment in accordance
with normal ‘bourgeois’ conceptions of crime and punishment,
but rather of annihilating an opposition which could become
detrimental to the German aims. This was our duty. Hence, after
a defendant had been brought before the People’s Court because
of some act or utterance, his actual deed was of no particular
importance in the determination of the punishment within the
framework of the law. The important thing was whether the man
had to be exterminated from the community of the people as a
‘public enemy’ because of his personal attitudes and his social
or antisocial tendencies.”
The further artifice of “punishment by analogy,” previously mentioned
generally, was as tyrannical in practice as it seems in theory.
Revolting examples of this procedure in action are legion. A
particularly notorious case that turned on this ground was that of
Lehmann Katzenberger, 68-year-old former chairman of the Nuernberg
Jewish congregation. Katzenberger was indicted before the Nuernberg
district court for so-called “racial pollution,” having been accused
of sexual relations with one Irene Seiler, an Aryan woman. The police
tried desperately without success to secure the necessary conclusive
evidence, but Katzenberger and Seiler, both well-known figures of some
prestige in the community, denied under oath any illicit relationship.
There were no witnesses to or other evidence of the accused act. Since
an acquittal of the Jew was unthinkable, particularly in Nuernberg
which was the hearthstone of the Jew-baiter Streicher, and whose
newspaper “Der Stuermer” widely publicized the story, Katzenberger was
remanded to the Nuernberg Special Court, tried as a “public enemy,”
sentenced to death, and executed. Seiler was indicted for perjury and
was joined with Katzenberger as codefendant; her sentence of two years’
imprisonment was later suspended.
As Hans Groben, Nuernberg district court judge for preliminary
investigations, describes the case (_NG-554, Pros. Ex. 153_)--
“As I had no reason to doubt the truth of Seiler’s sworn
statement it was clear to me that I could not keep Katzenberger
in custody any longer. Therefore I informed his counsel, Dr.
Herz, about the result of this interrogation and gave him to
understand that this was the right time to act against the
warrant of arrest. Dr. Herz naturally understood this hint,
and at once he filed a complaint against the warrant of
arrest. According to the regulation (section 33 of the Code
of Criminal Procedure) I put the complaint before the public
prosecution, adding in my report that I had the intention to
comply with this complaint (section 306, paragraph 2, Code of
Criminal procedure), i.e., to set Katzenberger free. I thus
clearly expressed with this additional remark that I believed
Katzenberger to be innocent * * *. As was later explained to
me, the indictment already filed with the penal chamber of the
district court was thereupon withdrawn and replaced by one filed
with the Special Court.
* * * * * * *
“I was shocked when I heard the result of the trial. The fact
that Rothaug combined the trial against Seiler, a case of
perjury, with the trial against Katzenberger, shows clearly that
he took over the case of Katzenberger with definite prejudice
and that he was determined to exclude Seiler as a witness for
the defendant. For, according to normal procedure, Seiler
should have been a _witness_ in Katzenberger’s trial
and should have testified for him stating that the charges
against Katzenberger were not true. This normally should have
led to the acquittal of Katzenberger, as otherwise there was
nothing decisive against him. Rothaug’s verdict, in my opinion,
was based solely on blind hatred of Jews. While there were
no reasons for Katzenberger’s condemnation on the ground of
so-called race defilement, there was still less reason to apply
section 4 of the ‘Decree against Public Enemies,’ because if it
was altogether impossible to ascertain when or if Katzenberger
and Seiler had the alleged sexual intercourse, it was still less
possible to explain that this had happened ‘in exploitation of
war conditions.’ To arrive at Katzenberger’s condemnation on the
grounds of so-called race defilement in connection with section
4 of the ‘Decree against Public Enemies,’ it was necessary to
violate all the facts of the case. It has always depressed me
that such a verdict, which cannot be designated as anything but
judicial murder, was pronounced by Rothaug.”
One further sampling of the prosecution’s evidence will serve to reveal
how the protection against double jeopardy, keystone of criminal
procedure the world over, was abrogated and used for the murder of
civilians of occupied countries.
The Nuernberg Special Court, under the leadership of the defendants
Rothaug and Oeschey, used this fiendish practice in the case of Jan
Lopata, a Polish youth brought during the war to work on a German farm.
The accused was sentenced in 1940 to 2 years’ imprisonment by the
Neumarkt local court for indecent assault on his employer’s wife. A
plea of nullity against the decision was filed by the prosecution on
the grounds that the sentence was too lenient and the case was reviewed
by the Reich Supreme Court with the result that it was referred to the
Nuernberg Special Court for retrial. In the court’s verdict sentencing
Lopata to death, the presiding judge (the defendant Rothaug) observed
(_NG-337, Pros. Ex. 186_)--
“The total inferiority of the accused lies in his character and
is obviously based on the fact that he belongs to the Polish
subhuman race.”[54]
In reliance upon the decrees “legalizing” nullification and retrial of
criminal cases at the prosecution’s behest, defendants were deprived of
any assurance that a sentence of less than death was their final fate.
Ministry of Justice officials, working through the prosecution, joined
in this infliction of double jeopardy. For example, in a case involving
a non-German, the defendant Klemm wrote to the president and attorney
general of the Stuttgart District Court of Appeals on 5 July 1944 and
directed the following (_NG-676, Pros. Ex. 178_):
“For some time now, the jurisdiction of the penal senate of
the district court of appeals in Stuttgart has given me cause
for grave thoughts with regard to matters of defeatism. In the
majority of cases, the sentences are considered too mild * * *
and are in an incompatible disproportion to the sentences which
are in similar cases passed by the People’s Court and by other
district courts of appeal. I refer especially to the following
sentences which lately attracted my attention:
“1. Criminal case against Friedrich Linder, sentence of the
Second Penal Senate of 7 January 1944 (President of the Senate,
Dr. Kiefer) * * *. You made a report under date 28 April 1944
on this case regarding the sentence. In view of the danger and
of the frequency of the statements made by the defendant, I
must maintain the interpretation already expressed in my decree
of 15 March 1944, IV Secret I 5045B/44 that the defendant, a
foreigner, deserved a serious sentence of penal servitude. I
have therefore directed the files to the chief Reich prosecutor
at the People’s Court to examine the question whether the
extraordinary appeal should not be applied against the sentence
* * *.”[55]
It is technically true that an extraordinary appeal or plea of nullity
could, on the face of the enabling decrees, operate to a defendant’s
benefit as well as to his detriment; but this possibility was illusory
in practice. Dr. Josef Grueb, former judge of the Nuernberg District
Court of Appeals, says (_NG-672, Pros. Ex. 179_):
“It was obvious that the Ministry of Justice only admitted a
petition for nullity when it was unfavorable to the defendant.
Cases in which the Ministry ordered a nullity plea unfavorable
to the defendant were, at any rate, much more numerous than
cases where the petition for nullity was demanded for the
benefit of the defendant on the Ministry’s own initiative.
* * * It was mainly a means employed by the State to cancel
sentences which seemed inadequate in the light of the political
conceptions of those times.”
A terrifying glimpse of the actual extent to which double jeopardy was
exploited during the Third Reich’s last years, is furnished by the
defendant Nebelung (_NG-333, Pros. Ex. 177_).
“If the Chief Reich Prosecutor, Dr. Lautz, was not satisfied
with the sentence, he could file an extraordinary appeal against
it. This was done, in my opinion, mainly as a result of orders
by Reich Minister Thierack. After 1943, extraordinary appeals
became frequent. All cases in which an extraordinary appeal had
been filed were tried again before the special senate of the
People’s Court. This special senate concerned itself exclusively
with extraordinary appeals. Of all senates of the People’s
Court, this special senate pronounced the largest percentage of
death sentences. According to statistics which I saw myself, 70
percent of all sentences passed by the special senate during
1944 were, as I recall, death sentences.”
By the foregoing samples from actual case records and comments thereon
by German jurists involved, the prosecution has sought to typify rather
than specify the war crimes and crimes against humanity committed by
the defendants. Detailed accounts are unnecessary at the moment to
exemplify the judicial murders and legalistic perversions for which
these defendants have been indicted; that will be fully developed by
the evidence.
e. Evidentiary Considerations
MR. LAFOLLETTE: We believe it will expedite the trial of this
case and be of assistance to the Court and evidence a proper attitude
of fairness toward the attorneys for these defendants if we discuss now
some of the theories of evidence and of the relevancy and materiality
of evidence under which we shall present the proof in this case.
Law No. 10, which is the inter-power act from which this Court springs,
contains some matter relevant to the issue, while Ordinance No. 7,
of necessity, treats the matter very fully. Between them they deal
adequately with the matter of the competency of proof, intelligently
relaxing the rules of the necessities of presenting proof in a country
which has not only been physically destroyed, but which has had its
government disintegrate and also suffered the demoralization which
follows the defeat of a vicious ideology which has permeated the
thinking of far too many of its people.
But relevancy and materiality--the relationship of primary facts to the
ultimate fact--involves a cerebral process, the method of finding the
existence of an ultimate fact by logical processes from objective proof.
These latter standards lie within the consciousness and the conscience
of man. Thus, they are not affected by the external considerations
which justify the relaxation of the rules regulating the competency of
proof. They should not have been and they were not relaxed. We endorse
the decision to retain them and welcome the opportunity to work under
them.
Article II, paragraphs 4(_a_) and (_b_) of Law No. 10, are
the same in substance, although differing slightly in the use of
language to express the substance as articles 7 and 8 of the Charter,
respectively.
These paragraphs of article II of Law No. 10 read as follows:
“4. (_a_) The official position of any person, whether as
Head of State or as the responsible official in a Government
Department, does not free him from responsibility for a crime or
entitle him to mitigation of punishment.
“(_b_) The fact that any person acted pursuant to the
order of his Government or of a superior does not free him from
responsibility for a crime, but may be considered in mitigation.”
Paragraph 4 (_a_) is a sound rule and applies to most, if not
all, of these defendants. Paragraph 4 (_b_) is likewise sound. We
point out, however, that these defendants are lawyers who are charged
fundamentally with perverting or converting a system of justice into
an instrument for committing crimes under international law. Since
this paragraph affords them the right to offer evidence in mitigation
and to plead for mitigation from that evidence, the prosecution is
entitled to answer that plea by two arguments. First, that a lawyer has
special knowledge of the perverting effect upon the dispensation of
justice not only of his own acts, but of the acts of others of which
he has knowledge--knowledge as an ultimate fact. Second, that a lawyer
entrusted by his very calling with a sacred duty must of necessity
offer strong proof indeed in mitigation of the prostitution of that
duty.
We shall introduce proof on this issue from which knowledge, as an
ultimate fact will arise, and also proof from which the plea of
mitigation will be shown to be fanciful and hypocritical.
Again upon the subject of relevancy and materiality--probative
value--we shall offer evidence of other acts of these defendants and
also acts of persons other than these defendants, knowledge of which as
an ultimate fact can be inferred to the defendants. These acts shall
include those which constitute evidence of other crimes committed both
by these defendants and by others. We are convinced that this evidence
is relevant and material, and therefore admissible under accepted rules
of evidence supported by Wigmore, an acknowledged authority.
Certainly, a brief exposition of our position will expedite the trial
by enabling the Court to rule expeditiously, but at the same time
judiciously, and it is also our hope that by furnishing defense counsel
with an understanding of the legality of the rules under which this
evidence will be offered, they will not find it necessary to resort too
frequently to empty objections.
We can afford to be candid with Court and counsel. It is only the lazy,
the uninformed, or inherently dishonest and therefore unethical lawyer
who seeks recourse to silence or obtusion. We refuse to follow a course
of conduct from which either of the foregoing can be charged to the
prosecution of cases before this Tribunal and its sister Tribunals.
Evidence of acts, including other crimes not only of the defendants but
of others, is permissible and most often offered to show knowledge,
intent or design. They are also relevant upon the issue of motive.
Because of the nature of the crimes charged in this indictment, each of
the foregoing, knowledge, intent, or design and motive, is an essential
ultimate element or ingredient of those crimes. Therefore, the rules
which authorize the introduction of such proof are of concern to this
Court.
Before treating the subject affirmatively, we shall prepare the way by
eliminating the supposed objection of unfair surprise. We offer the
following quote:
“Of the other objections (other than undue prejudice) from
the point of view of that auxiliary policy which creates the
character rule, the objection of unfair surprise is the only one
that could be supposed to be here applicable. But it has never
been treated by the courts as of consequence. * * * Evidence
tending to show, not the defendant’s entire career, but his
specific knowledge, motive, design, and the other immediate
matters leading up to and succeeding the crime, is of a class
always to be anticipated and is in such given instance rarely
a surprise; moreover, the kernel of the objection of unfair
surprise, namely, the impossibility of exposing fabricated
evidence, is wanting where the evidence deals with matters
so closely connected with a crime as design, motive, and the
like.”[56]
The above quote referred to the further objection of undue prejudice.
That objection does not arise here. This is a trial by the court--by
judges. It is a trial by judges who by training and character rely
only upon objective standards in determining guilt or innocence. The
rule was never considered in America as a necessary protection to a
defendant in trials by court.
In fact, the very contrast between the system and standards of
judicial conduct by which these defendants are being tried and the
subjective personality yard sticks which they, particularly the
judicial defendants, will be proved to have acted under and used, it
is to be hoped, will have some effect in serving the declared purpose
of Potsdam, “to prepare for the eventual reconstruction of a German
political life on a democratic basis * * *.”
In treating the subject under discussion, we must refrain, because of
time limitation, from presenting Wigmore’s excellent philosophical
discussion of the basic principles which govern the proof of knowledge,
intent, and design. Therefore we limit ourselves, from necessity, to an
exposition of those statements which are applicable to the crime which
most, if not all, of these defendants have committed--murder.
We shall offer the type of evidence under discussion, first under the
knowledge principle:
“The knowledge principle has practically little application
here, though it would be available to show a knowledge of the
nature and injurious effect of a lethal weapon.”[57]
We point out that in this case “knowledge of the nature and injurious
effect of a lethal weapon” is of first importance. The defendants had
full knowledge of the character of this lethal weapon--a judicial
system deliberately fashioned into a headman’s axe. In fact, most of
them directly and actively fashioned it. Consequently, under each
of the categories of the substantive law of murder, which we have
heretofore expounded, and particularly under the second, proof of prior
acts, including crimes of those defendants and of others of which they
had knowledge, are clearly relevant.
The same type of evidence shall be offered under the following rule
relating to the intent principle:
“The intent principle receives constant application; for the
intent to kill is in homicide practically always in issue, and
is to be proved by the prosecution, and the recurrence of other
acts of the sort tends to negative inadvertence, defensive
purpose, or any other form of innocent intent. For this purpose,
therefore, the evidence is receivable irrespective of whether
the act charged is itself conceded or not * * *.”[58]
Also the rule of anonymous intent authorizes the introduction of proof
of such other crimes and of the crimes of others.
“The principle of anonymous intent finds occasional application,
particularly in poisoning cases. Other instances of death
by poison under somewhat similar circumstances serve to
negative the supposition of inadvertent taking or of mistaken
administration, even though the person responsible for the
other poisonings is not identified; and thus, a criminal intent
having been shown for the act charged, by whomsoever done, the
defendant may be then shown to be its doer.”[59]
This Court shall be called upon to determine whether a so-called
judicial execution was a true judicial decision or poison handed the
defendant in a disguised chalice having the exterior appearance of
judicial purity. When we produce innumerable cases of such acts, can
a defendant be heard to say he did not know his monstrous chalice was
lethal and intended it so to be?
Also the principle of design or system is applicable for identical
reasons.
“The principle of design or system finds here frequent
application. It supposes that a design or plan in the defendant
is to be shown, as making it probable that the defendant carried
out the design or plan and committed the act; and it receives
former similar acts so far as through common features they
naturally indicate the existence of such a plan, design, or
system, of which they are the partial fulfillment, or means.
This principle is fully recognized in the precedents * * *.”[60]
And finally prior acts of violence, including crimes, are evidence of
motive as well as of design:
“(3) Prior acts of violence by the defendant against the same
persons, besides evidencing intent, may also evidence emotion
or motive, i.e., a hostility showing him likely to do further
violence; * * *.
“(4) Threats of violence are in themselves expressions of a
design to injure, and are accordingly dealt with elsewhere * *
*.”[61]
Certainly, when we shall offer so many cases of death of Poles and
Jews, no one of these defendants will have the temerity to say we
cannot show proof of their own prior utterances, as well as those of
others of which they had knowledge, as a clearly inferred ultimate
fact, demanding death to Poles and Jews, and also that haste and more
haste must be made to turn the Nazi judicial system into a headman’s
axe, for the purpose of showing their motive when they killed Poles and
Jews with their so-called “judicial” system and processes.
It would be a strange law, indeed, which would say that if a man killed
the Pole or one Jew, his prior threats to and assaults upon that Pole
or Jew were relevant evidence of the motive with which he acted, but
would deny the same proof, when the same man, or in this case men,
killed millions of Poles and Jews.
Of course, the law is neither so blind nor so callous.
The accepted rules of proof in an objective system of law justify
every offer of proof of prior statements, acts, and crimes of these
defendants, and of those others of which they had knowledge, as an
ultimate fact, which we should make in this case.
We need not, nor shall we attempt to, evade or circumvent those
salutary rules.
These defendants can and should be convicted, but only under law.
Because we believe that, we have not been afraid to predeclare our
understanding both of the substantive law and the rules of evidence
under which just convictions shall be asked, and which we believe will
be rightfully rendered under the proof adduced.
Although the matter is not related to the theories under which evidence
will be offered by the prosecution, there is one other matter relating
to the evidence which the prosecution feels it is entitled to discuss
at the opening of this case.
During the introduction of the evidence, certain names of important
officials recur--Thierack, Freisler, Vollmer, Westphal, Crohne,
Laemmle, Haffner, and others. Since these men are not in the
defendants’ dock, the Court is entitled to know why. Thierack committed
suicide on 26 October 1946. Freisler was killed in an air raid which
demolished the People’s Court building in Berlin, early in 1945.
Vollmer forsook the Ministry of Justice for the Luftwaffe (air force)
during the last days of the battle for Berlin in 1945, and was reported
to have died in action. Westphal committed suicide in the Nuernberg
prison following service of the present indictment upon him. Crohne,
Laemmle, and Haffner cannot be located, despite all efforts.
THE GERMAN LEGAL PROFESSION UNDER THE THIRD REICH
We have sketched the steps by which the judicial organization of
Germany was turned into a mere agent of the criminal policies of the
Third Reich, and have outlined some of the crimes which the defendants
committed by means of the perverted judicial machinery. Before taking
up the fourth and final count of the indictment, which rests upon
a somewhat different footing than the first three counts, it is
appropriate to examine very briefly the German legal profession and its
degradation under the Third Reich. This brief survey, we think, will
help to explain why these atrocities came to pass.
a. Before 1933
During the pre-Hitler decades, the professional life of German jurists
flourished. Independent societies were formed which published law
reviews of high caliber and participated in international conferences
of jurists and in international legal institutions, such as the
International Arbitration Courts.
Originally, the judges of the various German States had separate
professional organizations, but in 1908 these were combined into
the Association of German Judges (Deutscher Richterbund). This
organization sponsored lectures on new legal problems, on comparative
law, on modernizing penal law, and similar subjects. The association
edited the “German Judges’ Times” (Deutsche Richterzeitung), which
published court decisions and articles by learned jurists. Another
organization of German judges was the Association of Republican
Judges (Republikanischer Richterbund), founded in 1926. Its members
were primarily interested in the reformation of the German court
system and in bringing German legal institutions into line with the
democratic principles of the new Weimar constitution. They published
the periodical “German Justice” (Deutsche Justiz).
Most practicing German attorneys at law belonged to the Association
of German Attorneys at law (Deutscher Anwaltsverein), the largest
professional organization of jurists. This association, founded
in 1871, comprised about 15,000 members in 1933. It published the
“Juridical Weekly” (Juristische Wochenschrift), which had thousands of
subscribers inside Germany and abroad.
Before the Nazis came to power, all organizations of jurists consisted
of members of all political parties and creeds. Their officers were
eminent scholars or jurists, and many of them had a high international
reputation. Their yearly meetings acted according to democratic
principles without interference from the executive branch of the
government.
Legal education and training in Germany maintained high standards.
After studying law for 3 or 4 years at a law school of one of the
State universities, the candidate served a law apprenticeship, lasting
another 3 or 4 years, at various courts and law firms. Only then was
he admitted to the Great State Examination, known as the Assessor
Examination, which might be compared with our bar examination. The
successful completion of this examination was the legal prerequisite
for any appointment as judge, public prosecutor, or higher civil
servant, or for admittance to the bar. The men and women who had passed
this examination were highly respected by the German populace.
b. The Impact of Nazism
In the years immediately preceding the establishment of the Third
Reich, the National Socialist Party started a nationwide campaign
directed against the legal profession. The Nazi leadership realized
that they could not gain absolute dictatorship by the seizure of the
government alone, but that they must also completely subjugate German
legal life. As an affiliate of the Nazi Party, a National Socialist
German Jurists’ League (Bund Nationalsozialistischer Deutschen
Juristen) known as the BNSDJ, was formed in 1928 by the late Hans
Frank. In 1931, the members of this organization, then about 600 in
number, or less than 1 percent of all German jurists, were instructed
to report on the political attitude and behavior of judges and lawyers.
The general attitude of the Nazi Party toward independent judges was
reflected in the statement--
“One day, we will forget the independence of the judges which
has no significance in itself.”[62]
There were many other occasions when Hitler and his henchmen expressed
their distaste for law and the legal profession.
Immediately after the Nazis came to power, they started to pervert
German legal life and to develop it as a tool of the totalitarian
machine. This was accomplished in part by measures which have already
been described, such as the dismissal of judges, prosecutors, and
Ministry officials considered politically unreliable, and by depriving
judges of the guaranties of independence and immunity from removal from
office.
But these measures were not confined to the governmental judicial
organization. It extended into all branches of the legal profession.
The first step was the subjugation, and later the complete elimination,
of the old professional associations, such as the Deutscher
Richterbund, the Republikanischer Richterbund, and the Deutscher
Anwaltsverein. Their destruction was accomplished by the same sort of
maneuvers that effected the dissolution of the pre-Nazi medical and
other professional societies at about the same time.
In the early spring of 1933, the former officers were ousted under
duress, and new officers, all of them members of the Nazi Party,
were appointed according to the newly proclaimed leadership principle
(Fuehrer-prinzip). This procedure also became known under the term
“coordination” (Gleichschaltung). At the same time, the membership
of well-known anti-Nazi or Jewish jurists was canceled in all these
professional organizations. Many of them were threatened and forced to
emigrate.
Shortly afterward, in May 1933, the old organizations were completely
dissolved. All organizational and professional activity was centered in
the National Socialist German Jurists’ League, which became one of the
most important tools in the Nazi penal program.
Hans Frank reported to Hitler in May 1933 that all existing
professional organizations and associations of lawyers had joined the
BNSDJ.[63]
The cooperative entry of these organizations into the BNSDJ did not,
however, imply individual membership of its members in the BNSDJ.
This required an individual application. Actually by the end of 1934
there was hardly a lawyer left who had not joined the BNSDJ. Those
very few who had the courage to stay out laid themselves open as
opponents of the regime with the grave risks which this implied. One of
the conditions of membership in the BNSDJ was membership in the Nazi
Party, but non-Party members could be admitted as so-called “supporting
members” (Foerdernde Mitglieder).
The constitution of the BNSDJ dates from 4 May 1933. It declares as
its program the realization of the National Socialist program in the
legal field. According to Hitler’s order of 30 May 1933, the BNSDJ
was the sole representative of the German Law Front and the exclusive
professional organization of all lawyers. The seat of the BNSDJ was
Munich, its leader Hans Frank, and its executive secretary Dr. Wilhelm
Heuber. Regionally, it was divided into 26 regions (Gaue). Leader of
the Gaue “Hanseatic Cities” was the defendant Rothenberger. At the end
of 1934, the Nazi organization of jurists had approximately 80,000
individual members and its executive secretary could boast that it was
the biggest lawyers’ organization in the world. In 1936, the name was
changed to “Nationalsozialistischer Rechtswahrerbund” (NSRB). Through
the disciplinary boards of this organization, the legal chieftains of
the Nazis held the lawyers under close political surveillance.
c. Under the Third Reich
Within a short time after the advent of the Nazis, the editorship of
all legal journals was taken over by newly appointed Nazi editors,
such as Hans Frank and his accomplices of the BNSDJ. A number of the
scientific legal journals whose editors were known as anti-Nazis, such
as “Die Justiz,” were suppressed. The new editors perverted the legal
journals by turning them into mere propaganda instruments of the Nazi
government. In these journals, the jurists were informed that they were
to be nothing but the legal soldiers of the Fuehrer. The legal journals
were flooded with such material. The Deutsche Justiz, the mouthpiece
of the Ministry of Justice, frequently printed directives of which the
following by the late Under Secretary Freisler is typical:
“But we will march as an army corps of the Fuehrer, and as such,
no one shall outdo us in the willingness to self-sacrifice! We
are alone responsible to the Fuehrer and that is our wish.”[64]
While, on the one hand, the legal thinking of the older generation
of jurists was perverted, on the other hand the future Nazi
jurists received a thorough indoctrination at the law schools of
the universities where they were instructed by Nazi lawyers or by
opportunists who had sold their legal reputation for promotion within
the Nazi hierarchy. Respected professors, who were suspected of
so-called “Roman-Jewish individualistic” legal ideas were discharged,
and references to such ideas were eliminated from the textbooks. The
standard of legal education was considerably lowered. The students had
to spend a considerable part of the time which was once devoted to the
study of law, on compulsory labor and military service and exercises in
the student cadres of the SA Storm Troopers and the SS Elite Guards.
During the period of their law clerkship, Nazi indoctrination and
exercises in military formation were substituted for the once thorough
legal training. Eventually, no young lawyer was admitted to the bar
whom the examination board did not consider a reliable legal soldier
of the Nazi Fuehrer. In analyzing the new Nazi examination decree for
lawyers, Freisler stated:
“The experience of the candidate within the (Nazi) movement and
its evaluation (by the Nazi movement) is fundamental in any
evaluation of the candidate’s qualifications. If such experience
does not exist, he will be disqualified.”[65]
In the early stages of this prostitution of German legal education, the
Prussian Ministry of Justice took a leading part. The Prussian Minister
of Justice was a Nazi zealot named Hanns Kerrl, a budget clerk without
legal education who attained this high position under the Nazis, and
who became the Reich Minister for Churches after the Prussian Ministry
of Justice was absorbed by the Reich government. In April 1933 Kerrl
issued a decree concerning the selection of candidates for positions
as judges, public prosecutors, and attorneys in the State of Prussia,
which provided in part that--
“The applicant for appointment as a junior judge (assessor),
admission as attorney, or appointment as notary public
will in future have to prove in a special hearing that his
consciousness of being a member of the national community, his
social understanding, and his understanding of the entire race
development of the German people in the present and future
constitute the basis of his personality. * * * for this purpose
applicants will have to undergo a special post-examination which
has the aim to convey an impression of his being rooted in the
national community (Volksverbundenheit).
“The result of this post-examination will be evaluated in
my decision about the appointment or qualifications of the
candidate equally with the other statutory requirements.”[66]
Two months later, Kerrl issued another decree which required that
all candidates for the final State legal examination had to attend a
special “Community Camp” for 6 weeks before they would be admitted
to the final examination. This Prussian decree provided, in part, as
follows:
“The National Socialist State must know above all that the man
whom the State, as a sovereign, intends to entrust with the
execution of the most important tasks of judge or prosecutor,
must have character and be a typical German.
“One cannot get an idea of this from an examination as it has
been conducted up to now, * * *.
“I therefore decree that:
“1. In the course of the final legal State examination, each
candidate, during the period following the written and preceding
the oral examination, that is for about 6 weeks, is to live
together with other candidates under the direction of civil
servants of the Prussian Administration of Justice, appointed by
me * * *.”[67]
This preposterous institution for the perversion of young lawyers was
established, and given the name “Gemeinschaftslager Hanns Kerrl,” after
its creator. It was located at Jueterbog, near Berlin. An illustrated
pamphlet describing the activities in this lawyers’ madhouse will be
introduced in evidence. According to the basic statute of the camp,
the inmates were to become familiar with the leadership principle and
would “experience the ideas of the Fuehrer.” The commandant of the
camp was a lawyer named Spieler, who had become favorably known to the
Nazis through his activities as defense counsel in their behalf. He was
an old Party member and a colonel in the Storm Troopers (SA). He was
assisted in supervision of the young lawyers by a motley group of storm
troopers and army officers. The extracts from this pamphlet will bear
quotation:
“A further training and examination of the candidate is
accomplished through ideological indoctrination. The camp
directors are aware, of course, that national socialism
can neither be learned nor taught. National socialism must
completely determine an individual’s attitude; when this is
not the case, the individual can never become a real National
Socialist. There are many people, however, who in their social
relations or in their way of living have not become acquainted
with national socialism or were even opposed to it, yet in these
people there exists an unconscious National Socialist sentiment
which only needs stimulation to develop. The appropriate
method for this is the ideological indoctrination. The latter
is therefore particularly used in the camp, not only for this
purpose but also for training purposes, to strengthen and
develop the National Socialist ideology.
* * * * * * *
“The day of Horst Wessel’s death was also a remarkable day.
This day was commemorated in a particular manner. At 4 o’clock
a trumpeter blew reveille. At 4:07 all the camp inmates were
already assembled in the courtyard. A brief order, ‘column
right, forward march.’ Then the various platoons of the school
took different routes across the drilling field and marched on
into the country.”
After the dissolution of the Prussian Ministry of Justice in 1934, the
Gemeinschaftslager Hanns Kerrl was brought under the supervision of the
Reich Ministry of Justice. The illustrated pamphlet to which I have
just referred contains photographs of Reich Minister Guertner, Under
Secretary Freisler, and others visiting the camp. The photographs also
show a gallows from which was suspended a symbol of German statutory
law, the sign for the paragraphing of legal codes. Guertner and Kerrl
are both photographed standing under the gallows. It would be hard to
conceive a more appropriate symbol for the degradation of the legal
profession under the Third Reich.
COUNT FOUR
MEMBERSHIP IN CRIMINAL ORGANIZATIONS
GENERAL TAYLOR: The fourth and final count in the indictment
contains the charge that seven of the defendants are guilty of
membership in organizations declared to be criminal in the judgment
of the International Military Tribunal. Four of the defendants,
Altstoetter, Cuhorst, Engert, and Joel are accused of membership
in the SS. The defendant Joel is also accused of membership in the
Sicherheitsdienst (commonly known as the SD). The defendant Cuhorst
is also accused, together with three others, Oeschey, Nebelung, and
Rothaug, of membership in the Leadership Corps of the Nazi Party. All
three of these organizations were declared criminal in the judgment of
the International Military Tribunal.
The legal basis of the charges in count four is quite distinct from
that of the first three counts in the indictment. The charge derives
from article 9 of the Charter of the International Military Tribunal,
which authorized that Tribunal, under specified circumstances, to
declare that certain “groups” or “organizations” were “criminal
organizations.” The prosecution before the International Military
Tribunal sought such declarations in the case of each of the three
organizations involved in count four of this indictment, and the
International Military Tribunal rendered such declarations. In the
meantime, it had been provided in article II of Control Council Law No.
10 that “membership in categories of a criminal group or organization
declared criminal by the International Military Tribunal” should
be “recognized as a crime.” Paragraph 3 of article II of Control
Council Law No. 10 specifies the punishments which may be imposed for
membership in such organizations.
In its decision, the International Military Tribunal set forth certain
limitations upon the scope of its declaration that these organizations
were criminal.[68] Under these limitations, in order to render
membership criminal, two things, in addition to membership, must be
shown--
1. That the individual in question became or remained a member
of the organization after 1 September 1939, and
2. That the individual in question either (_a_) became or
remained a member with knowledge that it was being used for the
commission of acts declared criminal by article VI of the London
Agreement, or (_b_) was personally implicated as a member
of the organization in the commission of such crimes.
The prosecution believes that, once it has established that a defendant
was a member of one or more of the criminal organizations, it is
incumbent upon the defendant to come forward with evidence that he
neither knew of the criminal activities of the organization, nor
participated in their commission, or that he ceased to be a member
prior to 1 September 1939. We believe that any question concerning the
burden of proof will be entirely academic in this case, in as much as
the positions which these defendants held, and the evidence embodied in
the documents which we will offer in evidence will show beyond question
that they both knew of and participated in the criminal activities.
a. Membership in the SS
I will deal first with the four defendants charged with membership in
the SS. The evidence will show that the defendant Altstoetter became
a member of the SS in 1937, that he remained a member after 1939, and
attained the rank of Oberfuehrer (senior colonel) in June 1944. The
defendant Cuhorst became a sponsoring member (Foerderndes Mitglied)
of the SS in January 1934 and remained such after 1939. The defendant
Engert joined the SS in 1936 and thereafter attained the rank of
Oberfuehrer (senior colonel). The defendant Joel joined the SS in 1938,
and attained the rank of Obersturmbannfuehrer (lieutenant colonel).
The activities for which the SS was declared a criminal organization
are set forth in the judgment of the International Military
Tribunal.[69] These activities included the extermination of numerous
“undesirable” classes, including Jews, and the transfer of numerous
Jews and foreign nationals to concentration camps where they were
murdered and tortured.
It will be abundantly apparent from the proof that if any member of the
SS knew of, and participated in, its widespread criminal activities,
surely these defendants did. They were directly concerned with penal
problems, and, as we have seen, of necessity their cooperation with the
SS was extremely close. In fact, Himmler himself took special pains to
insure that the German judiciary would be fully advised on the ideology
of the SS and of its nefarious aims and purposes. In July 1944 at the
special invitation of Thierack as Reich Minister of Justice, Himmler
made a speech to the presidents and the attorneys general of the
courts of appeal. A report from the files of the Ministry of Justice
describing this occasion reads as follows:
“On the invitation of the Reich Minister of Justice Dr.
Thierack, the Reich Leader SS, spoke to the presidents and the
attorneys general of the courts of appeal at the Reich Castle of
Cochem on 20 May 1944. The question of the development and the
aims of the SS was dealt with, in particular the importance of
the racial question, questions of national biology, fighting
selection, racial community, the importance of the Waffen SS
(armed SS) and the greater German concept.
“The judges and public prosecutors were to receive the
information through the presidents of the courts of appeal and
might have been informed in the meantime.
“You are respectfully requested to submit a detailed report on
the reception and the effect of this speech on the judges and
the chief public prosecutors.”
Himmler’s well-known views on the value of non-German human life were
thereby made available to all German judges and chief prosecutors.
They surely came to the attention of the defendant Cuhorst, in this
and numerous other ways. They surely were well known among the higher
officials of the Ministry of Justice, including Altstoetter, Engert,
and Joel.
Indeed, long before Himmler’s speech to this judicial assembly, the
Ministry of Justice had been collaborating actively with Himmler in
turning over Jews, Poles, Russians, gypsies, and others from the
ordinary prisons to the concentration camps. The whole evil process
must have been particularly well known to Engert, who was in charge of
Division XV of the Ministry of Justice, which was charged with carrying
out these transfers. A Justice Ministry document written in October
1942 gives complete information concerning the agreement between the
Ministry and Himmler, and specifically delegates the execution of the
agreement, on behalf of the Ministry of Justice, to Engert and his
associates in Division XV. Engert thereafter visited various prisons
throughout the Reich, checked over the lists and arranged for the
delivery of these unfortunates to the SS.
Nor could these arrangements, or other activities of the SS, have been
any secret from Altstoetter, who was a division chief of the Ministry
of Justice throughout this period. Furthermore, Altstoetter was a
particular personal favorite of Himmler’s. Correspondence which we will
introduce will show that the most cordial relations existed between
Altstoetter and Himmler and between Altstoetter and other high SS
officers including Mr. Karl Gebhardt, the Chief Surgeon of the SS. At
a conference in 1942 with Thierack, Rothenberger, and other judicial
officials, Himmler singled out Altstoetter as being “reliable.” The
defendant Joel was not only an officer of the SS, but also a member
of the Sicherheitsdienst, the branch of the SS particularly concerned
with intelligence and with the extermination of Jews in Poland and
the Soviet Union. Joel was particularly familiar with these murderous
activities. A memorandum signed by Joel in 1942 described a plan which
Goering had concocted for picking out “daring fellows” from among
the prison inmates who would carry out special tasks behind the lines
on the eastern front. Joel’s memo recites that Himmler had already
selected a large number of such men for his purpose, but that Goering
wanted the field picked over again. Joel’s memo goes on to state:
“ * * * the only suitable men are those with a passion for
hunting, who have poached for love of the trophy, not men who
have laid snares and traps. The Reich Marshal also mentioned
fanatical members of smuggling gangs, who take part in gun
battles on the frontiers, and whose passion it is to outwit the
customs at the risk of their own lives, but not men who attempt
to bring articles over the frontier in an express train or by
similar means.
“The Reich Marshal Goering leaves it to us to consider whether
still other categories of convicts can be assigned to these
bands of pursuit commandos.
“In the regions assigned for their operations, these bands
whose first task should be to destroy the communications of the
partisan groups could murder, burn, and ravish; in Germany they
would once again come under strict supervision * * *.”
b. Membership in the Nazi Party Leadership Corps
The defendant Cuhorst again, along with Nebelung, Oeschey, and
Rothaug, is involved in the charge of membership in the Leadership
Corps of the Nazi Party. The declaration of criminality rendered by
the International Military Tribunal includes all the “leaders” in
the hierarchy of the Nazi Party from the Reichsleiter down through
Gauleiter and Kreisleiter, to Ortsgruppenleiter. It also includes the
heads of the various staff organizations, down to the staffs of the
Kreisleiter.
The evidence will show that Cuhorst became a member of the Nazi Party
in 1930 and in 1933 was given the status of Gaustellenleiter. The
defendant Oeschey joined the Party in 1931 and in 1940 was given the
status of Gauhaupstellenleiter. Rothaug joined the Party in 1938 and
attained the status of Gaugruppenleiter. All three of these defendants
were therefore heads of staff organizations at Gau level. The defendant
Nebelung joined the Party in 1928 and soon thereafter became an
Ortsgruppenleiter. All four of the defendants, therefore, fall within
the categories of the Leadership Corps specified in the decision of the
International Military Tribunal.
The criminal activities of the Nazi Party Leadership Corps are also set
forth in the judgment of the International Military Tribunal.[70] These
included the persecution and extermination of Jews, administration
of the slave labor program, mistreatment of prisoners of war, and the
lynching of airmen who had bailed out over Germany. The evidence which
we will offer will show knowledge of and participation in all or most
of these activities by all four of the defendants.
c. Summary
In conclusion on count four, the prosecution wishes to point out
certain factors which it believes should be borne in mind in
considering the degree of culpability to be attributed to membership in
organizations declared criminal by the International Military Tribunal.
The charge of membership in these organizations, coupled with knowledge
of the crimes that were committed or participation in those crimes,
is a very serious one. Its consequences will, we believe, have to be
more closely examined at the conclusion of this proceeding, but certain
factors can be pointed out here and now.
It is true, for instance, that in a sense none of the seven defendants
involved in count four were “full time” or “paid” members of these
organizations. All seven of them had full time jobs as judicial
officials but, under the circumstances which the evidence in this case
will disclose, we do not believe that this fact is significant in
estimating culpability.
It is true that the high officers’ ranks in the SS held by Altstoetter,
Engert, and Joel were chiefly honorary. It was part of Himmler’s
calculated policy to draw support to himself from all quarters by
distributing honorary SS ranks and decorations. But those who accepted
special ranks thereby lent the weight of their names and prestige to
Himmler and to Himmler’s policies. If they did not agree with these
policies, they prostituted themselves for whatever prerequisites or
security these shameful ranks and awards might bring.
Where it can be shown, as it will be here, that the defendants not
only were fully familiar with the horrifying scope of Himmler’s
program, but also participated directly in its execution, it should be
considered no defense whatsoever that an individual’s SS activities
were extracurricular rather than his daily bread and butter.
Similar considerations apply to the defendants who were members of the
Party Leadership Corps. Cuhorst, Nebelung, and Oeschey were all members
of the Party years before Hitler came to power; all three of them, and
Rothaug, too, played a leading role in Party affairs. They too, by the
very nature of the positions they occupied in the judicial system, to
say nothing of the fact that they were high in the Party councils, must
have been aware of the activities recited by the International Military
Tribunal as the basis for its declaration of criminality.
Indeed, the guilt of these seven defendants under count four is, in
many respects, deeper than that of many full-time officers of these
organizations. The defendants were highly educated, professional men,
and they had attained full mental maturity long before Hitler’s rise to
power. Their minds were not warped at an early age by Nazi teachings;
they embraced the ideology of the Third Reich as educated adults. They
all had special training and successful careers in the service of the
law. They, of all Germans, should have understood and valued justice.
Conclusion
Crimes, theoretically and, more often than not, actually, are these
acts, which are so contrary to the moral conscience of the community
or so dangerous to the maintenance of a reasonable degree of order,
justice and peace in the community, that the community, by appropriate
processes, demands their elimination and suppression in the interest
of the individuals who constitute the community. Therefore, those
within a nation or a state who institute proceedings to enforce this
community decision as prosecutors, speak for the community conscience
or community decision. For this reason, criminal prosecutions within
states or nations are brought in the name of the State or the
Commonwealth, or by the use of words suitable to describe the offended
community.
In this proceeding at Nuernberg, the world is the community. The
four nations which have written the substantive law under which we
proceed, their responsible government heads and their elder statesmen,
have proclaimed it as a codification of crimes denounced as such by
the moral conscience of that community where the crimes we try were
committed.
Therefore, although this indictment is brought in the name of the
Government of the United States, this case in substance is the people
of the world against these men who have committed criminal acts against
the community we know as the world. For surely few spots on this earth
are so remote that they have not felt in some degree the disruptive,
if not indeed the destructive, impact of the criminal acts of these
men or those others whom they served and with whose acts they were
criminally connected. Therefore, unless all the countries of the world
fight a continuous struggle to match the moral conscience of the world
which has been asserted here, the result will be a cynical Germany and
an apathetic amoral world which drifts aimlessly because it sees no
national conduct which matches the standards of moral conduct which are
proclaimed here. The true significance of these proceedings, therefore,
far transcends the mere question of the guilt or innocence of the
defendants. They are charged with murder, but this is no mere murder
trial. These proceedings invoke the moral standards of the civilized
world, and thereby impose an obligation on the nations of the world to
measure up to the standards applied here.
Although this Tribunal is internationally constituted, it is an
American court. The obligations which derive from these proceedings
are, therefore, particularly binding on the United States. True it is
that two wrongs do not make a right, and equally true that the crimes
charged against these defendants and the other leaders of the Third
Reich were “so calculating, so malignant, and so devastating” that
they find no modern parallel. But, underlying these crimes, there are
myths, superstitions, and more sophisticated distortions of philosophy
which do not know national boundaries. If we, of all nations fail to
rise above these malignant doctrines by actions which manifest a steady
growth in national fiber and character, then all that we do here will
come to nothing, and will leave us and mankind an easy prey to their
next violent eruption.
We have still other obligations here which must not be overlooked.
As was pointed out earlier, we have undertaken, together with other
nations, the task of preparing “for the eventual reconstruction of
German political life on a democratic basis and for eventual peaceful
cooperation in international life in Germany.”
These proceedings are dedicated to that end. Punishment of these
leaders of Germany whose crimes made this task necessary is only a part
of what we seek to accomplish here. We seek to resurrect the truth
in Germany, and to reinvigorate those ideals that have been so long
desecrated. The people of Germany sense the need for this, but they
will measure our efforts by the measure of our own devotion to the
ideals which we proclaim.
The United States cannot evade the challenge of these responsibilities.
We can fulfill only the smallest part of them at Nuernberg.
But Nuernberg must be a symbol, not of revenge or of smug
self-satisfaction, but of peace and good will among nations and
peoples. It is the crime of shattering the foundations of peace and
denying the very fact of humanity that is charged in this and other
proceedings at Nuernberg. It is by trying these charges under law,
and in quest of truth, that Nuernberg will find its full measure of
justification.
B. Opening Statement for all Defendants[71]
DR. KUBUSCHOK (counsel for defendant Schlegelberger, speaking
on behalf of all the defendants): May it please the Tribunal. In the
following statements I shall briefly describe the manner in which the
defense believes, by summarizing the treatment of individual general
problems, it will expedite the trial. My following statements are to be
interpreted in that sense.
The prosecution views the development of justice in administration and
jurisdiction during the period of the National Socialist State. It
limits its reflections to this period and perceives in everything the
consequent execution of National Socialist totalitarian thought. It
believes to be able to reduce all phenomena to this denominator.
It must be the task of the defense to extend the boundaries of this
reflection beyond this period. The defense will show that no new
legal system was created, and that no new system of jurisdiction was
developed. Thus, the historical development which had been built
on, also in the period from 1933 onward, must be presented in its
fundamental traits.
The defense must also be aware of the difficulties encountered in
the treatment of the subject matter before a non-German court. The
difference between the Anglo-American legal system and the German
law, in accordance with which the acts of the German defendants are
judged, lies not only in the solution of individual legal questions
and problems, but is fundamental and systematic. Anglo-American law
appears to us vitally progressive by the effect which decisions of
the highest courts carry in setting precedents. German law, on the
other hand, is a codified law, much less suitable to development by
the administration of justice, but a law which in itself demands
observance of the legal standard. The written law is inflexible. New
concepts of the law cannot succeed in the administration of justice
as is the case in the gradual development of the “common law.” The
German--as well as the continental--principle of the codified law
permits the incorporation of new legal concepts only through sudden
changes [sprunghafte Veraenderungen] of the written law. Thus the
supplementary laws of the penal code in force in Germany since 1877
show an abrupt change at shorter or longer intervals. For this reason
the positivism of law has played a far more important part in Germany
since the end of the nineteenth century than has been the case in legal
systems outside the continent. Only the written law [statutory law]
and not general ideas on morals and rights constituted the directive
for administration of law and justice. Also in Germany this principle
of absolute codification has, with regard to its expediency, been the
object of legislative discussion for some time. Finally, in 1935,
it culminated in the amendment of article 2 of the penal code, and
thus, a synthesis was found between codified law and the development
of law as interpreted by the decision of the judge; and historical
reflection on this event will show the inaccuracy of the prosecution’s
conclusion that, being instituted during the period of the National
Socialist State, it must of need be the product of National Socialist
thinking and its corresponding political aim. We shall prove that the
fundamental basis for this norm was created by plans for reform drafted
long before 1933, and that the necessity of supplying the judge with
a means, enabling him to counterbalance the defects of an absolutely
codified law to a limited degree by analogous application of a penal
regulation had been realized long before that. It was recognized that
the multiformity of life, the constant change of its forms with regard
to social, political and economic aspects could not be regulated by
codified law alone; especially so, because codified law always lagged
one step behind the case in need of settlement of law. Such cases could
not, as is possible in “common law,” be regulated and decided on by
general concepts of law; they merely gave cause for establishing new
legal standards. This one example already reveals the necessity of
dealing with the existing German legal system and with plans for reform
entertained in Germany for decades.
German law will form the basis for all considerations. We will,
therefore, also have to deal with constitutional law and the technique
of legislation. We shall proceed from the provisions of the Weimar
constitution. We shall observe there the legislative functions of
the Reichstag, the Reichsrat [Council of the Reich] and the Reich
President. It will be shown that, since Bruening was Reich Chancellor,
the weight of legislation shifted in ever increasing measure toward the
right of the Reich President to issue emergency decrees.
The turning point was formed by the Enabling Act [Ermaechtigungsgesetz]
of 24 March 1933 which represents the basis for all future legislation.
The cabinet was now empowered to pass laws on its own authority and
even the right of the Reich President to draft and promulgate laws was
abandoned. Thus, under consideration of article 56 of the constitution
which allocated powers of policy determination to the Reich Chancellor,
the right to legislate was practically conferred upon Reich Chancellor
Hitler who, in the absence of time, made increasingly extensive use of
it. The lawful passing of a law and its legal effects will necessarily
be the subject of presentation.
Thus, we are faced with the legal problem of the binding effect of the
Fuehrer order. It will have to be examined whether this Fuehrer order
was a literal order in the meaning of the Control Council Law, the
effect of which is not to be looked upon as exempting from guilt, or,
at the most as mitigating, or, whether we are not dealing here with a
legislative act, to which this provision of the Control Council Law
does not apply.
We shall have to deal with the entire legislative machinery as it was
developed at that time. It will be shown that meetings of the cabinet
took place even after Hitler’s cabinet had been formed, that they were,
however, of an essentially different character already than formerly.
Questions were no longer put to the vote. In individual questions of
legislation too, Hitler stood on his right as Reich Chancellor to
determine directives of policy, in accordance with article 56 of the
constitution. As Hitler’s position grew stronger, especially after, in
August 1934, the positions of Reich Chancellor and President of the
Reich had been combined in his person, cabinet meetings served actually
only the purpose of issuing Hitler’s instructions. In accordance
with instructions, members of the cabinet were to submit bills that
concerned their departments. In accordance with Hitler’s request these
bills were submitted to other participating members of departments
prior to the cabinet meetings, in order to obtain their opinion and at
this stage only objections with regard to departmental competency of
other ministries were taken into consideration. The bill, thus having
become “ripe for the cabinet” [kabinettreif] was then passed in the
cabinet meeting without debate. Since the uselessness of the cabinet
meetings thereby became obvious, they were discontinued completely in
1937. Laws were then legislated by means of a so-called circulation
procedure [Umlaufsverfahren] in which the individual ministers were
given opportunity to voice their objections. These objections could,
however, deal with purely departmental aspects only, whereas objections
against a basic political idea founded on one of Hitler’s instructions
could not be raised or remained ineffective. As we will show, this
had, at the same time, the effect of declassifying certain ministries
and resulted in their being subordinated to other ministries. This
started already in 1935. By the secret National Defense Law, the
OKW, [High Command of the Armed Forces], the Minister of Economics
as Plenipotentiary General for the Economy, and the Minister of the
Interior as Plenipotentiary General for the Administration of the
Reich, were brought into prominence as legislative bodies and were
combined in Board of Three [Dreierkollegium]. The other Ministries
were subordinated to them and depended on them for instructions. The
Ministry of Justice was subordinate to the Plenipotentiary General
for the Administration of the Reich and was permitted to present
bills only through him. The Ministry of Justice’s signature on a law
was therefore only of nominal significance; it indicated that the
judicial departments had been concerned with the contents of the
law. We will show that after the outbreak of the war the Ministerial
Council for National Defense was added as legislative body to the
Board of Three. Here too, the Ministry of Justice was subordinated to
the Plenipotentiary General for the Administration of the Reich, who
was a member of the Ministerial Council for National Defense. Bills
were drafted in accordance with his instructions. If the initiative
for drafting a bill came from the Ministry of Justice itself the
Plenipotentiary General for the Administration of the Reich had to
concur in the matter.
To judge the position of the individual defendant in the Ministry,
a detailed presentation of the organization of the judicial
administration becomes necessary. We must deal with the problem of
subordination of the various offices in their relations with each
other. In particular, the defense will attempt to give the Tribunal
a picture of the actual workings of the Ministry of Justice. Within
the framework of a bureaucratic organization the sphere of activity
of a minister, an under secretary, division chiefs, subdivision
chiefs, a Referenten, and co-workers [Mitarbeiter], will be defined
and certain organizational changes wrought in the course of time
will be taken in consideration. The scope of authority pertaining
to the superior-subordinate relationship is also of importance. Of
equal importance are the limits of signing power fixed for each
individual official of the Ministry of Justice as well as the degree
of responsibility he assumed whenever he affixed his signature. A
signature does not always imply the assumption of a responsibility
nor does it always signify that someone in particular was charged
with the handling or discharging of a specific task. A document has
quite frequently been submitted to an official of the Ministry of
Justice for the sole purpose of having him take official notice of
its contents, i.e., the only object being to apprise the official
in question of some measure or other. This method of passing on
information, of course, could serve many other purposes which remain
to be discussed. A simple request, however, to take official notice,
combined with an accompanying acknowledgment of receipt signed by an
official, never meant that the official had, by affixing his signature,
assumed responsibility for the matter on hand. Finally, there remains
the problem of throwing light upon the relationship existing between
individual departments of the Ministry of Justice and that of defining
the meaning and aim of a cosignature. The act of cosigning indicated
primarily that the subject matter and its treatment as viewed in the
light of the cosigner’s own field of activity, i.e., from an expert’s
point of view alone, gave rise to no objections.
A study of departmental limitations will afford insight into the
nature of the judiciary in its relationship with, and its dependency
on, other Reich Ministries and Party offices. An understanding of the
reciprocal connection between the Ministry of Justice and the Reich
Ministry of the Interior, as well as the limitations imposed upon
both will yield enlightening information on many questions. We shall
also find these necessary connections with other Ministries existing
before 1933 and thereby refute the assumption of the prosecution that
these intersectional connections which are to be found in any system
of government constitute a creation of the Nazis and were adopted
by them for the purpose of achieving their own ends. It will be
necessary, in this connection, not only to discuss the strictly legal
aspects involved, but also to show what the actual conditions were
with respect to power and authority. We will have to reconstruct the
events as they occurred at that time in a state under dictatorship and
show what legal consequences a necessary examination conducted from
the viewpoint of constitutional law will yield. The question will be
raised as to what would have been the consequences of a failure to
comply with an order, and would obedience, therefore, legally exclude
guilt. A factor of great importance in considering that problem is the
determination of the relationship between the judiciary and the police.
The effective role played by Himmler, as chief of the entire police
force, must also be taken into consideration. The full presentation of
facts will show how the police interloped in affairs of the judiciary,
and how this interference led, during the course of the years, to an
appreciable weakening of the position held by the judiciary. We shall
see what means were and had to be employed to fight that battle. The
contrast between the position of the justice administration which was
weak by nature and that of the police which was equipped with all
the instruments of power it employed ruthlessly through the offices
of Himmler and Hitler will become manifest. Again and again one will
perceive how the judiciary was confronted with accomplished facts,
how it strove to defend or recapture lost ground, how all of its
activities, as a matter of fact, were overshadowed by the constant
pressure and expansionistic aims brought into play by the police. It
will be shown how everyone in the Ministry sought to retain as a last
bulwark the concept of the constitutional state for practical usage.
It will be brought out how the police, beginning with the protective
custody order and ending up with the establishment of its own preserve
in the concentration camps and the subsequent creation of its own
SS jurisdiction over its members finally secured their exemption
from the judiciary. Yet in spite of the constant rivalry between the
judiciary and the police we must not lose sight of the fact that
certain contacts between both offices had to be maintained because
of the very nature of German criminal procedure. Since the judiciary
had no investigation agencies of its own, it was dependent upon the
cooperation of the police in that respect. Finally, I shall also show
how Himmler attempted to wrest all public prosecutor offices from the
justice administration for systematic absorption by his police machine,
although he did not succeed in doing so. When the unique position held
by the judiciary within the entire administrative system is made clear
in the presentation, one will become aware of the difficulties of the
situation in which the judiciary found itself in this battle. We need
but have a clear conception of the difference in denotation of the
terms “dictatorship” and “justice” in order to gain an appreciation
of the difficulties of that situation. The dictatorship derived both
stimulus and pattern from the Party in its manifold manifestations. We
will show up the predominance and influence of the Party offices, some
of which were legally established, and demonstrate how both expanded in
all directions and by the employment of any and all means through the
person of the Fuehrer of the Party, namely the dictator.
The defense will show, at the proper time, how the Party sought to push
its interests ruthlessly in opposition to the judiciary. The activities
of the Party constituted a perpetual obstacle to the progressive
administration of justice. It will be shown how the Gauleiter, either
directly or indirectly through Bormann, deliberately added fuel to
Hitler’s repugnance against the judiciary and thereby shoved the Reich
Ministry of Justice into a spot similar to that of an isolated animal
at bay.
The various aspects just outlined will also furnish us with a
broad foundation for those laws to which objections were raised in
the indictment, and the substance of which we shall subject to an
exhaustive examination.
We will show, when dealing with the problem of violation of the
principle _nullum crimen sine lege_, that all those laws with
which the indictment is concerned and which had been made retroactive
do not furnish a basis for punishment. The punishable offense itself,
to which they referred, had already been made punishable by laws in
force at the time the deed was committed.
The _rules_ of penal laws were not only already part and parcel
of the general body of law, but had also been fixed long before by
virtue of positive law at the time the appropriate supplementary laws
went into effect. In every instance revisions were applied only to the
evaluation of a crime in relation to the amount of punishment. Since
the prescribed rules of the German Penal Code, generally speaking, did
not allow a judge much leeway in awarding punishment, it was found
necessary to provide for changes with regard to the fixing of penalties.
We will show that conditions of public distress in Germany were in
each instance responsible for the changes and, furthermore, that these
legislative measures were, above all, inspired by criminological
propositions that had played an important part in scientific
discussions long before 1933. We will also show that the drafting of
such legislative measures was strongly influenced by the knowledge and
experience of other countries.
We shall have to proceed from the assumption that a retroactive measure
characterized only by an increase in severity of punishment does not
constitute a violation of the principle _nullum crimen sine lege_
according to common German continental legal conceptions.
If the prosecution should construe the substance of various laws as
crimes against humanity, we will have to enter into an investigation
of the actual living conditions which gave rise to the necessity for
the legislation of strict measures. One of the cardinal determinants
of any system of penal law is the principle of the deterrent influence
of punishment. Variations in the forms and uses of deterrents are at
all times dictated by circumstances. Thus, when living conditions
everywhere are at high tension, deterrents, if they are to be effective
at all, must be accompanied by a corresponding increase in severity of
legislative measures.
Some of the legal terms found in German court decisions that are to
be examined by the Court will require explanation. Such terms as
“dangerous habitual criminal,” “perpetrators of crimes of violence,”
“juvenile major criminals,” “public enemies,” “asocials,” and “criminal
type” [Taetertyp]. In defining these terms it will become apparent
that they were used as necessary aids in the quest for laws and that
they represented, by no means, a one-sided attempt at increasing the
harshness of measures in the administration of justice. These terms
were established for the purpose of setting up clear-cut, definable
boundary lines encompassing a definite group of major criminals. Such
a move paved the way for pronouncements of restricted judgments, i.e.,
less severe ones upon those who did not fall within that group.
In answer to the question of sterilization, we shall outline its
historical development in Germany and other countries both in theory
and practice. We will find that sterilization, as a program, was
advocated long before 1933 in Germany and even found champions in
Socialist and church groups. Closer examination of the law under
consideration will reveal the great care and caution exercised in
hedging in its specific provisions. Should the law itself, however,
lie beyond the pale of any possible extensive explanation, we shall
then furnish proof that it has never been misapplied for political or
race-political purposes.
The subject of euthanasia will be dealt with at length and judged with
fairness and justice. We will show that the measures originated with
Hitler himself, and in the Chancellery of the Fuehrer. We will also
show--and this is symptomatic of the position held by the judiciary
in the administration--that the judiciary did not receive word of
the existence of those measures directly but in trailing stages
from outside sources. We will bring out how the Ministry of Justice
attempted to thwart the execution of those measures, and then disclose
how those same attempts led to a premature discontinuance of the
program. In order to decide the question of whether the judiciary is
responsible for these measures, which they neither caused to be put
in effect nor carried out, we again must consider the actual existing
facts.
A trial which concerns verdicts rendered by various courts calls for
a study of the organization of these courts as well as their manner
of functioning. We will deal with the structure of the Special Courts
and of the People’s Court as well as the courts before them. We will
consider whether the Special Courts are extraordinary courts in the
sense of the indictment, which were prohibited by the constitution.
We will also define the term “extraordinary court,” and we shall see
that a court which has not been established for the purpose of bringing
certain persons to trial, but for the purpose of passing judgment on
certain punishable acts cannot be considered an extraordinary court.
The legal regulations which are prescribed for proceedings in Special
Courts and which deviate from regulations prescribed for regular
proceedings will be scrutinized with regard to extent and purpose. We
will deal with the structure of the People’s Court in like manner.
In order to discuss these questions, it will also be necessary to give
the Tribunal a clear-cut, plastic picture of German criminal procedure.
We hope to be able to achieve this by interrogating an expert on
the characteristic features of German criminal procedure. Thus, we
will be able to show the fundamental differences between German and
Anglo-American criminal procedure. We will become acquainted with the
preliminary proceedings as well as with the actual main proceedings.
Preliminary proceedings are in the hands of the public prosecutor. The
necessary investigations to ascertain the facts of the case must be
carried out with the aid of the police and through its own or judicial
interrogations. The public prosecutor is bound by law to an objective
consideration of the matter. The prosecutor in so doing of course
represents the instance which later on submits the indictment in court;
yet he is under obligation to draw up the indictment not as an agent
of an interested party, which he will represent later on in the main
proceedings, but as a purely objective agent engaged in clearing up the
facts of the case. He is also charged with procuring and submitting
facts which serve the purpose of the defense. After the facts of the
case have been established in this manner and the transcript of the
interrogations of the defendant, the witnesses, and the experts as
well as the record on any inspections, seizures, or searches have been
recorded to the court, then the public prosecutor draws up a written
indictment and submits to the court the documents which contain the
entire material collected by him with the request that a date be set
for the trial. In considering the question whether action should be
brought, or whether proceedings should be quashed beforehand, he must
take into consideration whether the findings are sufficient to justify
the suspicion that a punishable act has been committed. This question
will then be examined by the court, which has to decide on the opening
date of the trial. If, in the opinion of the court, the findings as
laid down in the documents are not sufficient to warrant a conviction
of the accused, then the court may decide against instituting trial
or it may request the public prosecutor to collect further material,
which will be of an exonerating nature also. After the trial has been
ordered, the proceedings are entirely in the hands of the judge, and in
the case of the courts attended by several judges [Kollegialgerichten],
in the hands of the presiding judge. By studying the documents, the
court finds out how the preliminary proceedings were conducted as
well as the results obtained. However, except in a few instances, the
court may make use of the preliminary proceedings for informational
purposes only, so to speak, only as a jumping-off point for the main
proceedings, which alone are decisive for the final decision. In
these main proceedings the oral principle alone applies. Only that
which is presented at these proceedings by the defendant himself, by
witnesses, experts, and documents can be considered by the court in
passing judgment, but not the interrogation transcript of the police
or the public prosecutor. The presiding judge guides the proceedings.
He examines the defendant who can make statements pertaining to the
case in question, but who may not take the stand as a witness as is the
case in American proceedings and who can also not be sworn in. Should
the public prosecutor or the counsel for the defense desire to ask
questions of the defendant, they may do so only through the presiding
judge. The examination of the defendant is followed by the hearing
of the witnesses and of the experts. This is also carried on by the
judge. The public prosecutor and the defense counsel have the right
to put pertinent questions to the witnesses and to the experts, which
the judge must permit in accordance with the regulations within the
framework of the code of criminal procedure.
The role played by the counsel for the defense must be described in
detail. In comparison with his role in the Anglo-American procedure,
he is not so important here. Whereas in Anglo-American procedures
the prosecution as well as the defense, so to speak as two parties,
submit their case for the decision of the court, in German procedures
the investigation of the facts of the case in the trial, the rules
concerning the extent of evidence to be collected, the serving of
summons to witnesses for the prosecution and defense, without the
prosecution or the defense filing any requests, are in the hands of the
court. According to that, the public prosecutor and the counsel for the
defense in reality only support the court in investigating the facts
of the case, which is the duty of the court itself. Because of this
role played by the counsel for the defense, it follows that in German
criminal proceedings the defendant is represented by a counsel only in
a comparatively small percentage of cases, and in all the other cases
the defendant just does not employ a counsel for his defense.
The question regarding the contesting of a verdict rendered by a court
of first instance demands thorough clarification. In this connection,
we will demonstrate the meaning and the purpose of the nullity plea
and of the extraordinary objection. We will prove that it was not
National Socialistic thinking in terms of violence [Gewaltdenken]
which gave rise and impulse to their introduction, but rather
considerations regarding the technique of procedure. By extending the
competency of such courts, which had to decide only in one instance,
the necessity arose for a higher instance to be able to take care
of reviewing decisions. To be sure, considerably eased regulations
regarding the review of verdict rendered by special courts had already
been introduced when these courts were first established. However,
these regulations proved by providing a resumption of proceedings
[Wiederaufnahme des Verfahrens] insufficient in practice, particularly
after it became evident that economic offenses called for uniform
laws throughout Germany. Considerable divergence insofar as the
legal interpretation of the new laws was concerned and with regard
to the meting out of punishment became apparent in the procedure of
the different courts, through a constant surveillance, which became
especially necessary in view of the changing economic conditions. To
obtain uniformity in this respect, new opportunities for additional
legal redresses were created. We shall demonstrate that the nullity
plea is a method of procedure which has been taken over from the
former Austrian law. The diversity in legal conceptions concerning the
principle of _ne bis in idem_ [double jeopardy] with regard to
legal remedies will be treated in this respect.
The indictment also makes it necessary for us to decide how far a
state may and can consider itself competent to extend its power to
punish [Strafgewalt] acts committed abroad. Is it consistent with
international law to prosecute foreigners for punishable acts committed
abroad? The extent to which a state may take it upon itself to take
action for acts committed abroad depends on whether such state
inclines toward the principle of personality [Personalitaetsprinzip],
the principle of territoriality [Territorialitaetsprinzip], the
principle of protective law [Schutzrechtsgrundsatz], or the principle
of universal law [Weltrechtsgrundsatz]. As can be seen from a study
of comparative law and from the history of law, diverse and variable
opinions are held about this in the different countries, and the
science of international law after the First World War shows this in
particular. We shall point out the basic principles which are contained
in sections 3 and 4 of the Penal Code of 1870, and we shall find again
in the Supplementary Law (Novelle) of 6 May 1940, which extends the
sphere of authority of the penal law, and which is now being assailed
by the prosecution, ideas drafted for the reform of the penal law
conceived long before 1933. Article 153a of the Code of Criminal
Procedure is, to a certain degree, intended to act as a safety valve
against a too exaggerated application, and has in fact greatly reduced
prosecutions, and it shall be dealt with in this context.
The discussion on the introduction of German law and the establishment
of German courts in the Protectorate will cover the three decrees
of the Ministry of Justice, which were also issued as a result of a
decree published by Hitler in the form of a law, and an ordinance
supplementing this decree, both of which were not countersigned by
the Reich Ministry of Justice. In this connection, it is necessary to
clarify the international relations existing between the so-called
Protectorate and the German Reich. Are we concerned with a bilateral
international treaty negotiated between Hacha and Hitler, an
intervention, an annexation, or an occupation? From the subjective
point of view, what the German public and what the defendants actually
knew about conditions then prevailing will be decisive in each case.
We shall have to discuss here and at other occasions--and this is not
dependent on the above--whether within the scope of the indictment
concerning a crime against humanity, the actually selected form of
legislation and administration of justice is not also justified in
its scope under different international conditions. Can one, to give
an example, consider it inhuman if members of the Protectorate were
subjected to the provisions of the German Criminal (Penal) Code
regarding treason and high treason, if the provisions of the law
governing occupied territories would also have justified the same
penalties for aiding and abetting a hostile army?
With regard to the introduction of German law in the Eastern
territories we must first of all consider that they were essentially
divided into the following three groups, namely:
1. Territories which were part of the Union of Soviet Republics
after September 1939;
2. The so-called Congress Poland [Kongresspolen], the principal
part of the Polish Republic, which was administered under the
designation of Government General, and finally;
3. The western parts of Poland, which before 1918 were made
up mainly of the German provinces of Poznan, Upper Silesia,
and other small parts of provinces. German jurisdiction was
introduced only in areas mentioned under 3, and they were
designated as “Incorporated Eastern Territories.” The former
Russian territories mentioned under 1 were subordinate to the
military and civilian governors, and the Government General
mentioned under 2 to Governor General Dr. Frank. Both these
groups were completely outside the administrative competency, or
even the sphere of influence, of the Reich Ministry of Justice.
If, therefore, we have to concern ourselves with the question of the
introduction of German jurisprudence only in the so-called Incorporated
Eastern Territories, then we shall call attention to a point of view
widespread in science and actual application, whereby a declaration
of war renders treaties [staatsrechtliche Vertraege] meaningless
between the parties at war. Not only was this point of view especially
advocated in a detailed justification by the Reichsgericht, as the
German Supreme Court, already after 1918, but it was also championed
in French works on international law, as for instance in Foignet’s
Droit International Public [International Public Law]. It will be shown
that other states have in fact also accepted this point of view. The
recognition that this viewpoint concerning international relations was
actually followed in practice will be shown by an agreement concluded
between Germany and the Soviet Union, which pertains to judicial
procedure in civilian matters in Polish territories incorporated into
the Soviet Union in 1940.
The answer to the question--which has already come up many times
during the examination of witnesses by the Court--namely the question,
whether it was permissible to apply the criminal ordinance for Poles
[Polenstrafrechtsverordnung] also to those Poles who did not come to
Germany of their own volition, will depend on whether we consider the
introduction of German jurisdiction in the above-mentioned extent
admissible. I don’t believe that the evidence presented by the
prosecution covers a case which proves that a Pole who did not come
to Germany voluntarily, was sentenced. Generally speaking however, we
will have to take into consideration the fact that the Pole who came to
Germany was subject to that law which then applied in his former place
of residence.
So that the jurisdiction in so-called Night and Fog [Nacht und
Nebelsachen--NN] cases, can be judged, we shall put in evidence that
in the main the military courts alone were competent. Section 3,
paragraph 2, of the Decree for Military Jurisdiction During Wartime
[Kriegsstrafverfahrensordnung] formed the legal basis for handing over
those cases to the general courts. This decree concerning military
jurisdiction during wartime and special operations was issued on 17
August 1938, and published in the Reich Law Gazette 1939, part I, page
1457. It was only signed by the Fuehrer and Reichskanzler and by the
Chef des Oberkommandos der Wehrmacht [Chief of the Supreme Command of
the Armed Forces].
This decree fixes the scope of military jurisdiction and subordinates
all foreigners and Germans to this military jurisdiction for all
criminal offenses committed by them in the area of operations.
According to section 3, paragraph 2, of this decree, military courts
however are to prosecute such crimes only if it is judged necessary
for military reasons. It is within their discretion to turn over the
prosecution of criminal cases to the general courts.
On the basis of this legal foundation, and in accordance with an
agreement between the Chief of the Armed Forces Legal Department, Dr.
Lehmann--who has appeared here before the Tribunal as witness--and the
former Under Secretary Dr. Freisler, prisoners held in Night and Fog
cases were placed before a German court in the sense of paragraph 30 of
the Hague Regulations on Land Warfare.
The fact that the proceedings [of an NN case] were kept secret in all
its phases was justified for military reasons. According to paragraph 6
of the basic treaty of the Hague Regulations on Land Warfare, military
interests come first, and then comes the protection of the civilian
population. The administrators of justice could not decide about the
scope of the military interests. It could never be the task of the
civilian judicial authorities to judge whether the military commanders
correctly interpreted the competition of military necessity in the
sense of subparagraph 8 of the introduction to the basic treaty of the
Hague Regulations on Land Warfare.
Within the framework of these military necessities we will also clarify
the motive of intimidation which follows from this. A deterrent could,
according to the views of the parties concerned, be achieved only
by the severest punishment, with a judgment in the enemy country.
The legal basis for this was given without more ado in accordance
with those existing provisions of military law which correspond to
international law. It concerned cases throughout which can be punished
with death, according to general military law, such as espionage,
sabotage, aid and comfort to the enemy, and illegal possession of arms.
Is it then a violation of the law of humanity if allowance was made
for the principle of a deterrent in another manner, and standards were
introduced into the proceedings before the courts in Germany which,
regarded absolutely, are attacked by the prosecution, but which have
been introduced here to avoid an administration of justice which would
pronounce the death sentence excessively? We will prove that in the
proceedings before the Night and Fog courts, sentences of imprisonment
were pronounced in an overwhelming proportion, and that the quota of
death sentences was very small. It will be clearly shown that the
deviations from the normal proceedings which were shown by the Night
and Fog proceedings were all conditioned by the principle of secrecy.
A full consideration of German criminal procedure will show that many
limitations in the leading principles of German criminal procedure mean
either no disadvantage at all, or at any rate merely a far lower degree
of disadvantage than it may appear to a person accustomed to thinking
only along American principles of procedure.
Article 3, paragraph 2 of the Rules of Military Criminal Procedure
will also prove that the Night and Fog prisoners had been handed over
to the civil authorities only for the purpose of the execution of the
criminal proceedings, and that moreover the power of disposal over
these prisoners was reserved for the offices of the Wehrmacht.
When we see that the Night and Fog proceedings had been taken over
by the judicial administration by virtue of an order of the Fuehrer
and by virtue of the delegation of the military authorities competent
therefor, the question of the relationship of international law to the
German State law will also be submitted for consideration. The German
science of political and international law has always unanimously
advocated the view that state law takes precedence over international
law. This would be of significance in each case for the question of a
consciousness of injustice on the part of the defendants.
The prosecution has also concerned itself with “lynch justice”
[Lynchjustiz]. The defense will present documents proving that the
judicial authorities criminally prosecuted, in spite of the violent
opposition of the Gauleiter concerned, Germans who had mistreated
or shot Allied fliers forced to abandon their planes, and that
they protected Germans who treated such Allied fliers humanely.
This positive attitude of the judicial offices will constitute an
illustration of the relations of the powers [Machtverhaeltnisse] at
that time. The Party and the police in their attitude were opposed
to each other. The leader of the Party Chancellery had ordered all
State and Party offices not to interfere with the execution of “lynch
justice” on Allied fliers. The Minister of Justice could not ignore
this order. He applied it in a manner that could be interpreted as
quashing the proceedings. This weakening of an order instigated by the
Party and the cases in practice mentioned show here, too, the basic
tendency in the consideration of the actual relation of the powers.
Arguments from the aspect of reprisal will also be made, which are
supplementary to the question of “lynch justice.”
The German Law of Pardons needs also to be presented and dealt with
in detail, since it represents the basis, after all, for the proper
evaluation of numerous documents presented by the prosecution,
including the report lists of the Reich Ministry of Justice in matters
of the death sentence. It has been fully codified, and we will refer to
the numerous legal provisions. The entire system of pardon will justify
the statement that it was most painstakingly built up with every safety
measure and must withstand any criticism as a system. The law of pardon
was incumbent upon the head of the State. Hitler transferred his
executive power to Reich Minister Thierack, even for death sentences,
whereas the latter’s predecessor in office, Reich Minister Guertner,
and after his death, Under Secretary Schlegelberger, were restricted
in the execution of the law of pardon in that they could recommend to
Hitler to pardon a person sentenced to death, but they themselves could
not pardon a person. What resulted is necessarily an orientation toward
the utmost which could be obtained from Hitler. The manner they used
and how the whole tendency on the part of the participating offices was
to exhaust fully the possibilities for pardon which were offered will
be shown in the evidence.
From the individual provisions we will see that in matters of death
sentences, for example, the Oberstaatsanwalt, regardless of whether
the condemned person had personally submitted a petition for pardon,
had to make a thorough report on the question of pardon after he first
gathered the attitude of the court, the presiding judge, the prison
authorities, the police, and still other offices prescribed in special
cases. This report goes to the Generalstaatsanwalt who on his part must
then state in detail his attitude about the pardon report. In the Reich
Ministry of Justice, special Referenten had been appointed for dealing
with pardon questions. These Referenten were supported by numerous
co-workers. The co-worker had to present an opinion with an exact
report of the facts, an opinion on the legal question of the individual
case, a criticism of the judgment with regard to the factual and legal
aspects, and a detailed statement on the question of pardon. The
Referent, on his part, as well as the division chief, had to add their
attitude to this opinion. Only if all reporting offices, the co-worker,
the Referent, and the division chief unanimously recommended that
the sentence be carried out was the matter designated as a so-called
smooth affair [glatte Sache]. In this case the Referent in charge of
death sentences reported personally to the Minister, calling special
attention to all the circumstances of the case worth remarking on.
On the other hand, even if one of all these participants recommended
commuting the death sentence to a prison sentence, then the co-worker
had to present his detailed opinion in person to the Minister; and the
Referent, the division chief, and the under secretary stated their
attitude at the request of the Minister.
The same procedure was also used in principle in cases of so-called
immediate execution [Blitzvollstreckung]. This concerned cases from the
last years of the war, in which the facts of the case and the legal
question to be decided on were straightforward; moreover, it concerned
cases in which, on account of the fact that the deed had caused
considerable stir among the public, a special deterrent effect should
be obtained by carrying out the sentence as soon as possible after the
deed had been committed and judged. The only difference in dealing
with these immediate executions and the usual procedure was that all
reports and opinions were given by telephone, telegraph, teletype, or
verbally, and on account of its being a straightforward case no files
were submitted.
The indictment also contains the charge that the amnesty laws were
administered according to political view. The provisions in question
will be discussed in detail when the evidence is presented.
Hitler’s constitutional right to quash pending criminal proceedings
[Abolitionsrecht] will be shown in its practical meaning.
Regarding the carrying-out of sentences we will deal with the legal
provisions and the regulations applicable in penal institutions. The
defense will prove that no crimes against humanity were committed in
penal institutions of justice by its officials with the exception
of occasional violations which are unavoidable even under the best
directions. The rules of the strict legal provisions of the German
Penal Law against the ill-treatment of prisoners will emphasize this
point. The cases mentioned which date from the last days before the
collapse offer, as a singular sign of that moment, no basis for a
general judgment of the German execution of punishment and will be
referred to as each individual case comes up.
The action of the Spruchrichter dealt with in the indictment and
the charges raised in this connection will bring the legal position
of the German judge up for discussion. We shall see the judge as an
independent official who is not bound to directives but only to the
law. We will discuss the positivism of the German interpretation of
law. We will deal with the prosecution’s charges arising from the
directing regulations. We will show that they are merely a reference
to the motive and aims of the law in question, and that they, to
some extent, give a clear conception of the policy of the legislator
regarding crime. They are a clue to the way in which the legislator
imagines punishment should be awarded by the judge. They are in no case
a general directive or a directive pertaining to an individual case.
In dealing with the position of the public prosecutors we will refer
to the principle of legality which is laid down by law, and according
to which the public prosecutor was bound to prefer a charge as soon as
there was sufficient suspicion that the criminal facts as laid down in
a legal provision existed.
In conclusion the defense will also deal with the legal questions,
arising from Control Council Law No. 10 itself. We know that the
Tribunal has been called together in order to pass judgment on the
basis of this law.
On the basis of this actual fact and in compliance therewith, we will
for practical reasons refrain from repeating the relevant objections
already raised in the proceedings before the IMT and other proceedings
before similar Tribunals in session. On account of these considerations
we will restrict ourselves to the real legal questions as to whether
an indictment is permissible from the point of view of conspiracy in
war crimes and crimes against humanity of Control Council Law No.
10. In this respect my colleague, Dr. Haensel, will provide detailed
statements hereon in due course.
At the beginning of the evidence for the defense and in connection
with the opening statements on behalf of the individual defendants,
the defense intends to call in two experts for the legal questions
of general interest, namely Dr. Jahrreiss, Professor of Public and
International Law at the University of Cologne, and Dr. Niethammer of
Tuebingen, formerly attorney at law, now Honorary Professor of Criminal
Law and Criminal Procedure.
As far as documents being introduced with regard to the general
questions discussed--
We will not be able to produce Dr. Jahrreiss at this time. Professor
Jahrreiss cannot get away; he will only be available later on in July,
and perhaps a suitable moment will come then when he can be examined
when we have dealt with the cases of the officials of the Ministry of
Justice.[72]
As far as documents being introduced with regard to general questions
discussed, they will be handed over during the defense of the
individual defendants. For the purpose of survey we will at the
conclusion hand over the documents relative to a particular subject
compiled in a special document book.
The defense has distributed the subjects which have arisen as a result
of my survey among the individual counsel for the defense. Counsel
in question will go into these cases during the proceedings and in
particular at the time of the closing statement.
The subjects are classified in the following manner:
1. General questions on public law and international penal law--Dr.
Schilf.
2. Legislative--machinery and technique--myself [Dr. Kubuschok].
3. Relationship between judicial authorities and police--myself.
4. Relationship between judicial authorities and the Ministry of
Propaganda and the news service in the Nazi State--Dr. Schilf.
5. System and structure of Reich Administration of Justice--Dr. Schilf.
6. Introduction of German law and German jurisdiction in the
Protectorate and the Occupied Eastern Territories--myself.
7. Sovereignty of justice in the incorporated and occupied
territories--myself.
8. German court organization, Special Courts and People’s Court--Dr.
Brieger and Dr. Grube.
9. German criminal procedure--Dr. Doetzer.
10. Extraordinary objection--Dr. Grube.
11. Nullity plea--Dr. Schilf.
12. Retrospectiveness of penal laws and legal analogy--Dr. Aschenauer
and Dr. Schilf.
13. Types of perpetrators--Dr. Schubert.
14. Military penal law--Dr. Koessl.
15. Independence of judges and directive measures--Dr. Aschenauer and
Dr. Schilf.
16. Law of pardon--myself.
17. Execution of sentence--Dr. Marx.
18. Lynch law--Dr. Orth.
19. Sterilization and Euthanasia--Dr. Orth and myself.
20. Conspiracy and Control Council Law No. 10--Dr. Haensel, Dr.
Doetzer, and Dr. Wandschneider.
May I now begin making my statement for the defendant Schlegelberger?
PRESIDING JUDGE BRAND: Do you have that in the translated form
for us? We have it, thank you.
C. Opening Statement for the Defendant Schlegelberger[73]
DR. KUBUSCHOK: If, in my statement concerning the defense in
general,[74] I have just pointed out that the administration of justice
in the National Socialist State cannot be judged separately but must
be judged in the light of the whole administration of the Reich and
its head, the dictatorship, I shall have to refer thus in defending
the defendant Schlegelberger again and again to his personality, quite
apart from dealing with the objective facts as propounded by the
prosecution in order to judge and interpret actions in their proper
light.
Franz Schlegelberger was, after many years of service to both the
administration of justice and the jurisprudence, already Under
Secretary when Hitler came to power. He kept this position until August
1942 when Hitler, according to his pronouncements wanted to build up
a National Socialist administration of justice. Schlegelberger had
always been dealing with civil law. We will outline this, his activity,
in general. When in January 1941 after the death of the Minister of
Justice Guertner, he took over the administration of the Ministry of
Justice as the then oldest Under Secretary according to rank, so to
speak; only then did he, in this position, and to the extent of that
position, have to deal with criminal cases.
If the prosecution on account of this, his position, has indicted
him on these individual counts and included him in the common legal
framework of conspiracy, the defense will first of all show that
Control Council Law No. 10 does not provide a legal basis for an
indictment of conspiracy to war crimes and crimes against humanity.
My colleague, Dr. Haensel, responsible for the entire defense, has
taken over this subject and will make the necessary statements and
put forward motions. In addition, I, myself, will submit sufficient
evidence to prove that with a person of Schlegelberger’s caliber,
conspiracy and violent thinking are incompatible. I shall submit
proof, as to his basic attitude during the whole of his tenure of
office, that he could never have either favored or promoted principles
of violent thinking, that on the contrary, all his activities were
aimed at preventing or at least modifying the course set by Hitler’s
dictatorship. We shall see, how he wrestled with the opposing forces
of the Party, and how unequally distributed the powers were, and how
his defensive attitude was breached but forcibly. We shall learn how
much Hitler had always disliked the administration of justice and its
expert administrators, and that, at a time, when not only the whole of
the administration in Germany but also the entire public life, even
to a certain extent private life, had already been “coordinated” and
shaped according to National Socialist ideas. On 20 August 1942, he
had to realize the fact that he had to build up a “National Socialist
administration of justice.” Does this not constitute the truest
judgment of Schlegelberger that he be judged by a man, who after all,
was best qualified to judge? Is it not evident that the administration
of justice under Guertner and Schlegelberger had done their utmost to
face the avalanche? Is Hitler not best qualified to testify against the
charges brought by the prosecution, namely that Schlegelberger had lent
himself to the carrying out of National Socialist ideas of violence as
personified by Hitler?
With this point of view in mind we shall have to judge the defendant
Schlegelberger: A man, known to us only by his work, performed with
integrity, and whose activities, viewed from National Socialist
aspects, Hitler criticized in the above-mentioned way both in his
Reichstag speech on 26 April 1942 and in his decree of 20 August 1942.
Such a person has a right to point out: “The charges brought by the
prosecution which superficially regarded, appear to be against me, and
the charges that the prosecution has brought against me in order to
incriminate me for my 10 years of service as Under Secretary cannot be
judged as isolated facts and without considering motives but must be
evaluated as a whole.” Thus, we will best be able to gain breathing
space after the speech of the prosecution, which is necessary in order
to reach impartial judgment and which culminates in the conclusion that
Schlegelberger “had indeed played a prominent part in the destruction
of German law,” a reproach which he rightly rejects: with which
also the statement of the British Broadcasting Corporation on the
occasion of his retirement from office in August 1942, namely, that
with Schlegelberger, the last judge in Germany, had disappeared--is
incompatible.
Schlegelberger, under secretary for civil law, certainly knew how to
supervise the orphaned Ministry of Justice for a year and a half in
an administrative capacity. The one who succeeded him, his appearance
already threateningly forecast, and to the stemming of whose course
Schlegelberger devoted his whole self, escaped judgment. The aspect
of being the representative [Gesichtspunkt der Repraesentanz] which
obviously has influenced the prosecution essentially, has to be
disregarded.
We will also have to take the fact into account, that Schlegelberger’s
position as interim administrator of the Reich Ministry of Justice,
did by no means equal that of a minister. If, in spite of these hectic
times when everything was being infected by the National Socialist
virus, he succeeded in retaining the position taken over from Guertner,
his decision alone to remain in office until the limits of what could
normally be expected of anyone, certainly not an easy decision, would
fully justify this step. Judging by his personality and studying in
detail the real and true situation during those years we shall explain
what really was behind the Rostock speech mentioned by the prosecution.
Evidence will be offered as to Schlegelberger’s real relations with
the Party and how this was evident in the policy he pursued concerning
questions of personnel.
His attitude toward Hitler will be subject to a careful examination. We
shall be unable to do justice to this task if we do not also acquaint
ourselves with those who blindly followed Hitler, and rendered the
task of Schlegelberger and prior to that, Guertner’s, so difficult.
Freisler, his antipode, whom Hitler by entrusting him with all matters
concerning criminal law had made into a guardian of National Socialist
ideas within the Ministry of Justice and all the other party officials
who hated the last bulwark of constitutional thought.
With reference to individual counts of the indictment I shall
point out that as “seditious undermining of the military power”
[Wehrkraftzersetzung], so-called passive defeatism only became a
punishable offense in 1943, and it was precisely for this purpose that
the competency of the People’s Court was established as per decree of
29 January 1943. The practice of seditious undermining of the military
power, to which the indictment refers, therefore did not take place
until Schlegelberger’s retirement. At the time of Schlegelberger’s
tenure of office these cases of defeatism were judged according to the
Insidious Statement Law [Heimtueckegesetz] and were not punishable by
death but by a maximum penalty of 5 years’ imprisonment. The extension
of the German criminal jurisdiction to include crimes committed
abroad as well was practiced before Schlegelberger took over the
administration.
I shall deal in detail with the legal question of the extension of
German law to the occupied territories and I shall throw some light
on the origin and the application of the ordinance concerning crimes
of Poles and Jews. I shall show by means of the documents already
submitted by the prosecution what demands were made by the Party
concerning the treatment of the Poles and Jews and how these requests
were opposed by law and in practice. Schlegelberger’s general attitude
toward the Jewish question will be the subject of the discussion.
Even if the prosecution connects the defendant Schlegelberger with the
extradition to the police of so-called asocial persons as well as of
Poles and of Jews, the defense will prove that those orders were only
given according to an agreement made between Himmler and Thierack in
September 1942. Previous, special cases only concerned direct orders
by Hitler given to the police and which could not be prevented by the
administration of justice. We shall see that the police had started
during the time of Guertner to remove prisoners from the prison by
command of Hitler if Hitler considered the sentence passed during the
criminal proceedings, a too mild one. Only in order to prevent this
if possible or at least to restrict it did Guertner insist that he be
informed of this order at the same time as were the police. It was only
because of that request that the administration of justice dealt with
these matters at all. It will be proved that everything possible was
done in order to prevent extraditions to the police.
I shall also speak of the practice of granting pardons and find here
also a confirmation of Schlegelberger’s general attitude.
The indictment also deals with the so-called euthanasia. We shall see
that Schlegelberger opposed the carrying out of the euthanasia program
soon after taking over the administration. He obviously succeeded, for
we shall establish that the measures were stopped in August 1941 and
were only started again at the time of Thierack as can be seen from the
meeting described by the witness Suchomel.
Concerning sterilization, we shall offer abundant evidence to prove
that the practice of the courts for protecting the hereditary health
of the German people was unobjectionable, that those courts had
examined conscientiously whether evidence as to the facts required by
the law had been submitted and especially sterilization for political
or racial reasons was never decreed. I shall produce a witness to show
that this procedure had been carried out in an unobjectionable way,
even where Jews were concerned.
Regarding the question of the Night and Fog cases, it will be explained
for what reasons and with which results the Night and Fog cases were
taken over by the general courts. It also will be set forth what
regulations were in force up to the date of Schlegelberger’s retiring
from office. The extent and the consequences of restricting the
proceedings necessitated by maintaining secrecy will be explained.
By submitting documents I shall present evidence about the political
development of the National Socialist State and the structure of
its administration. I shall present documents referring to legal
provisions and their explanations concerning the questions raised by
the prosecution. Finally, I shall submit several affidavits which deal
with certain questions and help to form a judgment of Schlegelberger’s
entire personality. I shall produce a witness for the political and
administrative conditions in the National Socialist State. Another
witness will, as already mentioned, give evidence on the practice of
the courts for the protecting of hereditary health of the German people
and on general questions regarding sterilization. Finally, I shall name
as witness the personal Referent of the defendant who for many years
held this position up to the time of Schlegelberger’s retirement from
office, and who by virtue of his knowledge gained through professional
and personal experience will be able to give evidence on numerous
questions which have to be discussed.
D. Opening Statement for Defendant Klemm[75]
DR. SCHILF: May it please the Tribunal. By way of
introduction, I should like to call attention to the fact that the
indictment also clearly implies with regard to my client Herbert
Klemm that, permeated as he was with National Socialist convictions,
his one endeavor was to realize, by judicial methods and throughout
the judicial field, the aims of National Socialist despotism. The
indictment also, indeed, implies that he was acquainted himself
from the start in detail with the great extent of these aims. The
prosecution has tried, in connection with each action and with each
event that came to light anywhere in the files, to refer everything
with which my client was concerned back to that fundamental
conception. Yet in my opinion the prosecution does not make any
effort to embark upon proof that the defendants had come to a mutual
agreement in their own minds, such as must constitute the prerequisite
for the conspiracy of justice, for the furtherance of the Hitler
regime as alleged by the indictment. Instead, the prosecution is
content to trace in every statement and every action simply a sign of
malicious intent and bad faith without stopping to consider how such
actions are to be estimated in the light of historical development
and within the limits of the phenomenon as a whole and the practical
possibilities. Just as the indictment desires to see in the legislative
power [Rechtsschoepfung] conferred upon the judge by the alteration
of paragraph 2 of the German Criminal Code an example of the judicial
intention to try cases unrestrictedly and arbitrarily, without
attention to legal guaranties, so also my client Klemm is credited
with completely false motives in detail. Just as it will be proved
by the defense that such legislative power for the judge had already
been planned, long before 1933, in draft proposals for reform, with
the object of creating the necessary synthesis between merely codified
law and the actual development of law through the giving of legal
judgments, so also shall I show, in my defense of the defendant Klemm,
in general, that he, too, was concerned, in his measures, with the
preservation of real justice. Reference will therefore inevitably be
made to the background of historical development behind the measures
with which he is charged, to the related points in the German legal
system, and to the actual distribution of power existing during the
Hitler regime. In this connection a great deal will depend on the view
that is taken of his position, his potential influence and the limits
of his authority.
In particular, I shall divide the subject matter of my proof into
sections.
In the first place, it will be necessary to begin with the fact that,
outwardly, the defendant Klemm has to bear a certain amount of odium:
he had joined the NSDAP before it took over power, and he remained
in it until the capitulation; he was at first Oberstaatsanwalt and
Ministerial Councilor in the Reich Ministry of Justice, he was chief of
liaison with the SA and reached high rank in that organization, he was
a group leader in the Party Chancellery, and he was finally to become
Under Secretary in the Reich Ministry of Justice, the last position
he held, and a personal friend of and very close collaborator with
Thierack, the Minister. The indictment evidently intends, by giving
this outward impression, to exhibit Klemm as a man who considered
justice to be a means, and treated it as a means, to exclusively
political ends. I shall prove that this was not the case. In order to
demonstrate the seeming contradiction between outward appearance and
actual private character, I consider it my duty to give the Tribunal a
comprehensive picture of the personality of my client as a jurist and
as a man. It will become evident that he was and remained a simple and
straightforward person, even after he rose higher in his career, that
he was a man of sensitive disposition and refined feeling and always
endeavored to act objectively and above all justly. I shall therefore
have to ask my client to explain in the witness box the ideas he had
conceived as to the aims of the NSDAP, the hopes he had before him in
the legal and political field, and the way in which he believed it
possible that the political intentions of the leadership of the state
could be combined with the idea that law has to prevail. He will have
to explain to the Tribunal how many things he actually did not know in
order to enable us to gain an accurate picture of the situation at that
time and of the developments.
So far as the separate phases of the activity of the defendant Klemm
are concerned, it must be said--
The indictment takes as the first phase his activity as
Oberstaatsanwalt and Ministerial Councilor in the Reich Ministry of
Justice. The two charges specially raised against him in this field
are concerned with the so-called “more severe interrogations” through
organs of the Gestapo and with the fact that he was the Ministry’s
chief of liaison with the SA. I shall prove that it was not the duty of
the defendant to suggest in certain cases “more severe interrogations,”
in other words, maltreatment of prisoners by the Gestapo. It was,
on the contrary, his duty to prosecute such cases through criminal
proceedings, since also the Gestapo and its organs were prohibited from
ill-treating prisoners. In this connection I shall be able to take the
opportunity to describe the attitude of my client by reference to the
documents which were submitted in the IMT trial. It was the defendant
Klemm who as an official in the Ministry of Justice of Saxony suggested
the strict prosecution which was made so much of both in indictment and
in the judgment given in the IMT trial of those SA men who had rendered
themselves guilty of ill-treatment of prisoners in the concentration
camp at Hohenstein in Saxony. There is no ground for the assumption
that Klemm’s attitude changed at a later date, when he worked in the
Reich Ministry of Justice.
The position of a chief of liaison between the Ministry and the SA
leaders will be described by me through reference to the documents. The
judiciary as a public authority, had the duty to inform the SA leaders
of any prosecution or condemnation of a member of the SA. It was the
purpose of such information to give the SA leaders the possibility
of removing criminal elements from their ranks. This purpose was
known to the Reich Ministry of Justice. The chief offices of both
organizations had to exchange information and experience and were
obliged to ascertain in which special cases they had to be interested.
It was necessary to appoint a special Referent for this purpose, merely
in order to simplify the handling of these matters. This post was
filled by my client Klemm, since he was simultaneously both a member of
the SA and of the Ministry of Justice. I hope, indeed, to prove with
special effect that it was absolutely opposed to Klemm’s conception of
his office as such a liaison chief to suppress criminal proceedings
against SA members or protect them against prosecution, but that on the
contrary he thought it necessary to support vigorously the interests
of justice against the SA leaders. An individual case will give me the
opportunity to demonstrate how also in this field Klemm was guided by
legal consideration alone, and this individual case will be symptomatic
of the attitude of my client.
In order to be able to judge correctly the activity of my client in the
Party Chancellery, I consider it my duty to describe first of all the
sphere of work and problems with which the Chancellery itself had to
deal. This seems to me all the more necessary, as evidently completely
false ideas of this organization are prevalent. I shall therefore
have to show that by reason of legal regulations the latter had to
take part in all the legislative and administrative work done by the
Ministry of Justice and that it was not simply an office that carried
out tasks concerned purely with Party politics. In the constitutional
structure of the Third Reich, the Party Chancellery had to perform
public functions. I may already at this point draw the attention of
the Tribunal to the fact that my client is not affected by count four
of the indictment, in spite of the fact that he was employed in the
Chancellery of the Party. It is indeed a significant indication that
the prosecution has formed an incorrect view of the Party Chancellery,
if an official could be employed there who did _not_ belong to the
corps of leaders of the Party.
An explanation of the bureaucratic structure of the Party cannot
be avoided; its division into separate departments and groups will
have to be described. The defendant Klemm was at the head of only
a subordinate group in the Party Chancellery. Its number was IIIc.
I would ask the Tribunal to be so good as to take due note of this
number IIIc in my speech for the defense, so far as the latter is
concerned with the Party Chancellery, and also when I come to explain
the documents relative to the Party Chancellery. My client was
employed exclusively in this legal group. This outward sign alone is
an important circumstance to be considered in arriving at a correct
estimate of the work of my client. The special task of this Group IIIc
was to deal with all matters which affected law, codification, and the
administrative work of the Ministry of Justice. The officials in this
legal group remained, as did Klemm also, officials of the Ministry
of Justice; they were merely delegated by that ministry. They also
therefore represented in the Party Chancellery the idea of justice and
the concerns of _their own_ ministry. Whenever different questions
were raised in Group IIIc, for example, questions as to the legal
disposition of the affairs of foreign peoples, a different department
or group of the Party Chancellery dealt officially with and decided
upon the matter. Owing to this restriction of the field of their work
the legal group could only raise objections against the treatment of
any matter in another department if formal questions were handled. The
legal group had no right of appeal if a matter had been decided on
principle by other groups. Thus, it will be shown that the decree about
penal law with regard to Poles was not dealt with or decided upon in
Klemm’s legal group but in Group IIIa of the Party Chancellery, which
was concerned with questions on ethnic origin [Volkstumsfragen]. The
defendant Klemm, therefore, could not exercise any influence whatever,
during the period of his employment in the Party Chancellery, on the
provisions of this law.
Through further evidence it will be made clear that Klemm’s position in
the Party Chancellery, as a consequence of the latter’s special method
of working, could only have slight influence on decisive matters.
Really important affairs concerned with politics or both politics and
law, so far as they may interest the Tribunal and the prosecution, were
not handled by the legal group headed by Klemm.
The officials of the Party Chancellery, so far as they were group
leaders, had no influence whatsoever on politics. On the contrary, this
was done by the Party’s own office. The latter had no state functions
as had the Party Chancellery. The NSDAP had offices for agricultural
policy, people’s welfare, people’s health, a national legal office,
an organization of Germans living abroad, and many more. There the
political principles were planned, there the influence was exercised
that found expression in the sentence: “The Party gives orders to the
State.” All these offices of the NSDAP must be separated clearly from
the Party Chancellery with its function of a public nature. These Party
offices transmitted their plans through the competent “Reichsleiter”
directly to Hitler as the Party leader and head of State.
Also the position of Bormann must be explained. He also had a variety
of offices and functions as Reich leader, secretary of the Fuehrer,
and leader of the Party Chancellery. At the time when Klemm was working
in the Party Chancellery, Bormann was regularly in the Fuehrer’s
headquarters and thus away from Munich. All important questions of
a general nature, also those affecting justice and its policies and
organizations went directly to Bormann in the Fuehrer’s headquarters.
There Bormann himself ordered that most of the matters be handled at
once. In such cases Klemm’s legal group often received no information
at all of his decision, or at the most a copy subsequently. When
Bormann transferred a job to the legal group in Munich he included as
a rule instructions for the handling of the matter. When things were
handled in this way by Bormann no objections could be raised. Moreover,
the evidence I will produce will destroy the rumor that my client had
close contact with Bormann. They disliked each other very much. The
main reason was that Klemm did not accede willingly enough to the
wishes of Bormann. It occurred only very rarely that Klemm reported to
Bormann. To a much greater extent than other subdepartment heads of the
Party Chancellery, Klemm also informed Bormann about his own point of
view.
After I shall have tried to clarify the unclear and dark picture of the
Party Chancellery, I shall discuss in detail the _working method_
of my client and I will outline in what matters he participated and
how far he is, therefore, responsible and in what matters he did not
participate.
(_a_) A series of documents submitted by the prosecution carry the
dictation symbol of Bormann; I shall show that all these documents can
have nothing to do with my client, Klemm. They were prepared solely by
Bormann and his staff at the Fuehrer headquarters. No copy was sent to
the Party Chancellery at Munich, so that the legal group never received
any knowledge of them. This is the reason why it is so important to
draw attention to the symbol of the legal group, namely, IIIc. Klemm
neither prepared, nor had any knowledge of, any letters of the Party
Chancellery which do not bear this file number. Just as an example
I mention Thierack’s letter to Bormann on the collaboration of the
judicial authorities in the extermination of Poles, Jews, and gypsies
(_NG-199, 199A, Pros. Ex. 243_). As “Top Secret Reich Matter” this
writing never reached section IIIc of the Party Chancellery.
(_b_) I will show that the defendant cannot be held responsible
for a possible crime in which the huge organization of the Party
Chancellery may have been involved, but not the defendant, if he had
never participated in the planning, and if he could never have received
information about it. It is my opinion that this is also not possible
by using the concept of conspiracy or the broadly defined forms of
participation according to the Law No. 10 of Control Council. Such a
reasoning is not possible especially if I will prove how strongly Klemm
advocated--especially in the Party Chancellery--the idea that law has
to prevail in a state, and how he tried to prevent that Party organs be
influenced in any unfavorable way. Every day the Group IIIc received
complaints against the justice, the judges, and against the offices
of the administration of justice which wanted to influence pending
proceedings or even to change sentences which had already been passed.
Work in connection with such complaints made up the biggest part of
the working time of this group. In all these cases the complaints were
rejected by stating that the judge is independent. I shall submit
evidence to show that the Party Chancellery, particularly Group IIIc,
expressly forbade all political leaders (that is, the Fuehrer Corps of
the NSDAP) to interfere in the jurisdiction. It will be demonstrated
that this circular decree was issued on Klemm’s initiative. I shall
disprove the assertion of the prosecution and shall show that my
client advocated emphatically the punishment of Party members who
were found guilty of an offense. Accordingly, Klemm did not use his
position in the Party Chancellery to keep justice under pressure but
on the contrary tried to promote the interests of justice and the idea
that law has to prevail in a state. In the year 1941, for example,
he succeeded in persuading Bormann in a memorandum to reject the
plans of Himmler, who attempted already at that time to transfer the
jurisdiction over the Poles to his police.
(_c_) The documents submitted by the prosecution, so far as they
really affect the legal group of the Party Chancellery, will not be
able to invalidate my above assertions. When I will submit the evidence
for the defense I will have the opportunity to explain the purpose and
the context of these documents. It will be possible to correct many
misinterpretations.
In this connection it seems to be necessary to explain briefly the fact
that Klemm’s influence in the Party Chancellery was never so great
that it could have played any part in the appointment of Thierack to
Minister of Justice in the year 1942. Many a person who could not know
the actual events and their background may have had some fantastic
ideas in this respect. The explanations of the defense will destroy
these conceptions.
(_d_) With regard to the activity of my client as Under Secretary
in the Reich Ministry of Justice, it will be the task of the legal
presentation to separate those actions and measures for which he is
responsible from those for which he is not responsible. Also with
regard to this point I shall emphasize my point of view that on
basis of Law No. 10 of the Control Council, my client cannot be held
responsible for what he himself did neither instigate nor approve.
In order to be able to find the facts which will serve as the basis
for such legal arguments, I must give you during the proceedings
of evidence a detailed picture of my client’s position as Under
Secretary, of his working field, and of the extent of his personal
influence. Even externally the position of the Under Secretary had
changed considerably since the appointment of Thierack. While before
this time the Under Secretary in the Ministry of Justice stood on
principle between a section chief and the minister, after that time
his function declined to the extent of being a figure [figurehead]
beside the minister. Formerly the Under Secretary had a broad working
field and had authority to make important decisions himself, and only
the most important matters reached the minister himself, such as
bills or critical matters with regard to policies of the State and of
justice. Thierack himself on the other hand, handled all matters with
regard to the administration of penal law which the section chief was
not permitted or did not want to decide, and he degraded the under
secretary to a position in which the latter could merely give his
opinion like any other expert. It is correct, that from an external
point of view the working field of my client seemed to be greater than
that of his predecessor, Dr. Rothenberger. The sections of Ministries
III (legislation in the sphere of criminal law), IV (administration
of criminal law), and V (execution of sentences), which were not
under the latter’s jurisdiction were formally reassigned to Klemm.
This seeming extension--my client was thus practically in charge of
the whole Ministry of Justice with all its main sections but with the
exception of section XV (section for secret matters) which was already
in the process of dissolution--actually resulted in a curtailment
of his executive powers. Only in a limited field did he receive the
authority to make independent decisions, namely as chief of section
II, which was concerned mainly with educational problems and whereby
Klemm was entitled in personnel matters to propose appointment and
promotion of officials up to the grade of Landgerichtsdirektor and
officials of equivalent rank. In all other fields he was subjected to
the domineering orders of the minister in the same way as every other
official of the Ministry. Although he could call for the report of an
expert and could thus bring a matter to be decided within his sphere,
he was prevented from doing so if the minister himself reserved the
final word for himself. Through presentation of my evidence it will be
made clear how Thierack, because of his previous career, directed his
interest, perhaps his only interest, to problems of criminal law and
execution of sentences.
Thus, we will recognize that the above-mentioned main sections of the
Ministry were only formally under the jurisdiction of Klemm and that no
change “in the line of the direction of justice,” as Thierack expressed
it in a discussion of the section leaders on 7 January 1944 (_NG-195,
Ex. 45_) resulted from the appointment of a new Under Secretary.
It will be proved through the evidence how little the Under Secretary
could care for other sections, and that because of the external
circumstances, as for instance the evacuation of whole sections from
Berlin, he was only rarely present at conferences with the minister or
was left out intentionally.
(_e_) This limitation of the tasks of the under secretary through
the organization was furthered through the personal qualities of
the Minister, Thierack. A picture of Thierack will result from the
documents and the statements of witnesses. He was an autocratic,
brutal, and even a rude person. He pursued his views and objectives
with remarkable stubbornness. Accordingly, he was hardly to be
persuaded from an opinion once formed. He tolerated no one next to
himself in his struggle for power. For such a person it must have
been easy to suppress such a soft and yielding personality as Klemm.
Thierack was not interested in problems of the jurisprudence in
concepts of law. He thought that he was a politician and merely a
practitioner of the administration of justice. The contrast in the
characters had an especially unfavorable effect on Klemm’s method
of working since Thierack thought he could treat Klemm merely as an
official dependent on him personally. That resulted from the previous
personal relations of the two men. When Thierack filled the post of
Minister of Justice for Saxony immediately after the seizure of power
by the NSDAP, Klemm was his adjutant. When Klemm after many years
again had to come into personal contact with Thierack through his
appointment to under secretary, he was in the opinion of Thierack, not
more than his adjutant again. When he contacted his Under Secretary
Klemm, his manners were just as rough as in his contact with other
subordinate officials. Even in the presence of other officials he
showed tactlessness, and treated him, too, with disdain and certainly
not as a “friend and confidant,” as the prosecution obviously assumes.
Thierack would not attach such weight to an opinion voiced by Klemm as
would have been appropriate because of the latter’s official position.
In my defense plea this personal relationship is of importance, so
that it must also be shown that Thierack was an extremely reserved
person. He disclosed his plans and intentions to nobody before they
were carried out. He kept the most important political-judicial events
and decisions secret even from his under secretary. When he received
the visits of other Ministers, or higher Party and SS officials nobody
else was present as a rule. This was particularly true in his contacts
with Himmler and the people surrounding him, such as Kaltenbrunner. Of
the contents of the discussions Klemm like the other officials of the
Ministry was not informed until a decree of Thierack was published for
the individual sections of the Ministry.
As to the outside Thierack used Klemm only if he considered it
as advisable to emphasize his position as Under Secretary. Thus,
Klemm signed legal decrees not really as deputy of the Minister who
was absent, but only when Thierack thought that he should put his
signature under a document of little significance. Klemm had to sign
the correspondence with other ministries if Thierack preferred this
procedure for reasons of prestige. This is the only reason for the fact
that the so-called directing letters [Lenkungsbriefe] to the presidents
of the Appellate Courts Stuttgart and Hamburg do not bear Thierack’s
name but that of Klemm in spite of the fact that it was Thierack who,
in individual reports, complained about the sentences as being too
light.
(_f_) Starting from this general statement with regard to the
evidence concerning Klemm’s position as Under Secretary, I will have
to discuss in detail the documents submitted by the prosecution and
the statements of the witnesses. Here it will be proved that the main
counts of the indictment have no relation at all to the activities
of my client. Almost all the measures which the prosecution declared
as objectionable, were completed when Klemm took over the position
of Under Secretary. The special regulations against members of
foreign nations were issued, the Jews were already excluded from the
jurisdiction of the justice authorities, the so-called transfer of
asocial “prisoners to the police”--handled by department XV, which
was never subordinated to Klemm, not even formally--was carried
out. My client practically had nothing to do anymore with the Nacht
und Nebel cases. The interpretation of the laws by the courts was
distinctly crystallized; a steady practice had already developed during
the preceding 4 years of war, when the sentences became more severe
because of the conditions caused by the war. The prosecution did not
submit any evidence showing that Klemm during his time in office as
under secretary advocated more severe sentences, especially in cases
of high treason. The award of punishment and the granting of clemency
took place in accordance with distinctly developed standards. In
this connection I will have to demonstrate in detail the proceedings
which developed for the clemency questions in cases where a death
sentence had been imposed. It will be proved that Klemm did not adopt
Thierack’s severity-on-principle [grundsaetzliche Haerte], but that
on the contrary, especially if the absence of the Minister offered an
opportunity, he was inclined to be lenient. Impressive examples for
this fact will be given to the Court from the document book of the
prosecution 3-L, Document NG-414, Prosecution Exhibit 252.
In this connection the opportunity will arise to prove in general
that it is only a mere assertion of the prosecution that the Ministry
of Justice illegally ordered that a death sentence be carried out.
Klemm did not participate in the issuance of directives concerning
the clearing of jails when the enemy approached. These were affairs
which were ordered by the executive department of the ministry (Dept.
V). Evidence will be submitted which will prove that my client had
practically nothing to do with Department V. They will prove that all
decisions in these questions were always made by Thierack, without
consulting his Under Secretary. Concerning the individual case about
the illegal murder in the penitentiary Sonnenburg, the evidence
obtained up to now through the cross-examinations of witnesses will
be supported by additional evidence. It will clearly be shown that
the Ministry of Justice was not responsible for these measures. It
will be seen that Klemm did not know anything about the common plan of
the Reich defense commissioner and the general public prosecutor and
that therefore, he did not have the possibility to prevent that their
intentions were carried out.
By reference to individual cases I will prove that, in accordance with
the plea made by the entire defense the judiciary did not do anything
which made the lynching of Allied fliers who were shot down possible.
The contrary will be proved. It was Klemm who ordered that criminal
proceedings should be started against Germans who had killed Allied
fliers illegally. The disputes with the Party offices with regard to
these orders will be shown. Furthermore, it will be proved that Klemm
saw to it that Germans, who treated bailed-out enemy fliers decently
were protected from subordinated authorities of justice who showed
over-great zeal.
(_g_) When discussing the individual counts of the indictment
I will try to find the basis of the evidence for subsequent legal
considerations. This includes especially the question, whether it can
be at all important for the judging of the facts of a crime, to examine
the actions of a superior Minister in which the subordinate Under
Secretary had also no part. Here the problem will not be the importance
of an order with regard to criminal law, but it will be discussed that
the necessary causal connection is missing. Going further we will have
the opportunity to produce evidence before this Tribunal with regard to
the subjective side.
I will demonstrate that Klemm, due to his conviction that law had to
prevail in the state and due to his generally decent human attitude
interceded on behalf of the law. It will be proved that my client
was held in high regard by his co-workers in the Ministry, that he
tried in many individual cases to mitigate the fundamental harshness
of Minister Thierack who was severe on principle, that he always was
ready to listen to other officials, that he always was ready to accept
sensible suggestions; in general he was thus just the opposite of
Thierack. This attitude also showed results, as will be proved, in the
sphere of personnel policy. On principle he did not give any preference
for positions to so-called “old Party members.” In case of promotions
and appointments he recommended persons who did not belong to the
NSDAP. I shall be able to show cases where he also recommended persons
who were on the other side [gegnerischen Lager], if they had special
professional qualifications. He tried to aid officials of justice who,
for political reasons, were personally in difficulties.
(_h_) Extended fields which Klemm handled in the Ministry of
Justice have not been mentioned by the prosecution. When submitting
evidence I will have the opportunity to show especially that my client
had to spend most of his working time in the Ministry for Department
II of the Ministry. This department handled all questions which were
concerned with the general training of all German jurists. Here the
special difficulties which arose with regard to the personnel of
the authorities of justice on account of the events of the war had
to be surmounted. The evidence will show that my client in training
the young jurists omitted all politics, that his work was absolutely
unpolitical. Thus, the so-called ideological training and examinations
which were very much favored in the time shortly after the assumption
of power of the NSDAP and which found a specially exact expression in
the “Referendar Lager [camp for prospective lawyers] Hanns Kerrl” were
excluded from the professional education of the jurist. At the time
when Klemm, at the beginning of the year 1944, took over his position
in the ministry, all these things had been settled a long time ago.
The most urgent practical problems, where one should get young judges,
when and in what manner young jurists should make their examinations,
how former soldiers were to be treated, and similar questions belonged
to Klemm’s working field. This was practical work, also this field had
nothing to do with “politics.” Thus, if the picture and the activity of
my client will be made clear to the Tribunal, then it will be proved
that it is not a cheap attempt of throwing the blame upon dead persons,
then it will become clear that it has been tried to make my client here
in the dock the deputy of Thierack and perhaps also of Bormann. Klemm
is, however, not responsible for their guilt.
E. Opening Statement for Defendant Rothenberger[76]
DR. WANDSCHNEIDER: May I begin my opening statement? At the
beginning of my opening statement I want to say a few words about the
task of the defense as I see it.
_I. The task of the defense_
With the presentation of its theory of proof [Beweistheorie], the
defense really starts its task in this trial. It is confronted with an
indictment presented in the name of the world community against the
justice officials in National Socialist Germany and referring to the
moral conscience of just this world community. This situation requires
a few words about the duties and position of the German defense in this
trial. It is a cheap trick, if Germans now, subsequently, _merely
because the National Socialistic State_ has collapsed, declare very
simply and without resistance that Hitler was “not right,” and if
these same Germans during the National Socialist regime, completely
renouncing their own attitude and personality, were opportunists and
cooperated with the entire National Socialist Policy with just as
little resistance. Such a confession on the part of the defense, which
would be considered suitable only _because_ the sentence of the
International Military Tribunal established the amoral character of
national socialism, would also be a cheap trick and valueless. Opinions
are not formed on the basis of outward conditions, but on the basis
of one’s own knowledge. Of course, we do know on the basis of our
knowledge that under national socialism the basic rights and worth of
the free individual and of the human community whose interests are
inextricably bound together became corrupt and were destroyed and
that is, by misuse and waste of the most valuable sources of power
of the German nation itself and of other non-German nations. Only
self-recognition, self-education, and efficient responsible cooperation
of all members of a community lead to a really democratic way of life
and state.
The above statements which were made in order to be honest and above
board have not been made from the standpoint of any disinterested
neutral third party. How could a German defense counsel be inwardly
untouched by the arguments of the prosecution, regardless of whether
and to what extent he, as a German, considers himself “guilty.” In view
of the fact that the German people were entangled into error, misery,
and guilt, should he not feel even more that he is one of them, and
should he not try to gain that which cannot be lost--self-reflection,
principles, and dignity. The defense wishes to thank the Tribunal for
having given it full opportunity to represent the interests of its
client in this spirit during this trial.
_II. Criminal facts of the case according to the indictment;
conspiracy and the individual facts of the case concerning war
crimes and crimes against humanity_
Dr. Rothenberger is charged with the crime of conspiracy, committing
war crimes and crimes against humanity. According to the prosecution,
the same concrete facts form the basis for the last two charges. In
like manner, the charge of conspiracy is connected with the planning of
the afore-mentioned war crimes and crimes against humanity. The facts
presented by the prosecution to prove these crimes are in accordance
with the IMT judgment only relevant from the penal point of view since
the beginning of the war. We are concerned with the following facts:
_Numbers 9 and 21 of the indictment_--Use of the Special Courts
and the People’s Courts for the oppression of political enemies.
_Numbers 10 and 22 of the indictment_--Participation in the
discussion between Himmler and Thierack of 18 September 1942.
_Numbers 11 and 23 of the indictment_--Sentencing and execution of
Germans and non-Germans for high treason.
_Numbers 14 and 26 of the indictment_--Illegal execution.
_Numbers 16 and 28 of the indictment_--Preferential treatment
shown Party members who are to be punished and collaboration in the
introduction of the special penal law for Jews and others.
_III. Nonexistence of a conspiracy on legal grounds_
Before starting to discuss the basis for the above charges in the
indictment, it seems fitting to treat briefly the question of
conspiracy. From a legal standpoint, attention must be called to the
fact that according to the statute of the London Treaty, as well as
the Control Council Law No. 10, the conspiracy, or plan, can only be
considered as a crime in itself if it concerns a crime against peace
but not if it concerns a war crime or crime against humanity. This
viewpoint was maintained also by the IMT in trial No. I.
_IV. The general circumstances of the case which form the basis
for the charges of the indictment_
1. _Memorandum of Dr. Rothenberger_--In its opening statement
against Dr. Rothenberger the prosecution called particular attention to
his memorandum to Hitler for the year 1942 and entered it as Document
NG-075, Prosecution Exhibit 27. The prosecution characterized this
as a “peculiar document” and commented upon it from its own point of
view. The defense will also have to analyze the memorandum minutely
and discuss in detail its previous history and what has happened to
it. It appears that the chief problem here is the basically important
question of the dominating position of the judge in the life of a
nation. The appointment of Dr. Rothenberger as Under Secretary can be
traced back to this memorandum, the character of which is clearly open
to a psychological judgment. Naturally the reasons for his appointment
will have to be discussed in greater detail. The memorandum presents
therefore the very first of those important developments which put Dr.
Rothenberger in the defendant’s dock in Nuernberg.
2. _Dr. Rothenberger’s reaction to the Hitler speech of 26 April
1942_--The prosecution has further produced against Dr. Rothenberger
his report on conditions to the Reich Ministry of Justice, dated 11 May
1942, as Document NG-389, Prosecution Exhibit 76, which describes the
reaction to Hitler’s speech of notorious fame, dated 26 April 1942.
The prosecution blames him for the measures taken after the Hitler
speech, just as for the corresponding measures of autumn 1942. It will
therefore be the task of the defense to show how the measures taken by
Dr. Rothenberger in 1942 following the Hitler speech were meant, and
what was their effect.
The documents specified under this as well as the previous number, in
fact in the opinion of the defense, touch upon crucial questions of
the whole trial; namely, the place of the judiciary in the National
Socialist state. They require therefore a full description in the
presentation of evidence by this side.
3. _Dr. Rothenberger’s ideas on reform_--Dr. Rothenberger failed
with the plans for reform contained in his memorandum. It may also
be conceded that they were bound to fail, by virtue of a historical
necessity. However, that is not the point, but rather to demonstrate
that Dr. Rothenberger exerted himself again and again to the utmost
for the preservation of the foundations of justice, in particular for
an independent judiciary, and used all his strength to that end. The
defense will clearly show that in the case of his discharge after
he had served only 15 months as Under Secretary, not personal but
decisively factual differences were at stake, on account of which Dr.
Rothenberger was no longer acceptable to the rulers in the Third Reich.
4. _Dr. Rothenberger’s personality and career from the prewar period
and into the Second World War_--The above events falling directly
within the war period, become fully understandable only by showing
the development of Dr. Rothenberger’s personal and professional
circumstances before the war. It will be demonstrated that even before
1933 he was a professionally able lawyer, interested solely in civil
law, energetic and conscious of his responsibility. It will further
be shown that after 1933 he succeeded in having his proposals for a
constitutional state adopted in Hamburg. He did become involved, in
constantly growing opposition to radical Party circles and to the SS,
especially after the outbreak of the war.
All the facts of the case expounded above under IV are legally relevant
from the viewpoint of war crimes and crimes against humanity, as well
as from that of conspiracy; they are therefore presented with reference
to all charges against my client.
_V. The various facts of the case in the order of the indictment
and the position taken with regard to them_
All the charges made against Dr. Rothenberger have to do with the field
of criminal law and administration of punishment. It will be shown by
the prosecution’s own documents and by further evidence, that Minister
of Justice Thierack reserved for himself all matters of criminal law
and criminal law procedure as well as of administration of punishment,
and accordingly by the exclusion of Dr. Rothenberger, placed
Departments III, IV, V, and XV of the Ministry under his own direction.
Dr. Rothenberger, therefore, neither had influence on the whole field
of criminal law nor was he responsible for it. Neither Special Courts
nor the People’s Court, neither general public prosecutors nor any
sort of criminal courts nor prisons were under his direction. The
description of Dr. Rothenberger as successor of Freisler in the opening
statement on page 64 of the German translation is therefore incorrect
and an error. Without question, the entire criminal law was under the
direction of the latter as Under Secretary, which from the beginning
was not the case with Dr. Rothenberger.
1. _Concerning numbers 9 and 21 of the indictment_--According
to the above general statements, therefore, Dr. Rothenberger did not
cooperate in the improper use of the Special Courts and the People’s
Courts for the suppression of political opponents.
2. _Concerning numbers 10 and 22 of the indictment_--On 18
September 1942 an agreement was reached between Himmler and Thierack
which according to a file note by Thierack, among other things,
provides for the delivery of criminal prisoners to the SS for the
purpose of “extermination by work” and for the transfer to Himmler of
criminal justice in cases concerning Jews, Poles, etc. It will be shown
that Dr. Rothenberger did not take part in the discussion of these
points, was not responsible for them, and had no knowledge of them at
that time.
3. _Concerning numbers 11 and 23 of the indictment_--Dr.
Rothenberger never took part in the sentencing of political opponents
for high treason. If the prosecution takes the view that nonexercise
of the right of clemency after valid sentence applies, then in the
cases in question with which Dr. Rothenberger dealt in the absence of
Minister Thierack, an opinion having regard to factual and legal points
will be given.
4. _Concerning numbers 14 and 26 of the indictment_--Insofar as
the four executions which took place erroneously on 8 September 1943 in
Ploetzensee, may be referred to by the charge of illegal executions,
Dr. Rothenberger’s lack of responsibility will be demonstrated by the
documents of the prosecution and by further evidence.
5. _Concerning numbers 16 and 28 of the indictment_--Dr.
Rothenberger had no share in the preference given to Party members
in clemency proceedings, as is also established on the basis of the
documents of the prosecution. Nor did he take a responsible part in
depriving the Jews, and others, of their civil rights [Entrechtung], as
will be shown in detail.
_VI. General aspects of criminality_
To understand the line of reasoning on which this presentation of
evidence is based, attention is called to the following general
criminalistic points of view which in themselves of course are known to
the Tribunal. If, nevertheless, they are emphasized here, it is because
the Tribunal is confronted with the extraordinarily difficult task of
having to form a judgment of events, people, and mental processes from
a world of thought which is alien to it.
1. _Limited sphere of activity of individuals under a dictatorial
regime_--Undoubtedly it is a characteristic of a dictatorial regime
that the great majority of the population sinks into more than average
passivity and paralysis of responsibility, in contrast to a democracy
where the average citizens, too, the majority of the population,
display a far greater initiative out of the practical experience of
their liberty and their own sense of responsibility. However, it is a
certainty that the few, who, under such a regime stand in opposition
to the rulers, thereby doing something which in a democracy would
carry no risk worth mentioning, thus risk their lives and liberty.
Consequently, it is not possible to do justice to the circumstances
involved, if one minimizes the courageous actions of individuals in
a dictatorial system by inept comparisons with conditions obtaining
in a democracy. It is obvious, that the question to which degree an
individual had the power and opportunity in a police-state system
to call a halt to developments felt by him to be wrong, must in all
fairness be judged by other standards.
2. _Necessity of individual method of observation_--A dictatorship
blurs, especially to the foreign observer in a completely inconclusive
manner the actually existing, great individual and basic differences,
on account of the “coordination” which to begin with was effected in
the exterior sphere. Thus, for example a German or Frenchman will
hardly succeed in picking out one Chinese face out of a crowd of
Chinese. One looks just like another. For that reason it is the more
imperative to take into consideration the individual personality and
its historic as well as geographical background, like that which
binds Dr. Rothenberger to the Hanseatic tradition of the old trading
and harbor city of Hamburg; the more inapplicable generalization and
standardization may lead to misjudging the specific importance of a
personality and the particular nature of his work.
3. _Methodical ineptness of a retrospective view_--Evaluation
from the point of view of criminal law is concerned with the possible
participation in the commission of a criminal act and the possible
personal guilt. It is decisive for judging a person’s guilt to
establish whether he shared in and had knowledge of the crime and
whether he is conscious of it; so for instance in the case of the
conspiracy which is alleged to have existed since 1933, knowledge of
the criminal development of national socialism since that time is
decisive. In spite of some disappointments and bad experiences in
individual cases surely none of the defendants considered the National
Socialist development in principle and as a whole as criminal, nor was
he necessarily compelled to do so. It is not intended to question the
statements of the IMT about the destructive development of the NSDAP,
which according to article X of Ordinance No. 7, are binding until the
contrary is conclusively proved. Nevertheless, it so happened that the
National Socialist era produced a number of events and institutions
which were either politically indifferent or even appeared as the
expression of peaceful reconstruction; they were not mentioned in the
findings of the IMT. Public opinion, however, was formed on the basis
of those manifestations. Questions such as the revival of trade,
the construction of Autobahnen [super highways], the elimination
of unemployment, the creation of great social institutions, as for
instance the National Socialist Public Welfare Association (NSV) and
the Winter Relief Scheme (WHW), continuously, year in, year out, were
in the limelight with the German public and overshadowed everything
else, not to mention events in the field of foreign policy like the
Anglo-German Naval Treaty, international sport events such as the
Olympic games, etc. The greater part of the population, even the
educated classes, were not aware that unemployment was only eliminated
by an ever more formidable increase of the economic capacity for the
purpose of the coming war, and that the donations and subscriptions
which the people collected by hard work for their social institutions,
disappeared in the gorge of rearmament. Did not Hitler’s protestations
that the construction of Autobahnen was to be considered proof of
Germany’s peaceful intentions of reconstruction, and not as the
expression of militaristic mentality, sound entirely convincing in view
of the fact that should it come to the point these same Autobahnen
would operate strategically to Germany’s disadvantage which actually
did happen?
By his systematic and indubitably extremely cunning propaganda policy,
Dr. Goebbels brought about step by step a constantly increasing
isolation from foreign countries which made it more and more impossible
to form a truly objective judgment about other countries and questions
of foreign policy. It is true, treaties with foreign countries were
heralded with much publicity as proof of the desire for amicable
cooperation with other nations. Considering these circumstances, were
men, even those in higher positions, as for instance, Dr. Rothenberger,
who did not have the slightest insight into matters of foreign policy,
to show less confidence in the National Socialist leadership of the
state than evidently was manifested by the foreign statesmen who
concluded treaties with the Third Reich. Suspicious events were not
discussed by the press and the public and thus escaped public attention
and judgment to a large extent. Insofar as dangerous practices of
national socialism were still discernible in domestic and foreign
policy, they never appeared as naked facts before the German public
as is stated by the IMT verdict but were exhaustively “disguised” in
comments rendered harmless or even excused and justified as the results
of alleged intrigues by the opposing camp.
Without wishing to deny that there exists a certain predisposition
on the part of the German people for the reception of authoritarian
wisdom, bad though it may often be, one cannot get around the fact,
that, based on the circumstances described above, the process by
which Germans, even those on a higher level, arrived at an opinion and
judgment, of necessity moved and was bound to move along certain lines.
The question as to knowledge of certain criminal acts and developments,
or better yet, the question as to recognition of the criminality of
certain acts and developments can therefore be judged psychologically
correctly only on the basis of all the conditions and contexts
prevailing at that time. That applies particularly to wartime, which
in all countries produces special exigencies and places the strongest
emphasis on certain desirable facts while suppressing undesirable ones.
Retrospective observation which, in examining facts, does not put
itself into conditions existing at that time, projects into the past,
knowledge and opportunity of knowledge gained later. Applied to this
trial, the above-named method imputes to the defendants a knowledge, an
awareness of the criminality of circumstances, which they did not have
at that time and makes demands on their faculties of perception which
they could never have satisfied under the circumstances then prevailing.
_VII. Principles of the constitutional state: “nulla poena sine
lege,” “nullum crimen sine lege”_
The inner connection between the afore-mentioned train of thoughts
and the principles _nulla poena sine lege_ and _nullum crimen
sine lege_ is obvious. The question is whether facts constituting
criminality were created after the war by the Charter of the London
Agreement and the Control Council Law No. 10 which, in violation of the
above principles, are applied retroactively to previous acts, which at
the time of commission did not constitute criminal acts. The resulting
cardinal problem will be discussed by the defense.
_VIII. Conclusions_
The great and famous American judge, Oliver Wendell Holmes, said in
1896, “The real reason for a decision are considerations of a political
or social nature. It is erroneous to believe that a solution can be
found solely with the aid of logic or general legal doctrines which no
one contests.” (Quoted from quotation in “Majority Rule and Minority
Rights” of Henry Steele Commager, page 46 of the German translation.)
The defense can but concur in these words. The defense requests that
consideration be given to its train of thoughts as derived from this
attitude, and stated in VI, 3, which are the corollary of similar
thoughts of the prosecution, without the Court having to fear a
misunderstanding concerning the above quotation.
F. Opening Statement for Defendant Lautz[77]
DR. GRUBE: May I begin my opening statement? The prosecution
in its arraignment of Lautz has obviously started from three wrong
suppositions. The first erroneous supposition was that Lautz evidently
was confused with the Ministry official Letz and therefore it was
erroneously assumed that Lautz had also been working in the Reich
Ministry of Justice. Only thus can it be explained why in several
counts of the indictment with which the prosecution is expressly
charging the Reich Ministry of Justice only, Lautz also is mentioned. I
do not want to lose myself in details. That the defendant Lautz never
worked in the Reich Ministry of Justice has been proved without a doubt
by the evidence submitted so far. But I shall furnish further proof
that Lautz did not take part in any of the measures, with which the
Reich Ministry of Justice is charged.
The second erroneous supposition from which the prosecution sets out
is the assumption that there was only _one_ chief Reich public
prosecutor [Oberreichsanwalt], viz, defendant Lautz. The evidence
taken so far has shown that beside the chief Reich public prosecutor
of the People’s Court, viz, defendant Lautz, there was still another
chief Reich public prosecutor, viz, the chief Reich public prosecutor
of the Reich Supreme Court. It is due to this error on the part of
the prosecuting authority that matters have been made the subject of
this procedure with which defendant Lautz had nothing to do. It is
the nullity plea for instance of which I am thinking here; I shall
prove in the course of my submission of evidence that this nullity
plea could be filed only by the chief Reich public prosecutor of the
Reich Supreme Court and not by the chief Reich public prosecutor of
the People’s Court. It is due to the same erroneous supposition on the
part of the prosecution, according to which there was only _one_
chief Reich public prosecutor, that in the “information on the outlines
of the German judicial system,” which was submitted by the prosecution
at the beginning of the trial, it is stated on page 5--“The criminal
prosecution in cases before the People’s Court and before the Special
courts, as well as those before the ordinary courts, lay in the hands
of the chief Reich public prosecutor. Defendant Ernst Lautz was chief
Reich public prosecutor.” I shall prove in the course of the evidence
to be submitted by me that defendant Lautz was not a superior official
to the public prosecutors of the Special Courts and other courts and
that he was not competent for the criminal prosecution before these
courts. I shall prove that he had only a quite limited competence,
viz, competence for the criminal prosecution of those crimes for
which the People’s Court was competent, and that he was superior only
in regard to the personnel of the Reich public prosecutors at the
People’s Court. The position of defendant Lautz as chief Reich public
prosecutor at the People’s Court did not differ in any way from the
position of the chief public prosecutors [Oberstaatsanwaelte] at the
district courts. When these two points have been clarified, there
remains of all accusations made against defendant Lautz only the one
accusation of his being coresponsible for the criminal procedure
carried through before the People’s Court. This brings me to the third
erroneous supposition on which the indictment against Lautz is based.
It is the fact that the prosecution in its indictment of Lautz, as
well as the other Reich public prosecutors under indictment here,
obviously started from the assumption that the function and position
of a German public prosecutor are the same as that of the prosecuting
authority in Anglo-American criminal procedure. As will be proved by
the evidence of the defense the position of public prosecutor in the
German criminal procedure as well as the position of the prosecution
in general in European jurisdiction always has been and still is today
fundamentally different from that of the prosecution in Anglo-American
jurisdiction. The evidence will prove that the position of a German
public prosecutor in relation to the law, the Ministry of Justice and
the court in general, as well as his function in individual criminal
trials always have been such that he cannot be made responsible in
criminal law for the sentences and their execution, neither objectively
nor subjectively. The indictment in the case in question is based among
other things on the general principles of penal law, such as they are
contained in the penal laws of all civilized nations. As an example
of this, the prosecution has quoted legal statements by the judges
Stephen and Holmes in its verbal indictment. These legal statements
concerning penal responsibility are not complete however. I shall prove
by further quotations from legal statements by these two judges, that
also according to Anglo-American conceptions the German prosecutor is
not responsible before criminal law for the sentences, provided one
starts from the position which the public prosecutor always held in
relation to the law, the Ministry of Justice and the court, and from
the functions which he carried out in accordance with German law at
all times in individual criminal trials. Although I am convinced by
virtue of this legal position that defendant Lautz cannot be made
responsible before criminal law for the sentences pronounced by the
People’s Court, I shall, nevertheless, help to prove by my submission
of evidence that the People’s Court was an unobjectionable institution;
that any trial before it gave the defendants every guaranty of justice;
and that the sentences of the People’s Court and their execution did
not constitute any violation of international law, of the general
principles of penal law, or of article II of Control Council Law No.
10. I furthermore shall prove that defendant Lautz had nothing to do
with penal administration. It will be proved that the institutes for
penal administration were not subordinated to him and that he had no
possibility of influencing them or penal administration in any way.
G. Opening Statement for Defendant von Ammon[78]
DR. KUBUSCHOK: May it please the Tribunal. The prosecution
has submitted no evidence connecting the defendant von Ammon with
paragraphs 10, 16, 22, and 28 of the indictment. The defense will
therefore deal only with the count concerning the NN matters while
disputing the legal admissibility of the accusation of conspiracy.
The defense will explain the origin and the legal basis of the NN
regulations. It will be shown that the legal authorities participated
in the work on the NN matters only to such an extent and so long as
they were delegated to do so by the competent Wehrmacht authorities.
As regards the participation of the defendant von Ammon in this
department which has been allocated to him in the course of the
allocation of duties in the Ministry, the following will be dealt
with: von Ammon’s position as an expert, who was subordinated to the
subsection chief, Ministerialdirigent Mettgenberg; section chief at
first Ministerialdirektor Crohne, later Ministerialdirektor Vollmer;
Under Secretary, at first, Freisler and later Klemm; and lastly
the Minister himself. If, therefore, von Ammon only ranked fifth
in seniority, then this fact determines also his authority to sign
and his actual responsibility. All important matters required the
signature of, at least, the subsection chief, in most cases that of
the section chief. We therefore find that none of the letters from the
Reich Ministry to another office, which have been submitted by the
prosecution, were signed by von Ammon.
I shall prove that von Ammon did not participate in drawing up the
basic legal regulations. Thus, the legal argument arises whether a
person who has merely to carry out administrative tasks without thereby
causing a wrong to be done in the sense of sufficient causality by this
activity itself, bears a criminal responsibility for this.
I shall describe how the NN proceedings were carried out and shall show
that no special regulations were issued restricting the proper trial
beyond the secrecy decreed by law. As can be seen from the circular of
6 March 1943, Document NG-269, Prosecution Exhibit 319[79] submitted by
the prosecution, care was taken that the prisoners did not forego their
otherwise customary rights, as long as the purpose of this secrecy
was not endangered. I shall disprove the view of the prosecution that
persons who had obviously not committed any act of resistance, were
treated in the same way as guilty NN prisoners. I shall explain that,
on principle, the Wehrmacht authorities in the occupied territories
handed over only such cases to the legal authorities in Germany where
the evidence was materially complete, as the witness Lehmann testified
earlier. It will be proved that even where the innocence of the
prisoner was established only in Germany, there was the possibility of
being released to the occupied territories.
Evidence will be produced from the proceedings of the courts that
the NN trials were in no way conducted differently from other
trials, except for the restrictions for reasons of secrecy. It will
particularly be shown that the difficulties in procuring evidence
from the occupied territories favored the defendant insofar as he was
protected by the principle of _in dubio pro reo_, i. e., the
defendant had to be acquitted in case of doubt where the evidence in
support of the indictment was incomplete. I shall endeavor to give a
summary of the sentences given in actual practice.
In regard to the handing over of NN prisoners to the police, no
responsibility can be attached to the defendant von Ammon for
participation.
Documents will prove that the defendant von Ammon always showed a
tendency towards leniency, considering the prevailing circumstances and
the extent of his competence. This will also be clearly in keeping with
the whole personality of the defendant. We shall find him an official
who entered the ministerial career solely on the strength of his expert
knowledge immediately after he passed his legal examination with
special distinction, the type of man with a sense of duty who lives
only for his work. Von Ammon was not an active National Socialist, this
is confirmed by his entering the Party only in 1937, comparatively late
for a ministerial official. I shall produce testimonials characterizing
the defendant as a deeply humane and strictly religious man. I feel
also that the trial will enable the Tribunal to form their own
impression in this respect. In these circumstances it will have to be
examined all the more carefully whether the evidence shows that this
man is guilty of a crime against humanity irreconcilable with his
character.
H. Opening Statement for Defendant Rothaug[80]
DR. KOESSL: May it please the Tribunal. If I correctly
understand the unuttered yet cogent logic of the charges listed in
the indictment, the effect and example of that legal system to which
the prosecution tries to attach the stigma of a criminal government
institution begins with the Rothaug case. The evidence against him, out
of proportion considering the entire framework of the indictment is in
contrast to his mere functional position, based on his activities as
judge and prosecutor.
Although I am aware of the fact that such purely external disproportion
between the importance of the matter on the one hand and the deployment
of means on the other hand, as seen from a higher point of view, may
cause a shifting of the focus in the eyes of a superficial observer,
I am however certain that the desire for a true and just sentence
will prevent the overlooking of the limitations and degrees of
responsibility.
Yet the direction of the main thrust of the prosecution has become
rather clearly discernible by the few submitted documents, out of
thousands of files. We face it with a clear conscience, calm and
courageously, for documents do not lie.
What distresses us is the evidence submitted in order to impress and
otherwise help the main thrust, evidence which has been available in
accessible localities and without difficulties, with incriminating
tendencies, sometimes even willfully incriminating, and which
has offered in hundreds of variations and superlatives an almost
unfathomable jungle of assertions, estimates, and opinions.
The mobilization of this evidence compels us to handle the most
enervating and tedious detail for truth’s sake.
I expect to relieve us of much of this wearisome detail by first
treating and solving problems, touched upon by coarsening efforts,
misrepresentations, distortions, and half-truths in their entirety and
from the broadest viewpoints possible.
At this point in the proceedings, I do not wish to put to the fore
legal questions within the framework of the defense, such as the
concept of conspiracy or the subjective fact and the confines of the
crimes against humanity.
On the other hand, it will be unavoidable within the frame of the
producing of evidence to convince the court that the entirely
individual biased power position between the state on the one hand and
the individual judge or prosecutor on the other hand in accordance
with the regulations governing German civil servants allows no scope
in the field of the application of the law for a simultaneously
existing intellectual alliance in the sense of a conspiracy, but that
a connection of this power position, in full knowledge of its legal
nature, with a simultaneous assumption of a conspiracy would mean a
contradiction in itself. Here it becomes necessary to prove that the
activity of a judge at the Special Court or a Reich public prosecutor
is limited to the application of the law which is based on the official
Reich legislation in the field of criminal law. I shall demonstrate
that this Reich legislation in all its harshness has, in its purpose,
neither lost nor limited its character of purely criminal law and that,
on this point, it has not been misinterpreted as clearly proved by the
literature on the subject and the jurisdiction by the supreme judicial
authorities and others.
Here must be proved a fact evident in itself, namely that judges and
prosecutors in the same position as Rothaug were never and in no
context expected to have objects alien to the field of criminal law in
carrying out their official duties.
Records of sentences already submitted and others still to be submitted
will prove that this had in no way been intended.
This touches on the legal question, whether official functions resting
on the official Reich legislation which, up to this very moment, is
covered in international law by the principle of nationality and
sovereignty, functions which were carried out in public, may be
conceived as actions of persecution on racial, religious, or political
grounds and may be treated as being on the same level as actions which
were carried out secretly and without control, and which could be
recognized as wrong already by their cruelty and severity by every
person concerned as offending against justice and law.
Here, I wish to convince the Court that offenses of the latter kind,
if they ever did happen within the legal sphere could and should only
be known to the immediate participants but not to persons who held
positions like the defendant Rothaug.
In the concrete reflection on the relationship to the law of the
position of judges and likewise prosecutors, it is of decisive
importance to elucidate in public law that the German judge, under
any regime, had merely to examine whether a law had been announced in
accordance with rules and regulations whereas an examination from other
points of view was outside his jurisdiction. In this context it is
further necessary to elucidate the significance and import of the judge
being subject to the law and the meaning of a sentence in the sense of
German public law especially in relationship to the legislative and
executive power in an authoritarian state, thus to the governing power.
Here we cannot omit to clarify the basic legal principles and
corresponding regulations which determine this relationship or to
prove the practical application based on files. Thus, the question
of the judge’s subjection to the law calls for a clarification of
the consequences on his task resulting thereof. It necessitates the
recognition of the law as a form of expression of justice, as part
of the legal system and as immediate emanation of the ruling state
doctrine at any given time, as well as the recognition of the judge’s
actual position in this legal system. Therefore, it is also necessary
to show in a condensed form the general basis and principle of the
legal doctrine which since 1933 was decisive for the German judge in
establishing the intentions of the law in a concrete individual case.
The accusations which have been made in general or in individual cases
concerning Rothaug’s method of handling proceedings or which have
been connected with such proceedings become meaningless or lose in
importance if their explanation is tackled in general from the angle of
the correct basic procedure regulations or from the available records
of individual proceedings. This leads, as a matter of course, to a
basic discussion of the individual cases which have been particularly
stressed by the prosecution, and which lie in the direction of the
prosecution’s main thrust. No one knows better than the judge the
human inadequacy and fallibility because by the very nature of his
profession he deals with that aspect of life. Thus, he would be the
last to believe himself immune from human error, least of all at a time
of intellectual revolution and under the effect of the very highest
wartime pressure. Nevertheless, I beg the Tribunal not to think me
presumptuous if I try to prove that the sentences pronounced by the
Special Court at Nuernberg were in keeping with the basic principles
of jurisdiction of the Reich courts, and that among thousands of cases
only very rarely one has been successfully contested or otherwise
amended.
In this connection, one could discuss the outward development of
the judgment and all those legal questions allegedly discussed in
individual cases or in general in Rothaug’s circle during the course of
6 years.
The submitted records of individual proceedings provide plenty of
opportunity to form an opinion on all individual questions thrown up
by this trial especially on the aim of judicial activity, the sentence
in its relationship to the requirements of the proceedings and its
assailability in the interest of legal security, from which it will
clearly emerge that the sentence, even that of the Special Court, was
only an intermediate and by no means the final stage of the work of
ascertaining justice either when finding the defendant guilty or when
pronouncing the sentence. Thereby it may be possible too, to clear up
the linguistically unfortunate term of “psychological producing of
evidence” which has found its way into this trial. Thus, the legal and
psychological task of the presiding judge in accordance with German
criminal law will have to be explained, and it will have to be shown
how Rothaug confronted his task, solved it in the practical legal
procedure, and which objections he had to face in connection with the
results of his work by departments which in the course of their own
duties had to examine, control and, if necessary, correct.
Furthermore, it will be my task to prove that in Rothaug’s official
working sphere without exception all defendants without consideration
of nationality, national origin, or race, were granted the same legal
guaranties as any German according to German criminal law, thus that
no case was treated as an exception to the general rule, that this
was also done in all proceedings against Poles, who apart from one
outstanding case bearing a special character, were the only foreigners
against whom Rothaug proceeded.
This, generally and in particular, touches upon the problem which
determines the judge’s and the prosecutor’s position to the legislation
for Poles from an objective legal point of view, of which have to be
discussed the actual and legal basis and aspects from and through which
the German judge and prosecutor whether in the North, South, East, or
West, had to view matters under the spell of the German legal doctrine.
Here the greatest importance has to be attached to the kind of offense
in question, the place of the crime and last, but not least, the
question whether these Poles had really been deported and had not
voluntarily, accepting certain conditions, placed themselves at the
disposal of the German war power.
In this context, we cannot omit to discuss the principles which the
highest judicial authorities have pronounced in connection with this
whole complex. Here I must leave the justification of the legislation
as such to others who are responsible for it.
To this, from a psychological viewpoint, belongs the discussion of
Rothaug’s actual basic attitude toward the Jewish problem in order to
do away with all insinuations which have willfully and on purpose been
made during this trial by persons who seem to have cause to stress and
demonstrate their innocence in this connection by calling “catch the
thief.”
Another complex fitted into the direction of the main thrust of the
prosecution is Rothaug’s alleged political power position, inflated so
as to appear almost like a myth, which to begin with is supported by an
assertion which is the object of count four of the indictment. I shall
prove that Rothaug’s duties did not extend beyond the professional
organization of the Rechtswahrerbund and that, beyond that, he held
no political post, and that in particular he did not belong anywhere,
at any time, and in any function to the so-called corps of political
leaders.
In this I shall take special care to reduce the case Doebig which has
been brought into this context for the purpose of substantiation, to
the proportions it deserves in the knowledge of the true facts of the
case, as we ourselves feel urged to clear Rothaug’s real relationship
to the Security Service (SD) as expressed in its principles,
development, contents, and Rothaug’s inner attitude to it down to
minute details.
Especially here as in all positions where the witnesses are interested
in a certain presentation of conditions, we are fully conscious of the
difficulties, and we know how easy it is today to find witnesses who by
incriminating statements are given the chance to clear themselves. On
the other hand, bearing in mind the totality of present psychological
conditions it is difficult to find a person who would be prepared to
stand up for truth’s sake if he were asked to do so for a person who by
reason of biased evidence has been publicly defamed in such a manner
that it has given rise to the fear of becoming involved in the greatest
difficulties by confessing to a mere acquaintance with Rothaug. Because
Rothaug’s political power position has extensively been brought in,
in an attempt transparent to our eyes, to reduce the responsibility
of others, he feels pressed to clarify his real relationship to his
collaborators and the prosecutors within his sphere of work minutely
and in its totality in its official and personal aspect irrespective
of whether it concerns Rothaug’s official or unofficial statements,
his alleged relationship to Streicher, Holz, and Zimmermann; his
actual relationship to Haberkern, the “Blaue Traube” [Blue Grape],
the mysterious “Stammtisch;” his “TeNo-Rang” [rank in Teno[81]];
his attitude toward the judicial administration, his “recording
section” [Schallplattenbetrieb] in alleged spectacular proceedings;
or his representation of the devil on earth. In all these matters and
questions we have but one aim--To restore the truth in all its glory,
for only in truth can we see the way which honorably and serenely will
lead us out of this endangered vital position.
IV. GENERAL DEVELOPMENT OF GERMAN LAW DURING THE NAZI PERIOD
A. Introduction
Throughout the trial and in the judgment of the Tribunal, references
were frequently made to various laws and decrees issued during Hitler’s
Third Reich. Some of these laws and decrees were introduced by the
prosecution, some by the defense, and some by both the prosecution and
the defense. Most of these laws and decrees are relevant in connection
with more than one of the principal issues of the case. Hence, with
respect to laws and decrees selected for publication herein, it has
often been difficult to decide where a particular law or decree should
appear within the sections of this volume. To reduce the complexity
of this matter, more than 30 laws and decrees have been reproduced
together in the chronological order of their promulgation. (Section B,
“Selected Laws and Decrees, 1933–1944.”) A number of other laws and
decrees appear in the later sections of the volume. In a further effort
to reduce the difficulties inherent in this situation, cross-references
by way of footnotes have often been made to laws or decrees mentioned
in the documents and in the testimony.
Since the main issues of the case involved the organization and
administration of justice in the Third Reich, it was also thought
appropriate to include early in the volume some general materials
on the organization of the Reich Ministry of Justice and the German
judicial system (sec. C). First appears a brief excerpt from the
testimony of the defendant Mettgenberg concerning the position and
responsibility of leading officials in the Reich Ministry of Justice
(sec. C1). This is followed by parts of a “Basic Information” of
justice (sec. C2). This “Basic Information” was submitted by the
prosecution at the beginning of the trial not as evidence, but rather
as an aid to the understanding of the evidence later submitted. The
parts reproduced herein include a “Summary of the organization of
the administration of justice in Germany” and two charts purporting
to show graphically the structure of the regular and extraordinary
courts and the main positions held by the defendants in the over-all
administration of justice. The next following materials are all
contemporaneous documents, principally laws and decrees, concerning
the establishment and functioning of the Special Courts (sec. C3), the
People’s Court (sec. C4), the hereditary health courts (sec. C5), and
civilian courts martial (sec. C6).
These materials on the general structure and organization of the
administration of justice are followed by extracts from the testimony
of the defense expert witness, Professor Jahrreiss, whose testimony
dealt comprehensively with the development of German law and
justice from a period far antedating the Nazi regime (sec. D). This
section concludes with extracts from the testimony of the defendant
Schlegelberger, under secretary (Staatssekretaer) in the Reich Ministry
of Justice (sec. E). In addition to giving a leading defense point of
view concerning general legal developments during the Hitler regime,
this testimony introduces a number of the leading figures who played a
role in the administration of justice and whose names frequently arise
in the later appearing documents and testimony.
B. Selected Laws and Decrees, 1933–1944
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112[82]
[Also Schlegelberger Document 91
Schlegelberger Defense Exhibit 84][83]
DECREE, 28 FEBRUARY 1933,
BY REICH PRESIDENT VON HINDENBURG, COSIGNED BY REICH CHANCELLOR
HITLER AND REICH MINISTERS FRICK AND GUERTNER, SUSPENDING
CONSTITUTIONAL RIGHTS AND INSTITUTING OTHER MEASURES[84]
1933 REICHSGESETZBLATT, PART 1, PAGE 83
Decree of the Reich President for the Protection of People and State of
28 February 1933.
Pursuant to article 48, paragraph 2 of the German constitution, the
following is decreed as a defensive measure against Communist acts of
violence endangering the State:
Article 1
Articles 114, 115, 117, 118, 123, 124, and 153 of the constitution
of the German Reich are suspended until further notice.[85] Thus,
restrictions on personal liberty, on the right of free expression of
opinion, including freedom of the press, on the right of assembly and
the right of association and interferences with the secrecy of postal,
telegraphic, and telephonic communications, and warrants for house
searches, orders for confiscations as well as restrictions on property,
are also permissible beyond the legal limits otherwise prescribed.
[All footnote quotations from the Weimar constitution used in this
volume have been taken from the translation in Select Constitutions of
the World, edited by B. Shiva Rao (Mylapore, Madras, The Madras Law
Journal Press, 1934), page 208 and following pages.]
Article 2
If in a state [Land] the measures necessary for the restoration of
public security and order are not taken, the Reich government may
temporarily take over the powers of the highest State authority.
Article 3
The authorities of the states [Laender] and local communities have
to comply, within their competency, with the orders of the Reich
government issued on the basis of article 2.
Article 4
Whoever disobeys the orders issued by the supreme State authorities
or by the authorities subordinate to them for the implementation of
this decree, or the orders issued by the Reich government in pursuance
of article 2, or whoever solicits or incites others to disobey such
orders, will be punished with imprisonment of not less than 1 month or
a fine from 150 up to 15,000 Reichsmarks, unless other regulations make
his act liable to a more severe punishment.
Whoever, by a violation of paragraph 1, induces a common danger
for human life, will be punished with hard labor, or, in case of
extenuating circumstances, with imprisonment of not less than 6 months,
and, if the violation causes the death of a person, with death, or, in
case of extenuating circumstances, with penal servitude of no less than
2 years. In addition, his property may be confiscated.
Whoever solicits or incites to commit a violation under the
qualifications of paragraph 2, will be punished with hard labor or, in
case of extenuating circumstances, with imprisonment of not less than 3
months.
Article 5
The crimes, which under the penal code are punishable with hard labor
for life, are to be punished with death; i.e., in articles 81 (high
treason), 229 (poisoning), 307 (arson), 311 (use of explosives),
312 ([intentional] flooding), 315 paragraph 2 (damaging of railroad
installations), and 324 (poisoning causing public danger).
Insofar as a more severe Punishment has not been previously provided
for, the following are punishable with death or with hard labor for
life or with hard labor not to exceed 15 years--
1. Whoever undertakes to kill the Reich president or a member or a
commissioner of the Reich government or of a state government, or
solicits such a killing, or volunteers to commit it, or accepts such an
offer, or conspires with another for such a killing.
2. Whoever under article 115(2) of the penal code (serious rioting) or
of article 125(2) of the penal code (serious disturbance of the peace)
commits the act with arms or cooperates consciously and intentionally
with an armed person.
3. Anyone who deprives a person of his liberty under article 239 of the
penal code with the intention of making use of the person deprived of
his liberty as a hostage in the political struggle.
Article 6
This decree comes into force on the day of its promulgation.
Berlin, 28 February 1933
The Reich President
VON HINDENBURG
The Reich Chancellor
ADOLF HITLER
The Reich Minister of the Interior
FRICK
The Reich Minister of Justice
DR. GUERTNER
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
[Also Klemm Document 1.
Klemm Defense Exhibit 1.]
THE “ENABLING ACT”[86]
1933 REICHSGESETZBLATT, PART 1, PAGE 141
Law for the Solution of the Emergency of People and Reich
of 24 March 1933
The Reichstag has decreed the following law, which is hereby
promulgated in agreement with the Reich Council [Reichsrat], after
it has been duly established that the prerequisites of legislation
changing the constitution have been fulfilled.
Article 1
Laws of the Reich can be decreed, apart from the procedure provided by
the constitution of the Reich, also by the government of the Reich.
This also applies to the laws mentioned in articles 85, paragraphs 2,
and 87 of the constitution of the Reich.
Article 2
The laws decreed by the government of the Reich may deviate from
the constitution of the Reich as far as they do not concern the
institution of the Reichstag and the Reich Council [Reichsrat] as such.
The rights of the Reich President remain untouched.
Article 3
The laws decreed by the government of the Reich are certified by the
Reich Chancellor and promulgated in the Reichsgesetzblatt. Unless they
dispose otherwise, they will come into force on the day following the
promulgation. Articles 68 through 77 of the constitution of the Reich
do not apply to laws decreed by the government of the Reich.
Article 4
Treaties of the Reich with foreign countries concerning subjects under
Reich legislation do not require the approval of the authorities
taking part in the legislation. The government of the Reich issues the
ordinances which are necessary to carry into effect these treaties.
Article 5
This law comes into force on the day of its promulgation. It will
become invalid on 1 April 1937; it will further become invalid if the
present government of the Reich will be replaced by another one.
Berlin, 24 March 1933.
The Reich President
VON HINDENBURG
The Reich Chancellor
ADOLF HITLER
The Reich Minister of the Interior
FRICK
The Reich Foreign Minister
BARON VON NEURATH
The Reich Finance Minister
COUNT SCHWERIN VON KROSIGK
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
LAW, 7 APRIL 1933, CONCERNING ADMISSION TO THE BAR
1933 REICHSGESETZBLATT, PART 1, PAGE 188
The Reich government has enacted the following law which is promulgated
herewith:
Article 1
The admission [to the bar] of attorneys who, according to the Law for
the Restoration of the Professional Civil Service of 7 April 1933
(Reichsgesetzblatt, Part 1, page 175), are of non-Aryan descent, may be
revoked before 30 September 1933.
The provision of paragraph 1 does not apply to attorneys who were
already admitted on 1 August 1914 or who, during World War I, fought
for the German Reich or her allies, or whose fathers or sons were
killed in action in World War I.
Article 2
The admission to the bar can be refused to persons, who, according
to the Law for the Restoration of the Professional Civil Service of
7 April 1933 (Reichsgesetzblatt, Part 1, page 175) are of non-Aryan
descent, even though the reasons for this measure provided by the
Attorneys’ Ordinance do not apply. The same applies to the admission,
at another court, of attorneys designated in article 1, paragraph 2.
Article 3
Persons who have undertaken Communist activities are excluded from
admission to the bar. Admissions already granted will be revoked.
Article 4
The administration of justice can suspend the admission of an attorney
until it has been decided whether the right to revoke his admission
according to article 1, paragraph 1, or article 3 will be used or not.
The provisions of article 91b, paragraphs 2 through 4 of the Attorneys’
Ordinance (1933 Reichsgesetzblatt, Part 1, page 120) apply in case of a
suspension.
Attorneys of the kind described in article 2, paragraph 2, can only be
suspended in those cases where article 3 is applicable.
* * * * * * *
Berlin, 7 April 1933.
The Reich Chancellor
ADOLF HITLER
The Reich Minister of Justice
DR. GUERTNER
TRANSLATION OF DOCUMENT NG-1070
PROSECUTION EXHIBIT 439
LAW OF 1 DECEMBER 1933 CONCERNING SPECIAL NAZI PARTY AND STORM TROOPS’
(SA) JURISDICTION OVER MEMBERS OF THE NAZI PARTY, THE SA, AND THEIR
SUBORDINATE ORGANIZATIONS[87]
_Law for the Safeguarding of Unity of Party and State decreed on
1 December 1933_
The Reich government has passed the following law, which herewith is
promulgated.
Article 1
(1) Since the victory of the National Socialist revolution the National
Socialist German Workers’ Party is the bearer of the German State
ideology and merged with the State inseparably.
(2) It is a corporate body under public law. Its statutes are
determined by the Fuehrer.
Article 2
In order to guarantee closest cooperation between Party and SA offices
on the one hand and public authorities on the other hand, the deputy
of the Fuehrer [Hess] and the chief of staff of the SA [Roehm] become
members of the Reich government.
Article 3
(1) Because they are the leading and moving power of the National
Socialist State, the members of the National Socialist German Workers’
Party and of the SA (including their subordinated organizations) have
an enhanced duty toward the Fuehrer, the Nation, and the State.
(2) For violation of these duties they come under a special Party and
SA jurisdiction.
(3) The Fuehrer can rule that these regulations be extended to members
of other organizations.
Article 4
A violation of duty is represented by any action or omission, which
affects or endangers the existence, the organization, the activities,
or the reputation of the National Socialist German Workers’ Party; for
members of the SA (including all organizations subordinated to it)
especially every offense against discipline and order.
Article 5
In addition to the usual disciplinary penalties, terms of imprisonment
and arrest can be imposed.
Article 6
Within the limits of their competence, the public authorities must
render official and judicial assistance to Party and SA--offices which
have been entrusted with the execution of the Party and SA jurisdiction.
Article 7
The law, concerning the right of imposing disciplinary penalties on
members of the SA and SS, decreed on 28 April 1933 (Reich Law Gazette
I, page 230) is repealed.
Article 8
In his capacity as leader of the National Socialist German Workers’
Party and supreme commander of the SA, the Reich Chancellor issues the
necessary regulations for the carrying-out and completion of this law,
especially those regarding the structure and the procedure of Party
and SA jurisdiction. He determines the date on which the regulations
pertaining to this jurisdiction will take effect.
Berlin, 1 December 1933
The Reich Chancellor
ADOLF HITLER
The Reich Minister of the Interior
FRICK
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM THE FIRST LAW FOR THE TRANSFER OF THE
ADMINISTRATION OF JUSTICE TO THE REICH,
16 FEBRUARY 1934[88]
1934 REICHSGESETZBLATT, PART 1, PAGE 91
The Reich government has enacted the following law, which is
promulgated herewith:
Article 1
All courts shall pronounce sentence in the name of the German people.
Article 2
The Reich President exercises the right to quash pending proceedings,
apart from his clemency prerogative.
Amnesties can only be issued by Reich law.
Article 3
Whoever has obtained the qualification to act as a judge, must be
admitted to the bar in each State in pursuance of the existing Reich
regulations.
* * * * *
Article 5
The Reich Minister of Justice is authorized to issue all regulations
which the transfer of the administration of justice to the Reich
requires.
Berlin, 16 February 1934
The Reich Chancellor
ADOLF HITLER
The Reich Minister of Justice, at the same time
for the Reich Minister of Food and Agriculture
DR. GUERTNER
The Reich Minister of the Interior
FRICK
The Reich Minister of Finance
COUNT SCHWERIN VON KROSIGK
The Reich Minister of Economics
DR. SCHMITT
The Reich Minister of Labor
FRANZ SELDTE
The Reich Minister of War
VON BLOMBERG
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM THE LAW, 24 APRIL 1934, AMENDING PROVISIONS
OF CRIMINAL LAW AND CRIMINAL PROCEDURE
1934 REICHSGESETZBLATT, PART 1, PAGE 341
The Reich government has enacted the following law, which is
promulgated herewith:
Part I
In the second part of the criminal code, the first section (articles 80
to 93) is amended as follows):
Section 1
_High treason_[89] [Hochverrat].
Article 80
Whoever undertakes to incorporate, by violence or by threat of
violence, the German territory [Reichsgebiet] in its entirety or in
part into a foreign state, or to detach from the Reich any territory
belonging to the Reich, will be punished by death.
* * * * * * *
Article 81
Whoever undertakes to deprive the Reich President, the Reich Chancellor
or any other member of the Reich government of his constitutional
power, or to force or prevent such a person by violence or threat
of violence or perpetration of a crime or offense, from exercising
his constitutional rights altogether or in a certain sense, will be
punished by death or hard labor for life or hard labor of not less than
5 years.
Article 82
Whoever conspires with another person in a treasonable act (articles
80, 81) is subject to punishment by death, hard labor for life or hard
labor of not less than 5 years.
Whoever contacts a foreign power for the purpose of the preparation of
a treasonable act or misuses his official authority or recruits men or
trains them in the use of arms will be liable to the same penalty. If
the perpetrator contacts a foreign government in a written declaration,
the crime is considered accomplished once this declaration has been
sent off.
* * * * * * *
Article 83
Whoever publicly solicits, and incites to, an undertaking of high
treason shall be punished by hard labor up to 10 years.
Whoever prepares an undertaking in any other way shall be liable to the
same penalty.
The death penalty or hard labor for life or hard labor for not less
than 2 years will be inflicted--
1. If the act aimed at establishing or maintaining an organized
structure for the preparation of high treason; or
2. If the act was directed toward making the armed forces or police
unfit for the execution of their duty to protect the stability of the
German Reich from internal or external attack; or
3. If the act was directed toward influencing the masses by composing
or distributing writings, recordings and pictures, or by the
installation of radio, telegraph, or telephone; or
4. If the act was committed abroad or in such a manner that the
perpetrator undertook to import writings, recordings or pictures from
abroad for the purpose of distribution within the country.
* * * * * * *
Article 87
Undertakings, within the meaning of the criminal code, embrace both
completion and attempt.
Section 1 a
Article 88
_Treason_ [Landesverrat]
State secrets in the meaning of the provisions of this section are
documents, drawings, other objects, facts or reports thereof, which the
welfare of the Reich, especially in the interest of national defense,
requires to be held secret from a foreign government.
Whoever passes on or publicizes such a state secret to another person,
especially to a foreign government or to a person acting for a foreign
government, with the intent of endangering the welfare of the Reich,
commits an act of treason in the meaning of the provisions of the
section.
Article 89
Whoever undertakes to give away a state secret will be punished by
death.
If the perpetrator is a foreigner he may be sentenced to hard labor for
life.
If the act could not have constituted a danger for the welfare of the
Reich, the verdict may be hard labor for life or for not less than 5
years.
Article 90
Whoever undertakes to procure a state secret in order to give it away
will be punished by death or hard labor for life.
If the crime could not have brought about a danger for the welfare of
the Reich the verdict may be a term of hard labor.
* * * * *
Article 91
Whoever establishes contact with a foreign government or a person
acting for a foreign government with the intention of causing a war or
forcible measures against the Reich or other serious disadvantages to
the Reich, will be punished by death.
Whoever establishes contact of the kind described in paragraph 1 with
the intention of causing serious disadvantages for a national of the
Reich, will be punished with hard labor for life or for not less than 5
years.
Article 82, paragraph 2, second sentence shall apply.
Article 91 a
A German who, during a war against the Reich, serves in the armed
forces of the enemy or carries arms against the Reich or its allies
shall be punished by death or hard labor for life or not less than 5
years.
Article 91 b
Whoever, during a war against the Reich, or with regard to an impending
war, undertakes within the Reich, or being a German abroad, to either
aid and abet the enemy power, or to cause a detriment to the armed
forces of the Reich or its allies shall be punished by death or by hard
labor for life.
* * * * * * *
Article 92
Whoever conspires with another in a crime of treason under articles 89
through 90a, or 90f through 91b shall be punished by hard labor.
Whoever solicits or volunteers to commit a crime as described in
paragraph 1, or accepts such a solicitation or offer will be liable
to the same punishment. If the perpetrator declares his solicitation,
offer, or acceptance in writing, the crime is accomplished when the
declaration is sent off.
* * * * * * *
Part III. People’s Court[90]
* * * * * * *
Berlin, 24 April 1934
The Reich Chancellor
ADOLPH HITLER
The Reich Minister of Justice at the same
time for the Reich Minister of the Interior
DR. GUERTNER
The Reich Defense Minister
VON BLOMBERG
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM THE SECOND LAW CONCERNING THE TRANSFER
OF THE ADMINISTRATION OF JUSTICE TO THE REICH,
5 DECEMBER 1934[91]
1934 REICHSGESETZBLATT, PART 1, PAGE 1214
The Reich government has enacted the following law, which is
promulgated herewith:
In the National-Socialist State, the administration of justice is
uniform. It is under the jurisdiction of the Reich and requires
uniform administration by the Reich. After the Ministries of Justice
of the Reich and of Prussia have been combined, the Reich takes over
the immediate direction of the administration of justice in the other
states [Laender] in accordance with the following provisions:
Article 1
The competencies of the Supreme Justice Authorities of the States
[Laender] are transferred to the Reich Minister of Justice; he is
authorized to delegate them to agencies subordinate to him.
* * * * * * *
Berlin, 5 December 1934
The Fuehrer and Reich Chancellor
ADOLF HITLER
The Reich Minister of Justice
DR. GUERTNER
The Reich Minister of the Interior
FRICK
TRANSLATION OF 1393-PS
PROSECUTION EXHIBIT 508
LAW, 20 DECEMBER 1934, ON INSIDIOUS ACTS AGAINST STATE
AND PARTY FOR THE PROTECTION OF PARTY UNIFORMS
HEIMTUECKEGESETZ
1934 REICHSGESETZBLATT, PART 1, PAGE 1269
The Reich government has enacted the following law, which is
promulgated herewith:
Section I
Article 1
1. Unless heavier punishment is provided for in other provisions,
imprisonment up to 2 years shall be imposed upon anybody deliberately
making false or grossly distorted statements, which are apt to debase
the welfare of the Reich or the prestige of the Reich government, the
NSDAP or its affiliated agencies. Whoever makes or disseminates such
statements in public, will be imprisoned for not less than 3 months.
2. Anyone committing the offense with gross neglect shall be punished
with imprisonment up to 3 months, or with a fine.
3. If the offense is directed solely against the prestige of the NSDAP
or its affiliated agencies, the offender shall be prosecuted only with
the consent of the Fuehrer’s Deputy or of agencies authorized by him.
Article 2
1. Whoever makes statements showing a malicious, inciting or low-minded
attitude toward leading personalities of the State or the NSDAP,
or about orders issued by them or about institutions created by
them, which are apt to undermine the confidence of the people in its
political leadership--shall be punished with imprisonment.
2. Statements of this kind which are not made in public shall be
punished equally if the offender reckons or has to reckon that his
statements will eventually circulate in public.
3. The offender shall be prosecuted only by order of the Reich Minister
of Justice; in case the offense was committed against a leading
personality of the NSDAP, the Reich Minister of Justice will issue the
order in agreement with the Fuehrer’s Deputy.
4. The Reich Minister of Justice in agreement with the Fuehrer’s
Deputy shall determine who is to be regarded as a leading personality
according to paragraph 1.
Article 3
1. Anyone who, when committing or threatening to commit a punishable
act, is wearing or is carrying on his person the uniform or an insignia
of the NSDAP, without being entitled to do so as a member of the NSDAP
or its affiliated agencies, will be punished with hard labor or in
minor instances with imprisonment for at least 6 months.
2. Anyone who commits the offense with the intention to bring about
disorder or to sow fear or terror among the population, or to create
difficulties for the German Reich with a foreign power, shall be
punished with hard labor for at least 3 years or with hard labor for
life; in particularly grave cases the death penalty may be imposed.
3. According to this law, a German national may be punished also if he
committed the offense in a foreign country.
Article 4
1. Anyone who for his material advantage or for political ends poses
as a member of the NSDAP or its agencies, shall be punished with
imprisonment up to 1 year, plus a fine or both.
2. The offender shall be prosecuted only with the consent of the
Fuehrer’s deputy or of agencies authorized by him.
Article 5
1. Anyone who manufactures, holds in stock, sells or otherwise brings
on the market official Party uniforms, parts of Party uniforms,
uniform cloth, or insignia of the NSDAP, its affiliated agencies
or organization, without the permission of the Reich Treasurer of
the NSDAP, shall be punished with imprisonment up to 2 years. By a
directive to be published in the Reichsgesetzblatt the Reich Treasurer
of the NSDAP in agreement with the Reich Minister of Economics will
determine for what parts of uniform and uniform cloth a permission is
required.
2. Anyone who has in his possession official Party uniforms and
insignia without being a member of the NSDAP or its affiliated agencies
or organizations, or without being entitled to possess them for any
other reason, shall be punished with imprisonment of up to 1 year.
Anyone who wears any of the above-mentioned items, shall be punished
with imprisonment for at least 1 month.
3. To be put on a par with Party uniforms, parts of uniforms and
insignia, are those uniforms, parts of uniforms, and insignia which can
easily be taken for them.
4. In addition to the penalty those uniforms, parts of uniforms,
uniform cloth, flags, or insignia which are involved in the
punishable act shall be confiscated. In case no particular person
can be prosecuted or condemned, the confiscation shall take place
automatically, provided conditions justify it.
5. The confiscated items shall be turned over to the Reich Treasurer of
the NSDAP or to those agencies appointed by him, for future use.
6. The prosecution of the offense and the confiscation (article
4, paragraph 2) can be carried through only in agreement with the
Fuehrer’s deputy or agencies authorized by him.
Article 6
According to this law, anyone who has obtained membership of the Party
through false pretenses, is not a member of the NSDAP, its affiliated
agencies or organizations.
Article 7
The Fuehrer’s deputy, in agreement with the Reich Minister of Justice
and the Reich Minister of the Interior, shall issue the regulations
necessary for the application and supplementation of articles 1 to 6.
Section II
Article 8
1. The regulations set forth in this law, with the exception of
article 5, paragraph 1, apply accordingly to the Reich League for Air
Defense [Reichsluftschutzbund], the League of German Sports Fliers
[Deutscher Luftsportverband], the Voluntary Labor Service [Freiwilliger
Arbeitsdienst], and the Technical Emergency Corps [Technische
Nothilfe--TeNo].
* * * * * * *
Section III
Article 9
Article 5, paragraph 1, will come into force on 1 February 1935. The
other rules set forth in this law will come into force one day after
their promulgation; the decree on malicious acts against the Government
of the National Revolution, of 21 March 1933 (Reichsgesetzblatt I,
page 135) as well as article 4 of the law on the Reich Aviation
Administration of 15 December 1933 (Reichsgesetzblatt I, page 1077) are
declared invalid.
Berlin, 20 December 1934
The Fuehrer and Reich Chancellor
ADOLF HITLER
The Reich Minister of Justice
DR. GUERTNER
The Fuehrer’s Deputy, Reich Minister without Portfolio
R. HESS
The Reich Minister of the Interior
also for the Reich Minister of Aviation
FRICK
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM LAW OF 28 JUNE 1935 AMENDING
THE CRIMINAL (PENAL) CODE
1935 REICHSGESETZBLATT, PART 1, PAGE 839
The Reich government has enacted the following law, which is
promulgated herewith:
Section I
Creation of law by analogous application of penal laws. Articles 2 and
2a of the penal code are amended as follows:
Article 2[92]
Whoever commits an act which the law declares as punishable or which
deserves punishment according to the fundamental idea of a penal law or
the sound sentiment of the people, shall be punished. If no specific
penal law can be directly applied to the act, it shall be punished
according to the law whose underlying principle can be most readily
applied to the act.
Article 2a
* * * * * * *
A law issued for a limited time only is to be applied to those criminal
acts which were committed during its validity, even after its validity
has expired.
* * * * * * *
Berlin, 28 June 1935
The Fuehrer and Reich Chancellor
ADOLF HITLER
The Reich Minister of Justice
DR. GUERTNER
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM THE LAW, 28 JUNE 1935, THE CODE OF
CRIMINAL PROCEDURE AND THE JUDICATURE ACT
1935 REICHSGESETZBLATT, PART 1, PAGE 844
The Reich government has enacted the following law, which is
promulgated herewith:
Section I
Freer Position of the Judge
1. Creation of law by analogous application of the penal laws.
(a) As articles 170a and 267a, the following stipulations will be
inserted in the Code of Criminal Procedure:
Article 170a
If an act deserves punishment according to the sound sentiment of the
people, but is not declared punishable in the law, the prosecution will
examine whether the underlying principle of a penal law can be applied
to the act and whether justice can be helped to triumph by analogous
application of that penal law. (Article 2 of the Penal Code).
Article 267a
If the trial shows that the defendant has committed an act which
deserves punishment according to the sound sentiment of the people, but
is not declared punishable by the law, the court will examine whether
the underlying principle of a penal law applies to the act and whether
justice can be helped to triumph by analogous application of that penal
law (Article 2 of the Penal Code).
Article 265, paragraph 1, applies accordingly.
* * * * * * *
4. Removal of one-sided limitations of the courts deciding on legal
appeals. The code of criminal procedure is amended as follows:
(a) Article 331 is amended as follows:
Article 331
Even if the judgment has been contested only by the defendant or his
legal representative or by the prosecution in his favor, it can be
changed against the interests of the defendant.
(b) Article 358, paragraph 2, is amended as follows:
Even if the judgment has been contested only by the defendant or his
legal representative or by the prosecution in his favor, it can be
changed against the interests of the defendant.
(c) Article 373, paragraph 2, is amended as follows:
Even if resumption of the proceedings has been applied for only by
the defendant or his legal representative or by the prosecution in
his favor, the sentence can be changed against the interest of the
defendant.
* * * * * * *
Section II
Exemption of the Reich Supreme Court from being bound by precedents.
The Reich Supreme Court as the highest German tribunal must consider
it its duty to effect an interpretation of the law which takes into
account the change of ideology and of legal concepts which the new
state has brought about. In order to enable it to accomplish this task
without having to show consideration for the jurisdiction of the past
brought about by other ideologies and other legal concepts, it is ruled
as follows:
When a decision is made on a legal question, the Reich Supreme Court
can deviate from a decision laid down before this law came into force.
* * * * * * *
Section IV
Freer Position of the Prosecution
1. Removal of the necessity of proceedings before the investigating
judge; Introduction of assistant judges.
The investigating code of criminal procedure is amended as follows:
(a) Article 178 is amended as follows:
Article 178
In those penal cases, which belong to the competency of the People’s
Court, the courts of appeal or the courts of assize, a preliminary
court investigation is to be held at the request of the prosecution, if
the prosecution, according to its own discretion, deems this necessary.
Also, in other penal cases a preliminary court investigation will be
held, if the prosecution so requests. The prosecution should make such
a request only if extraordinary circumstances require a preliminary
court investigation by a judge.
* * * * * * *
2. Discretion with regard to victims of blackmail:
As article 154b, the following stipulation is inserted:
Article 154b
If duress has been applied, or blackmail has been committed, by
threatening to reveal a criminal act, the prosecution can refrain from
prosecuting the act whose revelation has been threatened, if it is
required as expiation and for protection of the community of the people.
* * * * * * *
Berlin, 28 June 1935
The Fuehrer and Reich Chancellor
ADOLF HITLER
The Reich Minister of Justice
DR. GUERTNER
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
LAW, 15 SEPTEMBER 1935, FOR THE PROTECTION OF
GERMAN BLOOD AND HONOR[93]
1935 REICHSGESETZBLATT, PART 1, PAGE 1146
Imbued with the conviction that the purity of the German blood is the
prerequisite for the permanence of the German people, and animated by
the inflexible will to safeguard the German nation for all future,
the Reichstag has unanimously enacted the following law, which is
promulgated herewith:
Article 1
(1) Marriages between Jews and German nationals of German or related
blood are prohibited. Marriages concluded despite of this are void,
even if concluded abroad in order to circumvent this law.
(2) Only the public prosecutor can file an action for nullification.
Article 2
Sexual intercourse (except in marriage) between Jews and German
nationals of German or related blood is forbidden.
Article 3
Jews may not employ female German nationals of German or related blood
below 45 years of age in their households.
Article 4
(1) Jews are forbidden to show the Reich and national flag or the
colors of the Reich.
(2) They are, however, allowed to show the Jewish colors. The exercise
of this right will be protected by the State.
Article 5
(1) Whoever violates the prohibition of article 1 will be punished with
hard labor.
(2) Any man violating the prohibition of article 2 will be punished
with imprisonment or hard labor.
(3) Whoever violates the regulations under articles 3 or 4, will be
punished with imprisonment up to 1 year or with a fine, or with both of
these penalties.
Article 6
The Reich Minister of the Interior, in agreement with the deputy of the
Fuehrer and the Reich Minister of Justice, will issue the legal and
administrative regulations required for carrying out and supplementing
this law.
Article 7
This law comes into force on the day following its promulgation;
article 3, however, not until 1 January 1936.
Nuernberg, 15 September 1935, at the Reich Party Congress for
Freedom.[94]
The Fuehrer and Reich Chancellor
ADOLF HITLER
The Reich Minister of the Interior
FRICK
The Reich Minister of Justice
DR. GUERTNER
The Deputy of the Fuehrer
Reich Minister without Portfolio
R. HESS
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM THE LAW AGAINST ECONOMIC SABOTAGE,
1 DECEMBER 1936
1936 REICHSGESETZBLATT, PART 1, PAGE 999
The Reich government has enacted the following law, which is
promulgated herewith:
Article 1
(1) A German citizen who deliberately and unscrupulously, for his own
gain or for other low motives, contrary to legal provisions smuggles
property abroad or leaves property abroad and thus inflicts serious
damage to German economy is to be punished by death. His property will
be confiscated. The perpetrator is also punishable, if he commits the
act abroad.
(2) This crime is subject to the jurisdiction of the People’s Court.
Article 2
The law becomes effective on the day of its promulgation.
Berlin, 1 December 1936
The Fuehrer and Reich Chancellor
ADOLF HITLER
The Plenipotentiary for the Four Year Plan
GOERING
Minister President
The Reich Minister of Economics as Deputy
POSSE
The Reich Minister of Justice
DR. GUERTNER
TRANSLATION OF ALTSTOETTER DOCUMENT 10
ALTSTOETTER DEFENSE EXHIBIT 1 (1)
EXTRACT FROM THE GERMAN CIVIL SERVICE LAW
(DEUTSCHES BEAMTENGESETZ, OR “DBG”), 26 JANUARY 1937[95]
_4. Obligation to render obedience_
Article 7
(1) The civil servant is responsible for the lawfulness of his official
acts.
(2) Insofar as nothing else has been legally provided, he has to comply
with the official directives given by his superiors or by persons
authorized to give him directives by virtue of a special order; the
responsibility then rests with him who gave the directive. The civil
servant must not comply with an order the execution of which would
obviously contravene the criminal laws.
(3) The civil servant may accept directives for his official acts only
from his superior or from persons authorized by virtue of a special
order to give him directives; his obligation to comply with the law and
with such regulations has the precedence of any other obligations to
render obedience.
(4) The Fuehrer and Reich Chancellor decides whether and to what
extent it is admissible to call a civil servant who is a member of the
National Socialist German Workers’ Party to account before a Party
court.
TRANSLATION OF SCHLEGELBERGER DOCUMENT 127
SCHLEGELBERGER DEFENSE EXHIBIT 123
DECREE, 10 JULY 1937, OF THE FUEHRER AND REICH CHANCELLOR
CONCERNING APPOINTMENT OF CIVIL SERVANTS AND
TERMINATION OF CIVIL SERVICE STATUS
1937 REICHSGESETZBLATT, PART 1, PAGE 769
On the basis of Articles 24, 31, 66, and 78 of the German Civil
Service Law of 26 January 1937 (Reichsgesetzblatt I, page 39) I hereby
order under concurrent suspension of my decree on the appointment and
termination of Reich and Land [State] civil servants of 1 February
1935 (Reichsgesetzblatt I, pages 74, 73) and on the participation of
the deputy of the Fuehrer in the appointment of civil servants of 24
September 1935 (Reichsgesetzblatt I, page 1203) as follows:
I
(1) I reserve to myself the power to appoint and retire civil servants
of permanent status [Planstellen] of the civil service pay groups A 2
c 2 and upward and in the equivalent Land civil service pay groups, if
not otherwise directed by special regulations. These civil servants
will be dismissed by me in accordance with articles 60, 61, 63 of the
German Civil Service Law, but according to article 61 only in as far as
they can be placed in inactive status [Wartestand]. Civil servants whom
I have placed in inactive status, and who are to be returned to active
duty in permanent positions which do not require a formal appointment
on my part can only be returned to active duty with my concurrence. I
reserve to myself the power to retire the following civil servants in
inactive status: under secretaries, ambassadors, ministerial directors,
ministers first class, and Oberreichsanwaelte.
(2) Suggestions will be submitted by the appropriate Reich Minister,
for Prussia by the Minister President.
(3) Before suggestions for appointment of civil servants and the
employment in accordance with sentence 3, Article I, is made, the
advice from the deputy of the Fuehrer [Hess] is to be sought, except in
cases where they are civil servants of the armed forces.
II
(1) I delegate the implementation of the powers reserved to myself on
appointment, retirement, and dismissal of the other civil servants,
in as far as I have not made reservations in article I, to the Reich
Ministers, for Prussia to the Minister President, who can further
delegate their authority with concurrence of the Reich Minister of
Interior and the Reich Minister of Finance.
(2) In special cases I reserve to myself the right of personal decision
also in cases of these civil servants.
III
The necessary regulations for the implementation of this decree will be
published by the Reich Minister of the Interior and the Reich Finance
Minister.
Berchtesgaden, 10 July 1937
The Fuehrer and Reich Chancellor
ADOLF HITLER
The Reich Minister of Interior
FRICK
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM DECREE, 17 AUGUST 1938, FOR SPECIAL CRIMINAL
LAW IN TIME OF WAR AND SPECIAL EMERGENCY[96]
1939 REICHSGESETZBLATT, PART 1, PAGE 1455
* * * * * * *
Article 5. Undermining of Military Efficiency[97]
(1) The following shall be guilty of undermining German defensive
strength, and shall be punished by death:
1. Whoever publicly solicits or incites others to evade the fulfillment
of compulsory military service in the German or an allied armed force,
or publicly otherwise seeks to paralyze or undermine the will of the
German or allied people to assert itself by force of arms.
2. Whoever undertakes to induce a soldier or conscript in the reserves
to disobedience, opposition, or violence against a superior, or to
desertion or illegal absence, or otherwise to undermine the discipline
of the German or an allied armed force.
3. Whoever undertakes to avoid or cause another person to avoid the
fulfillment of military service entirely, partly, or temporarily by
means of self-mutilation, by means designated to deceive, or by other
methods.
* * * * * * *
Berlin, 17 August 1938
The Fuehrer and Reich Chancellor
ADOLF HITLER
The Chief of the High Command of the Armed Forces
KEITEL
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
DECREE, 1 SEPTEMBER 1939, CONCERNING EXTRAORDINARY
MEASURES WITH REGARD TO FOREIGN RADIO BROADCASTS
1939 REICHSGESETZBLATT, PART 1, PAGE 1683
* * * * * * *
Article 1
Deliberate listening to foreign radio stations is prohibited.
Violations are punishable by hard labor. In less severe cases a
sentence of imprisonment may be passed. The radio receivers used will
be confiscated.
Article 2
Whoever deliberately spreads news from foreign radio stations which is
apt to undermine the defensive strength of the German people will be
punished by hard labor, in particularly severe cases by death.
Article 3
The provisions of this decree do not apply to actions taken in
execution of official duty.
Article 4
The Special Courts have jurisdiction to try and decide on violations of
this decree.
Article 5
Criminal prosecution under articles 1 and 2 takes place only on request
of the State Police authorities.
* * * * *
Berlin, 1 September 1939
The Chairman of the Ministerial Council
for the Defense of the Reich
FIELD MARSHAL GOERING
The Deputy of the Fuehrer
R. HESS
The Plenipotentiary for the Administration of the Reich
FRICK
The Reich Minister and Chief of the Reich Chancellery
DR. LAMMERS
PARTIAL TRANSLATION OF DOCUMENT NG-700
PROSECUTION EXHIBIT 625
Copy
DECREE, 3 SEPTEMBER 1939, OF THE FUEHRER AND REICH
CHANCELLOR CONCERNING EXECUTION OF THE RIGHT
OF PARDON[98]
During my absence from Berlin I delegate to the Reich Minister
of Justice the execution of the right of cancellation
[Niederschlagungsrecht] as well as the power to grant pardon and
to dismiss petitions for pardon, in cases which come under the
jurisdiction of the ordinary courts insofar as I have reserved these
decisions to myself in the decree of 1 February 1935 (Reichsgesetzblatt
I, page 74).
The same applies to revocation of decisions based on the decree of 23
November 1938 (Reichsgesetzblatt I, page 729).
I reserve to myself the right to decide personally in individual cases.
Berlin, 3 September 1939
The Fuehrer and Reich Chancellor
[Signed] ADOLF HITLER
[Great Reich Seal] The Reich Minister of Justice
[Signed] DR. GUERTNER
Minister of State and Chief of the Presidential Chancellery
[Signed] DR. MEISSNER
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM THE WAR ECONOMY DECREE OF 4 SEPTEMBER 1939
1939 REICHSGESETZBLATT, PART I, PAGE 1609
To protect the borders of our Fatherland, supreme sacrifices
are demanded from each of the members of the people’s community
[Volksgenossen]. The soldier protects the Fatherland with a weapon,
risking his life. In view of the greatness of this commitment, it is
the obvious duty of every member of the people’s community in the
Fatherland to put all their strength and wealth at the disposal of
the people and the Reich, in order to guarantee the continuation of
an orderly economic life. This also means that every member of the
people’s community restricts himself in his way of living and his
standards.
* * * * * * *
Section 1
Conduct Detrimental to War
Article 1
(1) Whoever destroys, removes, or conceals raw materials or products
belonging to the vital requirements of the population and thereby
malevolently endangers the supply of such requirements will be punished
with hard labor or imprisonment, and in particularly serious cases by
death.
(2) Whoever conceals payment certificates without any justified reason,
will be punished with imprisonment and, in particularly serious cases,
with hard labor.
* * * * * * *
Berlin, 4 September 1939
The Chairman of the Ministerial Council
for Defense of the Reich
FIELD MARSHAL GOERING
The Deputy of the Fuehrer
R. HESS
The General Plenipotentiary for the
Administration of the Reich
FRICK
The General Plenipotentiary for the Economy
WALTHER FUNK
The Reich Minister and Chief of the Reich Chancellery
DR. LAMMERS
The Chief of the High Command of the Armed Forces
KEITEL
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
DECREE, 5 SEPTEMBER 1939, AGAINST PUBLIC ENEMIES[99]
1939 REICHSGESETZBLATT, PART I, PAGE 1679
The Ministerial Council for the Defense of the Reich decrees with the
force of Law:
Article 1
_Looting in Liberated Territory_
(1) Whoever is found looting in liberated territory or in buildings or
rooms voluntarily vacated will be punished by death.
(2) This crime is subject to the jurisdiction of the Special
Courts,[100] insofar as field military courts have no jurisdiction.
(3) The death penalty may be executed by hanging.
Article 2
_Crimes During Air Raids_
Whoever commits a crime or offense against the body, life, property,
taking advantage of air raid protection measures, is punishable by
hard labor of up to 15 years or for life, and in particularly severe
cases by death.
Article 3
_Crimes of Public Danger_
Whoever commits arson or any other crime of public danger, thereby
undermining German defensive strength, will be punished by death.
Article 4
_Exploitation of the State of War as a Reason for more severe
Punishment_
Whoever commits any other criminal act by exploiting the extraordinary
conditions caused by war is punishable beyond the regular punishment
limits with hard labor of up to 15 years or for life, or by death if
the sound sentiment of the people requires it because of the particular
wickedness of the act.
Article 5
_Speeding up of Special Court Proceedings_
In all trials by Special Courts the verdict must be pronounced at
once without observation of time limits if the perpetrator is caught
redhanded or if his guilt is otherwise obvious.
Article 6
_Sphere of Jurisdiction_
The provisions of this Law are also applicable in the Protectorate
of Bohemia and Moravia, also for those persons who are not German
nationals.
Article 7
_Final Regulations_
The Reich Minister of Justice will issue the legal and administrative
regulations required to carry out and supplement this decree.
Berlin, 5 September 1939
The Chairman of the Ministerial Council
for the Defense of the Reich
FIELD MARSHAL GOERING
The Plenipotentiary for the Administration of the Reich
FRICK
The Reich Minister and Chief of the Reich Chancellery
DR. LAMMERS
TRANSLATION OF DOCUMENT KLEMM 29
KLEMM DEFENSE EXHIBIT 29
DECREE OF 17 OCTOBER 1939, ESTABLISHING SPECIAL JURISDICTION AND
PROVIDING FOR JUDGES APPOINTED BY HIMMLER, FOR CRIMINAL PROCEEDINGS
AGAINST MEMBERS OF THE SS AND POLICE FORMATIONS ON SPECIAL TASKS
1939 REICHSGESETZBLATT, PART I, PAGE 2107
Decree on special jurisdiction in criminal proceedings against members
of the SS and members of police formations on special tasks, dated 17
October 1939.
The council of ministers for the defense of the Reich decrees that the
following become law in the territory of the Greater German Reich:
Article 1[101]
Special jurisdiction is established for the prosecution of--
1. Professional members of the Reich leadership of the SS,
2. Professional members of the staffs of those Higher SS and Police
Leaders who command organizations listed under numbers 3 to 6,
3. Members of the SS Special Duty Troops,
4. Members of the SS Death Head units[102] including their replacement
units,
5. Members of the SS Junkers’ Schools,
6. Members of the police formations on special tasks.
Article 2
(1) The persons specified under article 1, numbers 1 to 5, come under
special jurisdiction in all cases of unlawful actions for which army
courts are competent. The persons specified under article 1, number 6,
come under special jurisdiction only if these unlawful actions have
been committed while on special duty.
(2) The competence of the army courts remains unchanged.
Article 3
(1) If not ordered otherwise, the regulations of the military penal
code, the regulations of the criminal procedure of courts martial
as well as their introductory laws will be applied correspondingly
under this special jurisdiction. As far as nonmilitary offenses are
concerned, general criminal law applicable to members of the armed
forces will be applied.
(2) The place of the Reich Minister for War or of the Chief of the High
Command of the Wehrmacht is taken by the Reich Leader of the SS and
Chief of the German Police. He appoints the judges and specifies the
regional sphere of their jurisdiction.
Article 4
(1) Courts martial will be replaced by SS courts and, wherever cases
against members of police units are concerned, by SS and police courts.
The army appeal courts will be replaced by an SS and police appeal
court.
(2) A special decree will be issued as to which court will take over
the tasks of the Supreme Army Court in Wehrmacht affairs.
Article 5
(1) Civilian army judges will be replaced by SS judicial officers
[Justizfuehrer] who are qualified to be judges. They will be appointed
by the Fuehrer and Reich Chancellor, and in disciplinary matters, are
directly subordinate to the Reich Leader SS.
(2) If the proceedings involve a member of the SS, SS members will be
appointed as associate judges, otherwise the associate judge will be
appointed from the ranks of the police.
(3) The registrars of the office will be replaced by SS
Beurkundungsfuehrer [SS officers having registrar’s functions].
(4) Further regulations as to the legal status of SS judicial officers
and SS Beurkundungsbeamte [SS officials having registrar’s functions]
remain reserved.
Article 6
The regulations of the military penal code concerning special honor
penalties [Ehrenstrafen] against soldiers are not to be applied. They
are superseded by regulations concerning the penalties of dishonorable
discharge and dismissal from the SS.
Article 7
The Reich Minister for the Interior and the Reich Leader SS, in
agreement with the Reich Ministers of Justice and of Finance, are
authorized to decree in their own field of activities the regulations
necessary for articles 4 and 5 as well as the regulations for the
carrying out of this ordinance.
Article 8
This ordinance becomes effective on the day of its proclamation.
Berlin, 17 October 1939
The Chairman of the Council of Ministers
for the Defense of the Reich
FIELD MARSHAL GOERING
The Plenipotentiary General for the
Administration of the Reich
FRICK
The Reich Minister and Chief of the Reich Chancellery
DR. LAMMERS
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM DECREE, 25 NOVEMBER 1939, SUPPLEMENTING
PENAL PROVISIONS FOR PROTECTION OF THE MILITARY
STRENGTH OF THE GERMAN PEOPLE[103]
1939 REICHSGESETZBLATT, PART I, PAGE 2319
The Ministerial Council for the Defense of the Reich decrees with the
force of law:
Article 1
_Damage to Military Equipment_
(1) Whoever intentionally destroys, renders unserviceable, damages,
abandons or removes military equipment of an installation intended for
the German defense, and thereby intentionally, or through negligence,
endangers the fighting power of the German armed forces, will be
punished with imprisonment of not less than 6 months. In serious cases
the death penalty, or hard labor for life, or a term of hard labor will
be imposed.
(2) The same punishment will be inflicted upon a person who
intentionally builds, manufactures or delivers in a defective manner
military equipment or installations of the kind described above, and
thereby intentionally or through negligence endangers the fighting
power of the German armed forces.
(3) The attempt is also punishable.
(4) Whoever acts carelessly and thereby negligently endangers the
fighting power of the German armed forces will be punished with
imprisonment.
(5) This regulation replaces article 143 a of the penal code.
Article 2
_Disturbance of an Essential Enterprise_
(1) Whoever disturbs or endangers the orderly function of an enterprise
essential to the defense of the Reich or to the supply of the
population by making any object serving the enterprise completely or
partially unusable or by putting it out of commission will be punished
with hard labor or in especially serious cases with death.
(2) In less serious cases the penalty will be imprisonment.
* * * * * * *
Article 5
_Endangering of the Armed Forces of Friendly States_
(1) Whoever in Germany gathers or forwards information concerning
military matters for a foreign military intelligence service to the
prejudice of another state, or forms, maintains, or supports an
information service concerning such matters will be punished with hard
labor or in less serious cases with imprisonment.
(2) The act shall be prosecuted only upon order of the Reich Minister
of Justice.
Article 6
In the Protectorate of Bohemia and Moravia the provisions of articles
1, 2, 4, and 5 of this decree apply also to persons who are not German
nationals.
Berlin, 25 November 1939
The Chairman of the Ministerial Council
for the Defense of the Reich
FIELD MARSHAL GOERING
The Plenipotentiary for the Administration of the Reich
As Deputy, HIMMLER
The Chief of the Reich Chancellery
DR. LAMMERS
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
DECREE OF 5 DECEMBER 1939 AGAINST VIOLENT CRIMINALS
1939 REICHSGESETZBLATT, PART I, PAGE 2378
The Ministerial Council for the Defense of the Reich decrees the
following with the force of law for the area of the Greater German
Reich:
Article 1
_Armed Violence_
(1) Whoever uses a firearm, a cutting or stabbing weapon, or any other
equally dangerous object while committing rape, street robbery, bank
robbery or any other serious act of violence, or whoever threatens
another person’s body or life with such a weapon will be punished by
death.
(2) The criminal who attacks his pursuers or defends himself against
them with the use of arms will be subject to the same penalty.
Article 2
_Protection for People Assisting in the Pursuit of the Criminals_
Whoever takes part personally in the pursuit of a criminal for the
purpose of his apprehension has the same privileges under criminal law
as policemen and officers of the law.
Article 3
_Competence of the Special Court_
In cases of crimes which fall under the provisions of articles 1 or 2
of this decree, the indictment will be filed with the Special Court.
Article 4
_More Severe Punishment for Attempted Crimes and Aiding and
Abetting_
Where an attempted crime or offense or the aiding and abetting in such
a crime or offense are punishable, the same punishment is generally
admissible as is provided for the accomplished crime.
Article 5
_Retroactive Force_
This decree is also applicable to punishable acts committed before it
came into force.
Article 6
_Final Regulations_
The Reich Minister of Justice will issue the legal and administrative
provisions required to carry out and supplement this decree, and the
special provisions concerning the application of this decree in the
Protectorate of Bohemia and Moravia.
Berlin, 5 December 1939
The Chairman of the Ministerial Council
for the Defense of the Reich
FIELD MARSHAL GOERING
The Plenipotentiary for the Administration of the Reich
FRICK
The Reich Minister and Chief of the Reich Chancellery
DR. LAMMERS
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
DECREE OF 6 MAY 1940 ON THE EXTENSION OF THE
APPLICATION OF GERMAN CRIMINAL LAW
1940 REICHSGESETZBLATT, PART I, PAGE 754
The Ministerial Council for the Defense of the Reich decrees, for the
territory of the greater German Reich, with the force of law:
Section I
_Extent of the Application of Criminal Law_
Articles 3 through 5, 8 and 37 of the Reich Penal Code will be replaced
by the following regulations:
Article 3
German criminal law will be applied to the crime of a German national,
no matter whether it is committed in Germany or abroad.
For a crime committed abroad, which according to the laws of the place
of commitment is not punishable, German criminal law will not be
applied, if such an act according to the sound sentiment of the German
people--on account of the particular conditions prevailing at the place
of commitment--is not considered to be deserving punishment.
An act shall be deemed to have been committed in any place where the
perpetrator has acted, or, in case the act consists in an omission,
where he ought to have acted, or where the results of the act came
about or were intended to come about.
Article 4
German criminal law will be applied also in case of acts committed by a
foreigner in Germany.
German criminal law will be applied to a crime committed by a foreigner
abroad, if it is punishable according to the penal code of the
territory where it is committed, or if such territory is not subject to
any punitive authority [Strafgewalt] and if--
1. The perpetrator obtained German nationality after the act, or
2. The act is directed against the German people or a German
national, or
3. The perpetrator is apprehended in Germany and is not
extradited, although the nature of his act would permit
extradition.
German criminal law will be applied to the following acts committed
by a foreigner abroad, independently of the laws of the place of
commitment:
1. Acts committed while holding a German government office, as
a German soldier, or as member of the Reich Labor Service, or
committed against a holder of an office of the German State or
the Party, against a German soldier, or a member of the Reich
Labor Service, while on duty, or relating to his duty;
2. Acts constituting treason or high treason against the German
Reich;
3. Crimes committed with explosives;
4. Traffic in children and women;
5. Disclosure of a manufacturing or commercial secret of a
German enterprise;
6. Perjury committed in the course of proceedings of a German
court or some other German agency authorized to take oaths;
7. Crimes and offenses of counterfeiting;
8. Unauthorized sale of narcotics;
9. Trade with pornographic publications.
Article 5
German criminal law will be applied, independently of the laws of the
place of commitment, to crimes committed on a German vessel or a German
airplane.
Section II
Regulations Amending the Rules of Criminal Procedure:
1. As article 8 a of the Code of Criminal Procedure the
following regulation is being inserted:
Article 8 a
Jurisdiction shall also be established at the court in the district of
which the defendant is being detained by order of an authority at the
time the indictment is filed.
2. As article 153 a of the Code of Criminal Procedure, the following
regulation is being inserted:
Article 153 a
* * * * * * *
An act committed by a foreigner abroad will be prosecuted by the public
prosecutor only if so demanded by the Reich Minister of Justice.
The public prosecutor may abstain from the prosecution of a punishable
act if for the same act punishment has already been carried out abroad
and the sentence to be expected in Germany, after deducting the time
served abroad, would not be heavy.
* * * * * * *
Berlin, 6 May 1940
The Chairman of the Ministerial
Council for National Defense
FIELD MARSHAL GOERING
The Plenipotentiary General for the
Administration of the Reich
FRICK
The Reich Minister and Chief of the Reich Chancellery
DR. LAMMERS
TRANSLATION OF DOCUMENT NG-1807
PROSECUTION EXHIBIT 626
DECREE OF 11 JUNE 1940 CONCERNING EXECUTION OF PRISON
SENTENCES FOR CRIMES COMMITTED IN TIME OF WAR
1940 REICHSGESETZBLATT, PART I, PAGE 877
The Ministerial Council for National Defense decrees the following with
legal force for the territory of Greater Germany:
Article 1
(1) If a court martial or an SS and police court sentences a person to
hard labor for crimes committed in time of war, or, sentences him, in
addition to imprisonment, to loss of the right to bear arms, or loss of
civil rights, and if the sentence is to be carried out within the scope
of the Reich Administration of Justice, the period spent in prison
during the war will not be included in the time of imprisonment. In
special cases the judiciary can decide differently.
(2) If a person has within the scope of the Reich Administration of
Justice been sentenced to hard labor for a crime committed in time of
war, the executing authority should give an order which complies with
the legal consequence of article 1, paragraph 1.
(3) The provisions of articles 1 and 2 apply also to prison sentences
which have been passed before the effective date of this decree.
(4) Prison sentences which are covered by the provisions of article
1, paragraph 1, or for the execution of which an order according to
article 2 is given, will be executed under more strict conditions.
Article 2
The Reich Minister of Justice is authorized to issue the necessary
legal and administrative provisions for the carrying out or
supplementation of this decree. He may determine that article 1,
paragraph 2, should be applied accordingly if imprisonment is to be
imposed.
Article 3
This decree applies also in the Incorporated Eastern Territories.
Berlin, 11 June 1940
The Chairman of the Ministerial Council
for National Defense
FIELD MARSHAL GOERING
The Plenipotentiary for the Administration of the Reich
FRICK
The Chief of the High Command of the Armed Forces
KEITEL
The Reich Minister and Chief of the Reich Chancellery
DR. LAMMERS
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM LAW OF 4 SEPTEMBER 1941 AMENDING THE
CRIMINAL (PENAL) CODE
1941 REICHSGESETZBLATT, PART I, PAGE 549
The Reich government has enacted the following law, which is
promulgated herewith:
Article 1
The dangerous habitual criminal (article 20a of the penal code) and the
sex criminal (articles 176 through 178 of the penal code) are subject
to the death penalty if the protection of the national community or the
need of just expiation require it.
* * * * * * *
Article 3
The usurer (articles 302d and 302e of the penal code) will be punished
with hard labor in especially serious cases. Moreover, a fine of an
unlimited amount can be imposed.
* * * * * * *
Fuehrer Headquarters, 4 September 1941
The Fuehrer and Reich Chancellor
ADOLF HITLER
The President of the Ministerial Council
for the Defense of the Reich
REICH MARSHAL GOERING
The Acting Reich Minister of Justice
DR. SCHLEGELBERGER
The Reich Minister of the Interior
FRICK
The Reich Minister and Chief of the Reich Chancellery
DR. LAMMERS
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM THE ELEVENTH REGULATION ON THE
REICH CITIZENSHIP LAW, 25 NOVEMBER 1941[104]
1941 REICHSGESETZBLATT, PART I, PAGE 722
The Reich government has enacted the following law, which is
promulgated herewith:
Article 1
A Jew, having his regular abode abroad, cannot be a German national.
Regular abode abroad shall be presumed if a Jew is abiding abroad under
circumstances indicating that he abides there not only temporarily.
Article 2
A Jew loses German nationality--
_a._ If at the date this amendment becomes effective, he has his
regular residence abroad, with that same date.
_b._ If he takes up his regular residence abroad later on, at
the same time replacing his regular domestic residence by a residence
abroad.
Article 3
(1) The property of the Jew who is losing his German nationality
under this amendment shall be forfeited for the benefit of the Reich
at the moment he loses his nationality. For the benefit of the Reich
shall further be forfeited the property of Jews who are stateless at
the moment this amendment becomes effective, and who were of German
nationality, prior to this amendment coming into effect, if they have
taken up or take up their regular residence abroad.
(2) The property thus forfeited shall serve the furthering of all
purposes in connection with the solution of the Jewish question.
Article 4
(1) Persons whose property is forfeited for the benefit of the Reich
under article 3, shall not be able to inherit anything from a German
national.
* * * * * * *
Article 8
(1) It is for the chief of the Security Police and the SD to decide
whether the conditions for a forfeiture of property are given.
(2) The administration and liquidation of the forfeited property is up
to the chief of the Regional Finance Office, Berlin.
* * * * * * *
Article 10
(1) Claims for pensions of Jews who lose German nationality under
article 2 expire with the end of the month during which the loss of
nationality occurs.
* * * * * * *
Article 12
This amendment is also valid for the Protectorate of Bohemia and
Moravia and the Incorporated Eastern Territories.
Berlin, 25 November 1941
The Reich Minister of the Interior
FRICK
The Chief of the Party Chancellery
M. BORMANN
The Reich Minister of Finance
As Deputy, REINHARDT
The Acting Reich Minister of Justice
DR. SCHLEGELBERGER
TRANSLATION OF SCHLEGELBERGER DOCUMENT 23
SCHLEGELBERGER DEFENSE EXHIBIT 63
ORDER OF 16 JANUARY 1942 FOR EXECUTION OF THE FUEHRER
DECREE CONCERNING THE POSITION OF CHIEF OF
THE PARTY CHANCELLERY
1942 REICHSGESETZBLATT, PART I, PAGE 35
Pursuant to the Fuehrer decree of 29 May 1941 (Reichsgesetzblatt I, p.
295) defining the position of the chief of the Party Chancellery, the
following is hereby directed:
Article 1
(1) Any Party contribution toward national legislation is the exclusive
responsibility of the chief of the Party Chancellery unless otherwise
directed by the Fuehrer. Legislative proposals or suggestions emanating
from the Party, its formations or affiliated organizations are to be
submitted exclusively by the chief of the Party Chancellery to the
top-level Reich authorities concerned.
(2) Likewise, all assistance of the Party in dealings with personnel
matters of civil servants is the exclusive responsibility of the chief
of the Party Chancellery.
Article 2
In all matters of national legislation the chief of the Party
Chancellery occupies the same position as that of any Reich minister
concerned. Therefore he is to be consulted by the highest Reich
authorities with regard to the drafting of Reich laws, decrees, and
directives of the Fuehrer, directives of the Ministerial Council for
National Defense, as well as directives issued by the highest Reich
authorities, and regulations and provisions for the execution of these
directives. The same applies to the endorsement of laws and directives
issued within the jurisdiction of the German States [Laender] or of
directives of Reich governors.
Article 3
In all matters of general principle and national policy, particularly
in matters pertaining to the drafting, amendment, or execution of laws,
decrees, or directives, all communications between the highest Reich
authorities and the highest authority of the German States including
several political districts on one hand, and the agencies of the Party,
its formations and affiliated organizations on the other hand, are to
be channeled exclusively through the chief of the Party Chancellery. In
such cases there shall exist no direct correspondence between either
the highest Reich authorities or the highest authorities of the German
States, and any agencies of the Party other than the chief of the Party
Chancellery. The same applies to personnel matters of civil servants,
unless such matters are otherwise regulated by special provisions.
Fuehrer Headquarters, 16 January 1942
The Reich Minister and Chief of the Reich Chancellery
DR. LAMMERS
The Chief of the Party Chancellery
M. BORMANN
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
FUEHRER DECREE, 21 MARCH 1942, CONCERNING SIMPLIFICATION
OF THE ADMINISTRATION OF JUSTICE
1942 REICHSGESETZBLATT, PART I, PAGE 139
The defense of people and Reich necessitates smooth and quick work in
the administration of justice. In order to enable the courts and the
public prosecutors to continue the fulfilling of their tasks under the
extraordinary conditions, I decree the following:
I
The procedure in penal cases including the administration of
punishment, in civil cases and in matters of voluntary jurisdiction,
is to be simplified and expedited, by eliminating all dispensable
measures and by utilizing all available manpower, as far as it is
compatible with the purpose of the procedure. In particular, in penal
cases the enforcement of the indictment by the offended party, and the
formal decree of the court opening, the trial will be eliminated; the
authority of the local court in penal matters is to be enlarged, and
the admissibility of writs of punishment to be extended.
II
Indictments and judicial decisions will be written in concise style and
cut down to the absolutely necessary.
III
The participation of professional associate judges in judicial
decisions is to be restricted.
IV
Appeals against judicial decisions will be adapted to war conditions;
they can be made subject to special admission. In civil cases of appeal
the introduction of new factual material is to be further restricted.
V
(1) The term of office of the members of the Special Senates of the
Reich Supreme Court and of the People’s Court, as well as the honorary
members of the People’s Court, is extended to the termination of the
war.
(2) The units and members of units of the Reich chamber of attorneys,
the Reich chamber of notaries public and the notaries’ finance
office will remain in office until the termination of the war; their
appointment can be revoked at any time.
VI
I commission the Reich Minister of Justice, in agreement with the
Reich Minister and chief of the Reich Chancellery, and the chief of
the Party Chancellery, to issue the legal provisions necessary for the
execution of this decree. I empower the Reich Minister of Justice to
make the necessary administrative provisions and to decide any doubtful
questions by administrative means under due observation of article 2 of
the decree of 16 January 1942 (Reichsgesetzblatt Part I, page 35).
Fuehrer Headquarters, 21 March 1942
The Fuehrer
ADOLF HITLER
The Reich Minister and Chief of the Reich Chancellery
DR. LAMMERS
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
UNANIMOUS DECISION OF THE GREATER GERMAN REICHSTAG,
26 APRIL 1942, CONCERNING UNRESTRICTED POWERS
OF ADOLF HITLER
1942 REICHSGESETZBLATT, PART I, PAGE 247
Decision of the Greater German Reichstag, 26 April 1942
At the proposal of the president of the Reichstag, in its session of 26
April 1942, the greater German Reichstag has unanimously approved of
the rights which the Fuehrer has postulated in his speech[105], with
the following decision:
“There can be no doubt that in the present war, in which
the German people is faced with a struggle for its
existence or annihilation, the Fuehrer must have all the
rights postulated by him which serve to further or achieve
victory. Therefore--without being bound by existing legal
regulations--the Fuehrer in his capacity as leader of the
nation, supreme commander of the armed forces, chief of the
government, and supreme holder of executive power, as holder of
the supreme judicial power [Oberster Gerichtsherr] and leader
of the Party must be in a position to force with all means at
his disposal every German, if necessary, whether he be common
soldier or officer, low or high official or judge, leading
or subordinate official of the Party, worker or employee, to
fulfill his duties. In case of violation of these duties, the
Fuehrer is entitled, after conscientious examination, regardless
of so-called well established rights, to impose due punishment,
and to remove the offender from his post, rank and position,
without using prescribed procedures.”
At the order of the Fuehrer this decision is hereby promulgated.
Berlin, 26 April 1942
The Reich Minister and Chief of the Reich Chancellery
DR. LAMMERS
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
DECREE, 15 JULY 1942, SIGNED BY KEITEL, STUCKART AND DEFENDANT
SCHLEGELBERGER, EXTENDING SPECIAL JURISDICTION OF SS AND POLICE OR
MILITARY COURTS TO THE PROTECTORATE OF BOHEMIA AND MORAVIA
1942 REICHSGESETZBLATT I, PAGE 475
Order Concerning the Jurisdiction of SS Courts and Police Courts in the
Protectorate Bohemia and Moravia, 15 July 1942
In pursuance of the decree of the Fuehrer and Reich Chancellor
concerning the Protectorate Bohemia and Moravia, dated 16 March, 1939
(RGB1.I, p. 485) and in agreement with the Reich Protector of Bohemia
and Moravia, the following order is issued:
Article 1
In case of direct attack by a non-German citizen against the SS or the
German police or against any of their members, the Reich Leader of the
SS and chief of the German police in the Reich Ministry of the Interior
may establish the jurisdiction of a combined SS court and police court,
by declaring that special interests of parts of the SS or of the police
require that judgment be given by an SS and police court.[106]
This declaration shall be sent to the Reich Protector of Bohemia and
Moravia. The SS and police court, which shall have jurisdiction in
individual cases, shall be specified by the Reich leader of the SS and
chief of the German police in the Reich Ministry of the Interior.
Article 2
If the offense directly injures the interests of the armed forces the
Reich Leader of the SS and chief of the German police in the Reich
Ministry of the Interior, and the chief of the High Command of the
Armed Forces shall reach an agreement as to whether the case shall be
prosecuted by an SS and police court or by a military court.
Article 3
This order shall become effective 1 week after its publication.
Berlin, 15 July 1942
The Reich Minister of the Interior
As deputy, DR. STUCKART
The Chief of the High Command of the Armed Forces
KEITEL
The Acting Reich Minister of Justice
DR. SCHLEGELBERGER
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM DECREE OF 13 AUGUST 1942 FOR THE FURTHER
SIMPLIFICATION OF THE ADMINISTRATION OF JUSTICE
IN CRIMINAL CASES
1942 REICHSGESETZBLATT, PART I, PAGE 508
* * * * * * *
Article II
Extended penal authority of the Local Court
The local court may pass sentence of hard labor up to 5 years.
Article III
Extension of the Admissibility of the Writ of Punishment
A writ of punishment of up to 6 months’ imprisonment is admissible for
crimes, too.
Article IV
Economizing on Manpower in the Composition of Penal Court
Decisions by the penal chamber of the district court, the Special
Court and the penal senate of the courts of appeal may be made by the
president or his regular deputy alone, if he considers the cooperation
of his associates dispensable in view of the factual and legal
simplicity of the case, and if the public prosecutor agrees.
Article V
Trial without Public Prosecutor
In proceedings before the local court the public prosecutor may abstain
from participation in the trial.
* * * * * * *
Article VII
Reorganization of the System of Legal Remedies
Article 1
Restriction of Legal Remedies
Appeal and complaint by the defendant or the plaintiff in penal cases,
prosecuting on his own or beside the public prosecutor, against a
decision issued after this decree comes into force, are subject to
special admission. This will be granted in cases where a refusal would
be unfair.
Berlin, 13 August 1942
The Acting Reich Minister of Justice
DR. SCHLEGELBERGER
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
HITLER DECREE, 20 AUGUST 1942, CONCERNING SPECIAL POWERS AUTHORIZING
THE REICH MINISTER OF JUSTICE TO DEVIATE FROM ANY EXISTING LAW IN
ESTABLISHING A NATIONAL SOCIALIST ADMINISTRATION OF JUSTICE
1942 REICHSGESETZBLATT, PART I, PAGE 535
Decree of the Fuehrer concerning Special Powers of the Reich
Minister of Justice
To fulfill the tasks of the Greater German Reich, a strong
administration of justice is necessary. Therefore, I commission and
empower the Reich Minister of Justice[107] to establish a national
socialist administration of justice and to take all necessary measures
in accordance with my directives and instructions and in agreement with
the Reich Minister and chief of the Reich Chancellery and the chief
of the Party Chancellery.[108] In doing so, he can deviate from any
existing law.
Fuehrer Headquarters, 20 August 1942
The Fuehrer
ADOLF HITLER
The Reich Minister and Chief of the Reich Chancellery
DR. LAMMERS
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM THE REICH JUVENILE COURT LAW OF
10 NOVEMBER 1943
1943 REICHSGESETZBLATT, PART I, PAGE 639
First Part
Juvenile Delinquencies and their Consequences
First Section
General Rules
Article 1
Sphere of Application
(1) This law applies whenever a juvenile commits a delinquency subject
to punishment. A juvenile is one who, at the time of the deed, is 14
but not yet 18 years old.
(2) This law applies to Germans. It shall be applied accordingly to
members of other nationalities, as far as not otherwise provided.
* * * * * * *
Seventh Section
Application of the General Criminal Law
Article 20
Juvenile Major Criminals
(1) If at the time of the deed the juvenile was morally and mentally
developed to such an extent that he can be considered like a
perpetrator over 18 years old, the judge will apply the general
criminal law, if the sound sentiment of the people requires it because
of the particularly wicked character of the perpetrator and because of
the seriousness of his deed.
(2) The same applies, if the juvenile at the time of the deed,
according to his moral and mental development, cannot be considered
like an adult, but if the over-all appreciation of his personality and
his deed shows that he is a major criminal of a degenerate character
and the protection of the people demands such treatment.
* * * * * * *
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
FIFTH DECREE, 5 MAY 1944, AMENDING THE DECREE CONCERNING
SPECIAL CRIMINAL LAW IN TIME OF WAR
AND SPECIAL EMERGENCY
1944 REICHSGESETZBLATT, PART I, PAGE 115
Pursuant to Article 10 of the Decree concerning Special Criminal Law
in Time of War and Special Emergency[109] (Special Penal Decree for
Wartime) of 17 August 1938 (Reichsgesetzblatt 1939, I, p. 1455) the
following is ordered:
Article I
Article 5a of the Special Penal Decree for Wartime is amended as
follows:
Article 5a
Excess of the Regular Penalty Limits
(1) With regard to all offenders who through an intentional, punishable
act have become guilty of causing a serious detriment or danger to the
conduct of the war or the security of the Reich, the penalty can be
increased in excess of the regular penalty limits, up to the statutory
maximum of a given type of penalty, or to a term of hard labor, or to
hard labor for life, or to death, if the regular penalty limits are an
insufficient expiation according to the sound sentiment of the people.
The same applies to all punishable acts committed by negligence, if
they have caused a particularly serious detriment or danger to the
conduct of the war or the security of the Reich.
(2) In the case of punishable acts committed against the discipline
and courage required of a soldier, the regular penalty limits may be
likewise exceeded, if the maintenance of discipline and the security of
the military unit require it.
Article II
Article I applies also to acts committed before this decree becomes
effective.
Fuehrer Headquarters, 5 May 1944
The Chief of the High Command of the Armed Forces
KEITEL
TRANSLATION OF DOCUMENT NG-1918
PROSECUTION EXHIBIT 531
DECREE OF 25 AUGUST 1944, FOR THE PROTECTION OF
THE TOTAL WAR EFFORT
1944 REICHSGESETZBLATT, PART I, PAGE 184
Pursuant to the decree of the Fuehrer concerning special powers of the
Reich Minister of Justice,[110] of 20 August 1942 (Reichsgesetzblatt
I, p. 535), in connection with the decree of the Fuehrer concerning
total war effort of 25 July 1944 (Reichsgesetzblatt I, p. 161) the
following is ordered in agreement with the Reich Minister and chief
of the Reich Chancellery, the chief of the Party Chancellery, and the
Plenipotentiary for the Administration of the Reich.
Article I
(1) He who willfully or negligently violates an order or prohibition
contained in a legal decree or a duly promulgated administrative
order of the Reich government, any Supreme Reich Authority or any
other authority on the same level with it concerning measures for
implementing total war effort, will be punished with imprisonment
and/or a fine.
(2) If the perpetrator is guilty of causing, by a willful violation, a
serious disadvantage or a serious danger or, by a negligent violation,
a specially serious advantage or a specially serious danger to the war
effort or the security of the Reich, he may be punished with hard labor
for a limited period, or for life, or with death.
Article II
This decree is also applicable if the legal decree or administrative
order has been promulgated before this decree comes into force, but
after 25 July 1944.
Berlin, 25 August 1944
The Reich Minister of Justice
As deputy, KLEMM[111]
TRANSLATION OF KLEMM DOCUMENT 57
KLEMM DEFENSE EXHIBIT 57
EXTRACTS FROM DECREE, 13 DECEMBER 1944, FOR THE FURTHER ADAPTATION OF
CRIMINAL PROCEDURE TO THE REQUIREMENTS OF TOTAL WAR (FOURTH DECREE FOR
THE SIMPLIFICATION OF CRIMINAL PROCEDURE)
1944 REICHSGESETZBLATT, PART I, PAGE 339
In pursuance of the decree of the Fuehrer concerning special powers
of the Reich Minister of Justice, dated 20 August 1942,[112]
(Reichsgesetzblatt I, p. 535), in connection with the decree of the
Fuehrer concerning total war, dated 25 July 1944 (Reichsgesetzblatt
I, p. 161), and in agreement with the Reich Minister and chief of
the Reich Chancellery, the chief of the Party Chancellery, and the
Plenipotentiary for the Administration of the Reich, the following is
ordered:
* * * * * * *
Part II
* * * * * * *
Article 12
Limited Admittance of Defense Counsel
(1) In one criminal case, several lawyers or professional
representatives may not act side by side as chosen counsel for one
defendant.
(2) The rules about obligatory representation by defense counsel do not
apply. The presiding judge appoints a defense counsel for the whole
or part of the proceedings if the difficulty of the factual or legal
problems makes assistance by a defense counsel necessary, or if the
defendant, in due consideration of his personality, is unable to defend
himself personally.
* * * * *
Berlin, 13 December 1944
The Reich Minister of Justice
DR. THIERACK
C. Organization and Structure of the German Judicial System and the
Reich Ministry of Justice
I. THE POSITION AND RESPONSIBILITY OF LEADING OFFICIALS
IN THE REICH MINISTRY OF JUSTICE
EXTRACT FROM THE TESTIMONY OF DEFENDANT METTGENBERG[113]
_DIRECT EXAMINATION_
* * * * * * *
DR. SCHILF (counsel for defendant Mettgenberg): Dr. Mettgenberg, at the
Reich Ministry of Justice you last held the position of a subdepartment
chief. In the course of this trial a great many things have been said
about that subdepartment chief,[114] but you are the only defendant who
last held that position. Therefore, would you please give the court an
outline of that last position you held?
DEFENDANT METTGENBERG: Perhaps I may somewhat exceed the scope of the
question and say a few words about the structure of the Reich Ministry
of Justice as a whole, of which so far nothing has been said here.
The entire personnel of the Reich Ministry of Justice amounted to
approximately 800. Those 800 people composed three groups, the workers,
the employees, and the officials. As an example for the workmen may I
perhaps mention the cleaning women and the boilermen. As an example for
the employees, the majority of the secretaries and typists. Officials
were those who held the posts of civil servants. Conditions to fulfill
the status of a civil servant were mainly of a formal nature. Within
the body of civil servants there were three groups which must be
distinguished--the lower grade, the intermediate grade, and the higher
grade. Lower officials were, for example, those who carried the files,
the chief messengers, etc. Officials of the intermediate grade were
the men whose task it was to keep the registers and to draft documents
which were made by the dozen. The higher grade of officials were those
beginning with assessor [junior judge or prosecutor] up to the Minister
himself. The scope of work for the higher grade civil servants was
distributed in such a way that the younger of these civil servants
were employed as so-called co-workers [Mitarbeiter] or assistants.
Above the co-workers there were the Referents.[115] They were older
officials who held the rank of Oberregierungsrat or ministerial
counsellor [Ministerialrat].[115] Above them the next category was
the subdepartment chiefs [Unterabteilungsleiter]. These subdepartment
chiefs were either senior ministerial counsellors [Ministerialraete] or
Ministerialdirigenten.[115] Above them there were the department chiefs
[Abteilungsleiter], as a rule a ministerial director.[115] Sometimes it
was a Ministerialdirigent. Above them, but only temporarily, there was
an assistant under secretary [Unterstaatssekretaer]. Above him there
was one or several under secretaries [Staatssekretaeren].[115] At the
very top there was the Reich Minister.[115] When one keeps that survey
in mind, the answer to the question which counsel put to me becomes
fairly clear. The subdepartment chief was between the Referent and the
department chief. His task was to take reports from the Referent on
matters which were of a somewhat supernormal importance; matters which
were altogether normal and clear and unambiguous, where there were no
misgivings, no doubts, there the Referent made the decision. But as
soon as a matter, from any point of view, assumed somewhat greater
significance, he had to report on it to the chief who, in turn, had
to consider as to whether he himself was competent to decide on the
question. If it was of real significance, a report had to be made to
a higher authority, to the department chief, to the State Secretary,
and possibly to the Minister. In the absence of the department chief,
the subdepartment chief had to deputize for him in his business as
department chief. And the organization with us was such that every
subdepartment chief for his sphere of work had to undertake that work
as a deputy. In the big department IV, which has been discussed here
such a great deal, there were in the end six subdepartment chiefs,
each of whom had his own sphere of work. When the department chief
was absent, each one of the six subdepartment chiefs had to deputize
for the department chief within and for his own sphere of work. In
the main, my defense counsel has already explained the matter in his
opening statement, and I may therefore refer to it. As concerns myself
as a subdepartment chief, I too had to deputize for the department
chief when matters were concerned which belonged within my sphere of
work as a subdepartment chief.
2. EXTRACTS FROM THE “BASIC INFORMATION”
A BRIEF SUMMARY OF THE COURT SYSTEM[116]
Following the practice of most continental nations, German law (based
primarily on Roman law principles) is largely enacted into codes. The
criminal code dates from 1871, and the code of criminal procedure from
1877.
Before Hitler’s seizure of power, the individual German states
(Laender) retained their sovereignty in the administration of justice
and the establishment of courts. There was, however, a Supreme Court of
the entire German Reich (Reichsgericht), which sat at Leipzig.
Under the Supreme Court, there were 34 district courts of appeal
(Oberlandesgerichte), established in the several states and provinces.
Under the district courts of appeal were some 180 district courts
(Landgerichte) and about 2,200 local courts (Amtsgerichte).
Both the Judicature Act of 1877 and the Weimar constitution (article
102) provided that the courts and judges should be independent. The
general administration of the courts, however, was controlled by the
Justice Ministries--the Reich Supreme Court by the Reich Ministry of
Justice and the intermediate and lower courts by the Justice Ministries
of the individual states. The Reich and state prosecutors were
appointed and controlled by the respective Reich and state ministries.
* * * * * * *
_The regular courts._ Original jurisdiction, both in civil and
criminal matters, was divided between the local courts and the district
courts. The local courts served for civil cases where the claim did
not exceed 1500 reichsmarks, and criminal cases where the crime was
punishable with penal servitude up to 5 years. Cases where these limits
were exceeded were brought originally in the district courts.
The appellate procedure was much simplified as a war measure in 1939.
Criminal cases heard in the local courts could thereafter be appealed
to the district courts, and criminal cases heard originally in the
district courts could be appealed directly to the Reich Supreme Court.
Civil cases from the local courts could be taken on appeal directly to
the district courts of appeal; civil cases from the district courts
could be appealed to the district courts of appeal and thereafter to
the Reich Supreme Court.
Under the impact of the war and the resulting shortage of judges and
judicial personnel, a decree in September 1944 further curtailed the
right of appeal and entirely eliminated the judicial functions of the
district courts of appeal.
The Reich Supreme Court was the court of first and last instance for
cases of treason against the Reich but, as set forth below, in 1934
this function was absorbed by the People’s Court.
_Extraordinary courts._ Immediately after the seizure of power, by a
decree of 21 March 1933,[117] Special Courts (Sondergerichte) were
established in order to combat the activities of opponents of the new
regime. One Special Court was established within the area of each
district court of appeal. Each court was composed of a president and
two associates, drawn from the professional judges of the district. The
Special Courts were given jurisdiction over various crimes, including
inciting to disobedience of governmental orders, crimes in the nature
of sabotage, and acts “contrary to the public welfare.” There was no
appeal from decisions of the Special Courts.
The following year, the People’s Court (Volksgerichtshof) was
established by the law of 24 April 1934.[118] The People’s Court tried
cases of treason, which were withdrawn from the jurisdiction of the
Reich Supreme Court. During the following years, the jurisdiction of
the People’s Court was vastly increased by the expanded concept of
treason.
The People’s Court sat in six divisions, or “senates”; later on, a
“special senate” was created to retry cases where, in the judgment of
the Chief Public Prosecutor of the Reich, an insufficient punishment
had been imposed. Ordinarily a senate of the People’s Court was
composed of five judges, of whom two were professional judges and
the other three were laymen specially appointed from the SS, the
armed forces, and the Nazi Party hierarchy. There was no appeal from
decisions of the People’s Court.
* * * * * * *
Other special tribunals established under the third Reich included the
“hereditary health courts”[119] (Erbgesundheitsgerichte) and in 1945,
emergency civilian “courts martial”[120] (Standgerichte) in those parts
of Germany which were near the front lines.
* * * * * * *
REGULAR AND EXTRAORDINARY COURTS OF THE THIRD REICH
+------+
|HITLER|
+------+
.
+---------------------------+
| REICH MINISTRY OF JUSTICE |............
| THE MINISTER | .
+---------------------------+ .
| THE UNDER SECRETARY | .
+---------------------------+ .
| DEPT. III DEPT. IV | .
| (_Combined in 1944_) | .
+---------------------------+ .
. .
......................... .
. . .
+-------------+ +---+----------------+---+ .
|REICH SUPREME| | | PEOPLE’S COURT | | .
+--| COURT | | | (BERLIN) | | REICH DEFENSE
| | (LEIPZIG) | | +---+--------+---+ | COMMISSARS OR
| +-------------+ | | SPECIAL| | GAULEITER
| | . | | SENATE | | .
| | . +-------+--------+-------+ .
CRIMINAL | . | 1st | 2d | 3d | .
APPEALS | . |SENATE | SENATE | SENATE| .
AFTER | . +-------+--------+-------+ .
1939 | . | 4th | 5th | 6th | .
| | . |SENATE | SENATE | SENATE| .
| | . +-------+--------+-------+ .
| | . .
| | ..................... .
| | . .
| +------------------+ +------------------+ +-----------------+
| | DISTRICT COURTS | | SPECIAL COURTS | | CIVIL COURTS |
| | OF APPEAL | |(_At least one in_| | MARTIAL |
| |(_At least one in_| | _each province_) | |After February |
| |_each province_) | | | |1945, created |
| +------------------+ |Criminal | |wherever needed |
| | Civil Chamber | |jurisdiction | |using one |
| +------------------+ |_only_; first | |criminal court |
| |_Criminal_ appeals| |and last instance.| |judge and a Reich|
| |from District | +------------------+ |prosecutor. |
| |Courts, and | +-----------------+
| |clemency or |
| |nullity pleas |
| |from Special |
| |Courts, went | +--------------------+
| |directly to | |APPELLATE HEREDITARY|
| |Supreme Court | | HEALTH COURTS |
| |after 1939. In | +--------------------+
| |1944 _all_ | |
| |judicial | |
| |functions of | SINGLE APPEAL
| |these Courts | |
|were eliminated. | |
| +------------------+ |
| | |
| | |
| +------------------+ +--------------------+
| | DISTRICT COURTS | |MUNICIPAL HEREDITARY|
| +------------------+ | HEALTH COURTS |
+-| CRIMINAL CHAMBER | +--------------------+
+------------------+
| CIVIL CHAMBER |
+------------------+
|
|
+------------------+
| MUNICIPAL COURTS |
| | NOTE:
| Single Chambers | _Solid_ connecting lines show existence
| for minor civil | and direction of appeal.
| and criminal | _Dotted_ connecting lines show review
| matters. | channels for clemency and nullity
+------------------+ pleas (no appeal).
CHART SHOWING POSITIONS OF THE DEFENDANTS AND OTHERS IN THE REICH
MINISTRY OF JUSTICE AND THE GERMAN JUDICIAL SYSTEM UNDER HITLER[121]
+------------------------+
| HITLER |
| As Reich Chancellor |
|and Fuehrer of the NSDAP|
+-----------+------------+
|
+---------------------------+-----------------------------+
| | |
+--------------+ | +---------------------------+
|REICH CHANCERY| | | PARTY CHANCERY |-------------------+
| (LAMMERS) | | | (BORMANN) | |
+--------------+ | |KLEMM _Dept. IIIc until 44_| +-----------------------+
| +---------------------------+ |REICH DEFENSE COMMISSARS|
| |Usually NSDAP-Gauleiter |
| +------------------------+
| |
+--------------+ +--------------------------------------+ |
| OKW (KEITEL) | | REICH MINISTER OF JUSTICE | |
|Legal Division| |Acting Minister SCHLEGELBERGER 1941–42|... |
| (LEHMANN) | | Minister THIERACK 1942–45 | . |
+--------------+ +--------------------------------------+ . |
| | . |
| +----------------------+ . +-------------------+
| | STATE SECRETARY | ...............................| COURTS MARTIAL |
| |SCHLEGELBERGER 1930–42| . | eg. OESCHEY |
| |ROTHENBERGER 1942–44|............. |(_after Feb. 1945_)|
| |KLEMM 1944–45| +-------------------+
_LIAISON_ +----------------------+
| |
+--------------------------+----------------------------+-----------+------------+------------------------------+
| | | | | |
+--------------------+ +-------------------------+ +--------------------+ | +-----------------------+ +-----------------------+ +-------------+
| DIVISION III | | DIVISION IV | | DIVISION V | | | DIVISION VI | | SECRET DIVISION XV | |RSHA, SS, and|
|Criminal Legislation| |Criminal Admin. and Proc.| |Penal Administration| | |Civil Law and Procedure| |Prison Inmate Transfers| | GESTAPO |
| eg. METTGENBERG | | eg. METTGENBERG | | Chief: ENGERT | | | Chief: ALTSTOETTER | | Chief: ENGERT | | (HIMMLER) |
| von AMMON | | von AMMON | +--------------------+ | +-----------------------+ +-----------------------+ +-------------+
+--------------------+ | JOEL (_until 1943_) | | . .
+-------------------------+ | ......._LIAISON_.......
.....................+-------------------------+
. | |
. | |
+-------------+ | +----------------------------+
| REICH | | | PEOPLE’S COURT |
|SUPREME COURT| | |eg. LAUTZ BARNICKEL NEBELUNG|
+-------------+ | | ROTHAUG ENGERT PETERSEN|
| +----------------------------+
|
+---------------------------+
|PROVINCIAL COURTS OF APPEAL|
| eg. JOEL (_after 1943_) |
+---------------------------+
|
....................+---------------------+
. |
+---------------+ +----------------------+
|DISTRICT COURTS| | SPECIAL COURTS |
+---------------+ | eg. CUHORST |
. | OESCHEY |
+---------------+ |ROTHAUG (_until 1943_)|
| LOCAL COURTS | +----------------------+
+---------------+
3. SPECIAL COURTS[122]
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
DECREE OF THE REICH GOVERNMENT, 21 MARCH 1933,
ON THE FORMATION OF SPECIAL COURTS
1933 REICHSGESETZBLATT, PART I, PAGE 136
Pursuant to chapter II of part six of the third decree of the Reich
President to safeguard economy and finances and to combat political
excesses, of 6 October 1931, (Reichsgesetzblatt I, pp. 537, 565) the
following is decreed:
Article 1
(1) A Special Court will be created for the district of each court of
appeal.
(2) The Special Courts are courts of the States.
(3) The Legal Administration of the respective States determines the
seats of the Special Courts.
Article 2
The Special Courts have jurisdiction over crimes and offenses
enumerated in the decree of the Reich President for the protection
of people and State of 28 February 1933 (Reichsgesetzblatt I, p. 83)
and in the decree concerning the defense against insidious attacks
against the government of the national revolution of 21 March 1933
(Reichsgesetzblatt I, p. 135), provided that such crimes and offenses
are not within the jurisdiction of the Reich Supreme Court or the
courts of appeal.
Article 3
(1) The Special Courts shall also be competent if a crime or offense
within their jurisdiction constitutes at the same time another
punishable act.
(2) If another punishable act is factually connected with a crime or
offense within the jurisdiction of the Special Courts, the proceedings
against the perpetrators and participants of the other punishable act
may be brought before the Special Court by way of combination.
(3) The extension of jurisdiction according to paragraphs 1 and 2 does
not apply to matters within the jurisdiction of the Reich Supreme Court
or the courts of appeal.
Article 4
(1) The Special Courts are composed of a president and two associate
judges. A deputy has to be appointed for each member in case of his
absence.
(2) The members and their deputies must be permanently appointed judges
of the district for which the Special Court is established.
(3) The members will be appointed and the distribution of their tasks
undertaken by the presidency of the district court in the district in
which the Special Court is located.
Article 5
The prosecutors will be appointed by the legal administration of the
States from those prosecution officials who are legally qualified for
the office of a judge.
Article 6
The regulations of the code of criminal procedure and of the judicature
act will apply correspondingly to the proceedings, provided nothing
else has been determined.
Article 7
Proceedings may be instituted also before the Special Court in the
district in which the defendant was caught or where he is in custody.
The release of the defendant does not affect this jurisdiction once it
has been established.
Article 8
Applications for disqualification of a judge will be decided upon by
the Special Court to which the respective judge is assigned. For this
decision the respective judge is replaced by his deputy. The deputy
cannot be disqualified.
Article 9
(1) No hearings relating to the warrant of arrest will be held.
(2) The decisions concerning arrest pending trial are made by the
president of the Special Court. The president of the Special Court is,
apart from the local court, also competent for those decisions, which,
according to articles 125, 128 of the code of criminal procedure,
fall under the jurisdiction of the local court. Complaints against the
decisions of the president and the local court will be decided upon by
the Special Court.
(3) The president of the Special Court can delegate the interrogation
of the defendant and the decision about the warrant of arrest to an
associate judge. The same applies to the decisions which are to be made
according to articles 116 and 148 of the code of criminal procedure.
Article 10
For the defendant who has not yet chosen counsel, counsel has to be
appointed at the time when the date for the trial is fixed.
Article 11
A preliminary court investigation will not be held. If a preliminary
court investigation is pending at the time this decree becomes
effective, the records are to be transferred in due time to the
prosecutor of the Special Court.
Article 12
(1) The indictment must contain a summary of the results of the
investigations.
(2) The order of the court to open the trial can be dispensed with.
Instead of the request of the prosecution for the order to open the
trial, there will be the request of the prosecution to fix a date for
the trial. After receiving the indictment the president will set a
date for the trial, if in his opinion the legal prerequisites for it
are fulfilled. Otherwise he will put the decision to the court. When
setting the date for the trial, the president will also decide upon the
warrant of arrest or the continuation of the arrest pending trial.
(3) The legal administration of the State can decree that the clerk
of the Special Court will issue the summons for the trial and produce
those objects which are to serve as evidence (art. 214, par. 1 of the
code of criminal procedure). The legal administration of the State can
delegate this power.
(4) The term of the summons (art. 217 of the code of criminal
procedure) is 3 days. It can be shortened to 24 hours.
(5) The effects which the code of criminal procedure connects with the
opening of the trial take place with the filing of the indictment. The
effects, which the code of criminal procedure connects with the reading
of the order of the court to open the trial, take place at the moment
when the interrogation of the defendant as to the facts of the case
begins.
Article 13
The Special Court can refuse any offer of evidence, if the court has
come to the conviction that the evidence is not necessary for clearing
up the case.
Article 14
The Special Court has to pass sentence even if the trial results in
showing the act, of which the defendant is accused, as not being under
the jurisdiction of the Special Court. This does not apply if the act
constitutes a crime or offense under the jurisdiction of the Reich
Supreme Court or the courts of appeal; in this case the Special Court
has to proceed according to article 270, paragraphs 1 and 2 of the code
of criminal procedure.
Article 15
The results of the interrogations (art. 273, par. 2 of the code of
criminal procedure) need not be incorporated in the record of the trial.
Article 16
(1) There is no legal appeal against decisions of the Special Courts.
(2) Applications for a reopening of the case are to be decided upon by
the penal chamber of the district court. The reopening of the case in
favor of the defendant will also take place if there are circumstances
which point to the necessity of reexamining the case in the ordinary
procedure. The stipulation of article 363 of the code of criminal
procedure remains unaffected. If the application for the reopening of
the case is justified, the trial will be ordered to take place before
the competent ordinary court.
Article 17
Proceedings initiated on a punishable act within the jurisdiction
of the Special Courts and pending at the date this decree becomes
effective, will be continued according to the general rules if the
trial has already started. Otherwise they will be transferred to the
procedure regulated in this decree.
Article 18
(1) When the activities of the Special Courts end, the pending cases
will be transferred to the ordinary procedure; the indictment filed
according to the stipulations of this decree will become ineffective.
(2) If the trial has once started before the Special Court, it will be
carried on according to the stipulations of this decree.
(3) The administration of punishment will be transferred to the
authority for the administration of punishment in whose district the
Special Court had its seat; the court decisions occurring in the course
of the administration of punishment will be made by the penal chamber
of the district court without hearings being held.
Article 19
This decree becomes effective on the second day after its promulgation.
Berlin, 21 March 1933
The Reich Chancellor
ADOLF HITLER
For the Reich Minister of Justice
The Vice Chancellor
VON PAPEN
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
DECREE OF 21 FEBRUARY 1940 CONCERNING JURISDICTION OF
CRIMINAL COURTS, SPECIAL COURTS, AND ADDITIONAL
PROVISIONS OF CRIMINAL PROCEDURE
1940 REICHSGESETZBLATT, PART I, PAGE 405
* * * * * * *
PART II
SPECIAL COURTS
Section 1
_Organization and Jurisdiction of the Special Courts_
Article 10
Organization
(1) A Special Court will be established with one or several district
courts within the district of each court of appeal.
(2) Location and district of the Special Courts are determined by the
Reich Minister of Justice.
Article 11
Composition
1. Decisions of the Special Court are to be rendered by three
professional judges.
* * * * *
Article 13
Exclusive Jurisdiction
The Special Court has jurisdiction for:
1. Crimes and offenses committed under the law concerning insidious
attacks against State and Party, and the protection of Party uniforms,
of 20 December 1934.[123] (Reichsgesetzblatt I, p. 1269, and under
articles 134a and 134b of the criminal (penal) code.)
2. Crimes under article 239a of the criminal (penal) code and under the
law against highway robbery by means of highway traps, of 22 June 1938
(Reichsgesetzblatt I, p. 651).
3. Crimes under the decree concerning extraordinary measures with
regard to radio, 1 September 1939[124] (Reichsgesetzblatt I, p. 1683).
4. Crimes and offenses under article 1 of the war economy decree, 4
September 1939[125] (Reichsgesetzblatt I, p. 1609).
5. Crimes under article 1 of the decree against public enemies, 5
September 1939[126] (Reichsgesetzblatt I, p. 1679).
6. Crimes under articles 1 and 2 of the decree against violent
criminals, 5 December 1939, (Reichsgesetzblatt I, p. 2378).
Article 14
Establishment of jurisdiction of the court by the prosecution.
(1) The Special Court also has jurisdiction over other crimes and
offenses, if the prosecution is of the opinion that immediate
sentencing by the Special Court is indicated by the gravity or
the wickedness of the act, by the public excitement aroused or in
consideration of a serious threat to public order or security.
Article 15
Extension of Jurisdiction
(1) The Special Court is also competent if a crime or offense
belonging to its jurisdiction at the same time constitutes another
punishable act.
(2) If there is a factual connection between a crime or offense
belonging to the jurisdiction of the Special Court and another
punishable act, the latter can be brought before the Special Court by
way of combination.
Article 16
Limitations of Jurisdiction
The Special Court is not competent for offenses indicated in articles
13 through 15, in as far as the competency of the People’s Court or of
the court of appeal is established.
Section 2
_Proceedings before Special Courts_
Article 17
Application of General Rules of Procedure
(1) For the proceedings before the Special Courts, the code of criminal
procedure, the judicature act, and their amendments apply, unless
otherwise specified.
(2) The rules of the second chapter of the juvenile court law are not
applicable.
Article 18
Local Competency of the Court
The Special Court shall also be competent for those defendants who are
seized or kept in confinement in its district. The jurisdiction, once
established, will not be affected by the release of the defendant.
* * * * * * *
Article 23
Speeding up of the Proceedings
(1) In all proceedings before a Special Court the sentence must be
passed immediately without observation of any time limits, if the
delinquent was caught in the very act or if his guilt is otherwise
obvious.
(2) In all other cases the term of summons (arts. 217 and 218 of the
code of criminal procedure) shall be 24 hours.
* * * * *
Article 25
Relationship between the Special Courts and the regular courts
(1) The Special Court must hand down a decision in a case, even if the
trial shows that the act with which the defendant is charged is of such
a nature that the Special Court is not competent to deal with it. If,
however, the trial shows that the act comes under the jurisdiction of
the People’s Court, the Special Court will refer the case to the latter
court; article 270, paragraph 2, of the code of criminal procedure
applies accordingly.
(2) If the trial of a case before the People’s Court or the court of
appeal, after the filing of the indictment, shows that the Special
Court has exclusive jurisdiction over the act with which the defendant
is charged, the People’s Court or the court of appeal can either decide
the case themselves or direct the trial to take place before the
Special Court. In the latter case the act with which the defendant is
charged has to be described, with emphasis on its legal characteristics
and on the penal law.
Article 26
Incontestability
(1) There is no legal appeal against a decision of the Special Court.
(2) Applications for a reopening of the proceedings will be decided on
by the penal chamber of the district court at the seat of the Special
Court. The reopening of the case in favor of the defendant will take
place also if circumstances should make it necessary to re-examine
the case in ordinary proceedings. Article 363 of the code of criminal
procedure shall remain unaffected. If the application for reopening
is justified, the trial shall be directed to take place before the
competent ordinary court.
* * * * * * *
Part VI
Final Regulations
* * * * * * *
Article 40
Validity in the Protectorate
This decree is also valid for the German courts in the Protectorate of
Bohemia and Moravia.
* * * * * * *
Berlin, 21 February 1940
The Plenipotentiary for the Administration of the Reich
FRICK
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
LETTER FROM UNDER SECRETARY FREISLER TO PRESIDENTS AND PUBLIC
PROSECUTORS AT COURTS OF APPEAL, 26 SEPTEMBER 1941, CONCERNING HANDLING
OF CERTAIN WARTIME CRIMES BY SPECIAL COURTS TO SPEED UP PROCEEDINGS
The Reich Minister of Justice
3234-III a4 1187
Berlin W 8, 26 September 1941
Wilhelmstrasse 65
Telephone: 11 00 44,
long distance: 11 65 16
To the Presidents and Public Prosecutors at the Courts of Appeal
and for the information of--
_a._ The President of the Reich Supreme Court
_b._ The Chief Reich Prosecutor of the Reich Supreme Court
concerning prosecution of wartime criminality--
Wartime crimes, particularly those involving the decree against public
enemies, the war economy decree, the decree against violent criminals,
and the decree against “Black Listening” [Listening to prohibited
broadcasts][127], should, as a matter of principle, be indicted before
Special Courts, in order to speed up proceedings as much as possible.
In the event that, because of the great number of proceedings, the
necessary rapid handling of such cases should not prove possible, I
wish to be informed promptly, in order that I may have new Special
Courts established or new senates added to already existing Special
Courts. The overload of work on a Special Court should never result in
the handing over of cases to other courts.
A Special Court is, as a rule, to be considered overloaded if a monthly
average of more than 40 new indictments has been filed with it.
Acting for the Minister
[Signed] DR. FREISLER
Certified:
[Signed] BENICKE
Chief Clerk, Ministry of Justice Executive Office
TRANSLATION OF DOCUMENT NG-478
PROSECUTION EXHIBIT 61
LETTER FROM THIERACK, REICH MINISTER OF JUSTICE, TO PRESIDENTS OF
COURTS OF APPEAL, 5 JULY 1943, DISCUSSING DEVELOPMENT AND EFFECTIVENESS
OF SPECIAL COURTS AND PROPOSING LIMITATIONS ON THEIR JURISDICTION
The Reich Minister of Justice
3234-IVa 4 877/43
Berlin W 8, 5 July 1943
Wilhelmstrasse 65
Telephone:
Local calls 11 00 44
Long distance 11 65 16
[Stamp] Court of Appeal Cologne 26 July 1943
To: The Presidents of Courts of Appeal and the Generalstaatsanwaelte
Subject: Relief of the Special Courts
The following has been discussed here:
Special Courts were established by the decree of 21 March 1933[128]
as a keen weapon for the conviction of political criminals. Their
jurisdiction was initially limited to crimes and delicts as defined
by the decree of the Reich President concerning the protection of
people and State[129] as well as in the Heimtueckegesetz.[130] By
the decree on the extended jurisdiction of the Special Courts as of
December 1934 and through a series of subsequent laws the functions of
the Special Courts were steadily increased. The decree of 20 November
1938 then made it possible to bring before the Special Court such
cases in which immediate action by this court seemed necessary in view
of the gravity and the wickedness of the act or of the excitement
aroused in public. After the outbreak of the war, by the decree of
21 February 1940 concerning court jurisdiction there was established
exclusive jurisdiction of the Special Court for a series of offenses,
in particular for crimes and transgressions covered by the war economy
decree. _Thus, the amount of work accruing to the Special Courts
increased extraordinarily during the last years, especially during the
war. Practically all somewhat important criminal cases are now under
the jurisdiction of the Special Court._
This increase in work caused the establishment of a great number of
new Special Courts, the enlargement of existing Special Courts and the
formation of new Special Court sections.
I
This development is commented upon as follows:
1. Sentences by the Special Court in the first years after its
establishment had a strongly intimidating effect. Prompt and severe
punishment by the Special Court was dreaded. Moreover it was considered
particularly shameful to have been sentenced by the Special Court.
Since the focus of the entire system of criminal justice shifted in
the meantime from the ordinary courts (local courts, criminal sections
of district courts) to the Special Courts, a certain watering down of
the original conception of the Special Courts could not be entirely
avoided. Today the Special Courts basically are to be considered
merely as special divisions of the criminal courts, their verdicts no
longer having that full intimidating effect they had before. The only
essential difference from ordinary criminal jurisdiction is left in the
fact that there is no legal appeal remedy against verdicts of Special
Courts. The standing of Special Courts suffered from their having to
deal with comparatively small offenses such as small scale illegal
slaughtering, unauthorized fishing by a Pole, and the like.
2. The concentration of jurisdiction in political and other most
important criminal cases led at first to an essentially homogenous
and coherent jurisdiction. The establishment of new chambers in the
Special Courts and the increase of these courts tends to endanger
this homogenousness. Since the verdicts of Special Courts were not
regularly but rather casually published in the press, and since
equalizing measures were taken only recently, the jurisdiction of the
Special Courts, even of the individual chambers of one Special Court,
developed partly in a very different manner. The first chamber of one
Special Court, for instance, is reported to have punished the theft
of some items from a collection of textiles as the deed of a people’s
enemy with 4 years of penitentiary, while the second chamber of the
same Special Court in a very similar case imposed a sentence of only 8
months.
3. The strong increase of the number of Special Courts had brought
about that, due to the scarcity of apt candidates, the selection of
judges officiating in these courts could no longer be carried through
as carefully as it was done in the first years. While, in principle,
only professionally and in particular politically highly qualified
judges were supposed to work in Special Courts, the increase of
positions made it necessary to draft judges frequently from criminal
courts and civil sections who hardly were up to the required standards.
Quite a number of judges in the Special Court are not even members of
the Party.
4. Due to the development of the Special Courts, the ordinary criminal
courts, especially the criminal court sections, have undergone an
extreme decline in importance. While Special Courts are overburdened
with work, some criminal court sections have hardly as much to do as
they had in peacetime. Furthermore, the latter now having only to deal
with trifling transgressions, they are gradually becoming less familiar
with severe cases. It is reported that the prosecution now shows a
tendency to bring many cases before the Special Courts which actually
do not belong to their jurisdiction. On the one hand this is due to the
prosecutors having greater confidence in the Special Courts, on the
other to the fact that thus a delay of the execution of the sentence
through appeal is made impossible.
5. The permanent overburdening of the Special Courts had led in some
districts to a gradual vanishing of their particular advantage, their
rapid sentencing. The Special Courts are said to proceed with such
delay that at times the prison term imposed by the court is already
absorbed by the custody preceding trial.
II
It may be stressed that said development of the Special Court
jurisdiction is undesirable. In the interest of a rapid and severe
punishment of the really outstanding crimes and transgressions it
should be attempted to maintain the character of the Special Courts as
“Courts Martial of the Home Front” [Standgerichte der Inneren Front].
1. In regard to organization, the following is pointed out:
_a._ At some Special Courts several chambers were established.
Experiences with several chambers are varying, but in general not
favorable. If the chambers are proceeding under different presidency
and with different personnel, several chambers are actually equal to
several Special Courts. Consequently it is possible that the uniformity
of jurisdiction disappears even within one Special Court. Not in all
places and instances the ability to preserve a uniform jurisdiction
within the Special Court through an exchange of ideas and experiences
and through an exchange of associate judges among the different
chambers is to be found.
_b._ Even greater is the danger of a not uniform jurisdiction
if new Special Courts with competence in a limited district are
established. It is yet considerably harder to bring about an exchange
of ideas and experiences and exchange of associate judges among
different Special Courts than among several divisions of one and
the same Special Court. Therefore, no advantage can be seen in the
establishment of a whole series of new Special Courts as it has been
noticed during the last years.
_c._ Reinforcement of the existing Special Courts by assigning
a number of additional associate judges is considered to be the most
suitable method. The uniformity of the direction of the Special Court
is being secured by the presiding judge, while the most experienced
associate judge should be made his deputy.
This strengthening of the Special Courts will in any case secure the
uniformity of jurisdiction and will make possible a more extensive
performance than in separated Special Courts. This strengthening of
course is limited by the working capacity of the president and by his
ability to exert influence. The president has to bear both in the
preparation and in the conduct of the trial, the bulk of physical and
intellectual work, a circumstance which sets a natural limit to this
form of strengthening of the Special Courts.
2. Furthermore it is stressed that the Special Courts’ return to their
proper task cannot be seen in organizational measures, but that a
sensible relief of the Special Courts from inappropriate criminal cases
must be accomplished.
_a._ A means thereto is already at hand now in article 24 of the
decree concerning court competence. According to it, Special Courts are
entitled to transfer trivial cases to the local or the criminal courts.
Apparently practice is not uniform in this respect. While some Special
Courts, in view of their excessive pressure of work, have already made
an extended use of the opportunity to transfer cases to the regular
courts, other Special Courts appear to have entirely renounced such a
transfer, carrying through themselves even unimportant criminal cases.
In general they base this on the bad experiences they made when they
transferred cases to the regular jurisdiction.
In spite of that, transfers according to article 24 ought to be
practised to a far greater extent. Through the sentences as suggested
by the prosecutions, through judges’ letters and through directing of
the criminal procedure, care has been taken that local and criminal
courts are being integrated into the framework of Special Court
jurisdiction. Thus, for instance, minor cases of illegal slaughtering,
contact with prisoners of war, etc., could be transferred. If the penal
courts were continuously entrusted with these matters, then they would
also develop a uniform experience, which as yet is not possible. As a
further means of relief, according to the present state of legislation,
a directive to the public prosecutors is suggested with the purpose
that all minor cases should be prosecuted before the penal court and
not before the Special Court. Only political and really important cases
arousing public excitement should be reserved for the Special Courts.
_b._ Hitherto the possibility of letting the president (one single
judge) take decisions in the Special Court has not been sufficiently
made use of. In simple typical cases it is not necessary to call in
assessors and to mobilize the whole apparatus of the Special Courts.
Kindly let me have your opinion of these arguments before 1 August
1943. Will you kindly especially express your opinion as regards the
advantages and the expediency of the three possibilities--criminal
chamber system, central Special Court with several deputy presidents,
and separate regional Special Courts, as well as about the question of
the restriction of competence.
[Seal of Ministry of Justice] DR. THIERACK
Certified:
[Illegible stamped signature]
Clerk
4. PEOPLE’S COURT[131]
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACT FROM LAW OF 24 APRIL 1934 AMENDING REGULATIONS
OF PENAL LAW AND CRIMINAL PROCEDURE
1934 REICHSGESETZBLATT, PART I, PAGE 341
* * * * * * *
CHAPTER III. PEOPLE’S COURT[132]
Article 1
(1) For the trial of cases of high treason and treason the People’s
Court is established.
(2) Decisions of the People’s Court are made by five members during the
trial, by three members outside the trial. This includes the president.
The president and one further member must be qualified judges. Several
senates may be established.
(3) The prosecution is represented by the Chief Prosecutor of the Reich.
Article 2
The members of the People’s Court and their deputies are appointed for
the duration of 5 years by the Reich Chancellor at the recommendation
of the Reich Minister of Justice.
Article 3
(1) The People’s Court is competent for the investigation and decision
in the first and last instance in the cases of high treason according
to articles 80 through 84, treason according to articles 89 through
92, assault against the Reich President according to article 94,
paragraph 1 of the criminal (penal) code, and the crimes listed in
article 5, paragraph 2, No. 1 of the decree of the Reich President
for the protection of people and State of 28 February 1933[133]
(Reichsgesetzblatt I, p. 83). In these cases the People’s Court also
make the decision listed in article 73, paragraph 1 of the judicature
act.
(2) The People’s Court is also competent in such cases where crimes or
offenses subject to its competency constitute at the same time another
crime or offense.
(3) If another punishable act is in factual connection with a crime
or offense subject to the jurisdiction of the People’s Court, the
proceedings against the perpetrators and participants of the other
punishable act may be brought before the People’s Court by way of
combination.
Article 4
(1) The Chief Reich Prosecutor can transfer the prosecution of the
crimes of preparation of high treason listed in articles 82 and 83 of
the penal code and of the treasonable offenses listed in articles 90
b through 90 e of the penal code to the prosecutor at the court of
appeal. The Chief Reich Prosecutor can withdraw the transfer before the
opening of the investigation.
(2) In the cases mentioned in paragraph 1 the People’s Court can
transfer the trial and decision to the court of appeal, if the Chief
Reich Prosecutor requests this when filing the indictment.
(3) Article 120 of the judicature act applies accordingly.
Article 5
(1) As far as not otherwise stipulated, the procedure is subject to the
provisions of the judicature act and the code of criminal procedure
concerning the procedure before the Reich Supreme Court in the first
instance.
(2) Against the decisions of the People’s Court no legal appeal is
permitted.
* * * * * * *
Berlin, 24 April 1934
The Reich Chancellor
ADOLF HITLER
The Reich Minister of Justice, at the same
time for the Reich Minister of the Interior
DR. GUERTNER
The Reich Defense Minister
VON BLOMBERG
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM LAW OF 16 SEPTEMBER 1939 AMENDING
REGULATIONS OF GENERAL CRIMINAL PROCEDURE, MILITARY
CRIMINAL PROCEDURE AND THE PENAL CODE
1939 REICHSGESETZBLATT, PART I, PAGE 1841
* * * * * * *
Article 5
The Special Senate of the People’s Court
(1) The special senate of the People’s Courts consists of the president
and of four members.
(2) The special senate is presided over by the president of the
People’s Court[134] and, if he cannot be present, by the vice
president. One of the members must be a president of a senate or a
professional associate judge at the People’s Court.
(3) The members and their deputies are appointed for the duration
of two business years by the Fuehrer and Reich Chancellor upon
recommendation of the Reich Minister of Justice.
* * * * * * *
Fuehrer Headquarters, 16 September 1939
The Fuehrer and Reich Chancellor
ADOLF HITLER
The Reich Minister of Justice
DR. GUERTNER
The Chief of the High Command of the Armed Forces
KEITEL
PARTIAL TRANSLATION OF SCHLEGELBERGER DOCUMENT 88
SCHLEGELBERGER DEFENSE EXHIBIT 81
EXTRACTS FROM DECREE, 21 FEBRUARY 1940, CONCERNING THE
JURISDICTION OF CRIMINAL COURTS, SPECIAL COURTS, AND
ADDITIONAL PROVISIONS OF CRIMINAL PROCEDURE
1940 REICHSGESETZBLATT, PART I, PAGE 405
Upon the basis of legal authority and with the consent of the
Plenipotentiary of the Four Year Plan [Goering] and the High Command of
the Wehrmacht, the following is ordered:
Chapter I
Jurisdiction of the Criminal Courts
* * * * * * *
Article 5
Jurisdiction of the People’s Court
(1) The People’s Court has jurisdiction for--
1. High treason (articles 80 through 84 of the Reich criminal code).
2. Treason (articles 89 through 92 of the Reich criminal code).
3. Attacks against the Fuehrer and Reich Chancellor (article 94,
paragraph 1 of the Reich criminal (penal) code).
4. Severe cases of damaging military equipment and endangering the
armed forces of friendly states (arts. 1–5 of the decree supplementing
penal provisions for the protection of the defensive strength of the
German people of 25 November 1939, Reichsgesetzblatt I, p. 2319).
5. Failure to report an intended crime (art. 139, par. 2 of the
criminal (penal) code), insofar as this crime was intended to be high
treason or treason under the jurisdiction of the People’s Court, or a
severe case of damaging military equipment.
6. Crimes under article 5, paragraph 1 of the decree concerning
protection of people and state, of 28 February 1933 (1933
Reichsgesetzblatt I, p. 83).
7. Crimes under article 1, paragraph 1 of the law against economic
sabotage, of 1 December 1936[135] (1936 Reichsgesetzblatt, Part I, page
999).
(2) In cases of acts punishable under articles 82, 83, 90b through 90e,
92 of the criminal (penal) code, the Chief Reich Prosecutor at the
People’s Court can transfer the prosecution to the attorney general at
the court of appeal.
(3) In the cases described in paragraph 2, the People’s Court, in
agreement with the Chief Reich Prosecutor, can transfer the trial and
decision to the court of appeal, as long as the trial has not been
directed to take place before the People’s Court.
(4) The Chief Reich Prosecutor can withdraw the transfer and his
consent to a transfer as long as the trial has not begun before the
court of appeal.
* * * * * * *
Final Regulations
Section 40
Validity in the Protectorate
This decree is also valid for the German courts in the Protectorate of
Bohemia and Moravia.
Berlin, 21 February 1940
The Plenipotentiary for the Administration of the Reich
FRICK
PARTIAL TRANSLATION OF DOCUMENT NG-938
PROSECUTION EXHIBIT 438
LETTER FROM THE OFFICE OF THE SUPREME CHIEF OF THE SA, SIGNED BY
DEFENDANT KLEMM, 4 DECEMBER 1936, PROPOSING FIVE SA LEADERS AS
ASSOCIATE JUDGES OF THE PEOPLE’S COURT
Kl/Hz
Supreme Chief of the SA
Adjutant’s office of the Chief of Staff
SA Liaison officer in the Reich Ministry of Justice.
Correspondence Record: None
Berlin W 8 4 December 1936
Voss-strasse 1
Subject: Members of the SA as members of the People’s Court
Enclosures: [Handwritten] Proposal for supplementary
appointments of the below-mentioned five nominees. W. 4 December.
To: The Reich Ministry of Justice, Section I, Special attention:
Ministerial Counsellor Wanger, Berlin W, Wilhelmstrasse 65.
I understand that more honorary associate judges [ehrenamtliche
Beisitzer] of the People’s Court are to be appointed. _On behalf of
the Chief of Staff_ [of SA] the following SA leaders are proposed:
Obergruppenfuehrer Arthur Boeckenhauer, Munich, Barerstrasse 11
Gruppenfuehrer von Hoerauf, Munich
Brigadefuehrer Hanns Bunge, Munich
Brigadefuehrer Daniel Hauer, Stuttgart, Herdweg 72
Oberfuehrer Erich Kaul, Berlin, Wilhelmstrasse 106
I should be grateful if the above-named would be included among the
nominees proposed to the Fuehrer and Reich Chancellor.
Chief of the adjutant’s office
BY ORDER:
[Signed] KLEMM
Obersturmbannfuehrer
PARTIAL TRANSLATION OF DOCUMENT NG-160
PROSECUTION EXHIBIT 124
LETTER FROM FREISLER, PRESIDENT OF THE PEOPLE’S COURT, TO THE REICH
MINISTER OF JUSTICE, 17 JANUARY 1944, TRANSMITTING SUMMARY OF ACTIVITY
OF THE PEOPLE’S COURT FROM 1 JANUARY TO 31 DECEMBER 1943
The President of the People’s Court
1440 E-1. 123g
[Stamp] 01/3
Berlin W 9, 17 January 1944
Bellevuestrasse 15
Telephone 22 18 23
18 January 1944
[Stamp] Secret
To: the Reich Minister of Justice
Berlin W 8
2 Enclosures
[Stamp] Reich Ministry of Justice
18 January 1943
Dept. IV
[Initial] Th [Thierack]
My dear Reich Minister!
Attached please find two enclosures giving you a summary on the
activity of the People’s Court from 1 January to 31 December 1943.
The activity of the special senate is not contained therein as the
documents were lost in the terror attack of 24 November 1943.
Heil Hitler!
Obediently yours
[Signed] FREISLER
[Handwritten] taken out 1 copy [signed] KLEMM
1440E-1. 116
SUMMARY ON THE ACTIVITY OF THE PEOPLE’S COURT
FROM 1 JANUARY UNTIL 31 DECEMBER 1943
-------------------------------+------+------+------+------+------+------+-----
| 1st | 2d | 3d | 4th | 5th | 6th |
|senate|senate|senate|senate|senate|senate|Total
-------------------------------+------+------+------+------+------+------+-----
1. Number of sentences | 505 | 177 | 114 | 186 | 140 | 190 |1,312
| | | | | | |
2. Number of decrees | 232 | 54 | 85 | 122 | 97 | 127 | 717
| | | | | | |
3. Number of persons sentenced |1,332 | 610 | 141 | 259 | 384 | 612 |3,338
thereof those under | | 6 | | 5 | | 1 | 12
18 years of age. | | | | | | |
| | | | | | |
4. Number of days of session | 550 | 164 | 115 | 131 | 162 | 148 |1,270
thereof those outside of | 183 | 83 | | 27 | 116 | 71 | 480
Berlin. | | | | | | |
| | | | | | |
5. Death sentences | 769 | 368 | 49 | 72 | 200 | 204 |1,662
| | | | | | |
6. Life terms | 8 | 2 | 4 | 2 | | 8 | 24
| | | | | | |
7. 15–10 years of hard labor | 80 | 29 | 6 | 25 | 48 | 78 | 266
| | | | | | |
8. 10–5 years of hard labor | 234 | 92 | 15 | 37 | 47 | 161 | 586
| | | | | | |
9. Less than 5 years of hard | 97 | 57 | 12 | 19 | 51 | 64 | 300
labor. | | | | | | |
| | | | | | |
10. Penal camp: | | | | | | |
_a._ 15–10 years | | | | 1 | 3 | 6 | 10
_b._ 10–5 years | 5 | 2 | 5 | 4 | | 5 | 21
_c._ less than 5 years | 1 | 1 | 5 | 2 | | 2 | 11
| | | | | | |
11. Imprisonment | 87 | 43 | 25 | 42 | 20 | 42 | 259
| | | | | | |
12. Fined: | | | | | | |
_a._ by judgment | | | | | | |
_b._ additional | 6 | | | | | | 6
| | | | | | |
13. Acquittals | 50 | 16 | 12 | 47 | 14 | 42 | 181
| | | | | | |
14. Procedure suspended: | | | | | | |
(persons) | | | | | | |
_a._ by judgment | 1 | | 8 | 8 | 1 | | 18
_b._ by decree | 20 | 4 | 1 | 1 | 28 | 6 | 60
| | | | | | |
15. Settled in other ways | 381 | 92 | 22 | 90 | 35 | 103 | 723
(persons) | | | | | | |
-------------------------------+------+------+------+------+------+------+-----
[Handwritten] IV a 35. 44g
TRANSLATION OF DOCUMENT NG-186
PROSECUTION EXHIBIT 340
MEMORANDUM FROM FREISLER, PRESIDENT OF THE PEOPLE’S COURT, 1 APRIL
1944, CONCERNING ASSIGNMENT OF VARIOUS TYPES OF CASES TO THE SEVERAL
SENATES OF THE PEOPLE’S COURT
[Handwritten] To the Minister
3204-1. 65
The examination of the charges filed during the first quarter of 1944
shows the necessity of a change in the procedure. For the charges
coming in after 1 April 1944, I distribute our work as follows:
A
The first senate will take up--
I. _a._ Attacks against the Fuehrer,
_b._ Attacks against leading men of the State, the movement [Nazi
Party] or the armed forces,
_c._ Attacks against Germans in foreign countries, on grounds
of their German nationality to thereby hit the Reich, or against
representatives of the Reich, insofar as these attacks go beyond verbal
attacks; in this category also belong all crimes against section 5 of
the decree of 28 February 1933.[136]
II. _a._ Punishable acts of Germans of the intelligentsia or of
the economic leadership,
_b._ Acts hostile to the State based on religious convictions from
the Gauen: Baden, Bayreuth, Berlin, Danzig-West Prussia, Duesseldorf,
Essen, Franconia, Carinthia, Cologne, Aix-la-Chapelle, Main-Franconia,
Moselland, Munich-Upper Bavaria, Lower Danube, Upper Danube, Upper
Silesia, Salzburg, Swabia, Styria, Sudetenland, Tyrol-Vorarlberg,
Wartheland, Westmark, Vienna, Wuerttemberg-Hohenzollern, and from the
Government General, excepting both treason [Landesverrat] and Marxist
high treason.
III. Punishable acts of Germans from Alsace, from Luxembourg, Lower
Styria, or Upper Carinola and punishable offenses in these areas;
punishable acts of Germans in Bohemia and Moravia.
IV. Marxist high treason from Berlin and the areas incorporated since
the beginning of the war.
[stamp] The Minister is informed 20 April
V. Non-Marxist high treason, with the exception however of separatist
(often called legitimist) high treason, insofar as it concerns the Alps
and Danube and Gauen or Bavaria.
VI. Defeatism, cases of undermining of morale and intentional evasion
of military service (Art. 5, KSSVO) from the Gauen Berlin, Brandenburg,
Silesia, Pomerania, East Prussia, Mecklenburg, Sudetenland, Upper
Silesia, and the Reich Gauen Danzig-West Prussia, and the Wartheland.
VII. Punishable offenses of foreigners [Fremdvoelkischer]--except high
treason--from Bohemia, if these offenses were committed after the
establishment of the protectorate.
VIII. Impeachment of non-German civilians for punishable offenses
against the Reich or the occupying power in the occupied northern areas
according to the special instructions for the area.
IX. Chiefly punishable acts committed abroad--with exception of high
treason.
B
The second senate will take up--
I. All other cases of Marxist high treason within the borders of the
Altreich [pre-1938 Reich].
II. Impeachment of non-German civilians for punishable offenses against
the Reich or the occupying power in France and Belgium in accordance
with the special directions pertaining thereto.
III. Acts hostile to the State based on religious convictions from
the Gauen Halle-Merseburg, Hamburg, Hessen-Nassau, Kurhessen,
Magdeburg-Anhalt, Mark Brandenburg, Mecklenburg, Lower Silesia,
East-Hannover, East Prussia, Pomerania, Saxony, Schleswig-Holstein,
South Hannover-Brunswick, Thuringia, Weser-Ems, Westphalia-North,
Westphalia-South--with exception of high treason.
IV. Endangering of the armed forces of befriended states (sec. 5 of the
decree of 25 November 1939).
C
The third senate will take up--
I. High treason in favor of the Soviet Union and Poland.
II. Defeatism, undermining of morale, and intentional evasion of
military service (Art. 5, KSSVO) from the entire Reich, as far as these
affairs are not dealt with by the first senate (A II and A VI) or the
second senate (B III), excepting however the Gauen Essen, Duesseldorf,
Cologne-Aix-la-Chapelle, Moselland, Westphalia-North, Westphalia-South,
and Saxony.
D
The fourth senate takes up--
I. High treason in favor of all countries of the world except the
Soviet Union and Poland.
II. Damaging of means of defense.
III. Punishable offenses of Germans from Lorraine and punishable
offenses in Lorraine.
IV. Punishable offenses of foreigners from Moravia, in case they were
committed after the establishment of the protectorate, however not high
treason in favor of the Soviet Union or Poland.
E
The fifth senate takes up--
I. Punishable crimes except high treason and defeatism, undermining
of morale as well as evasion of military service, in the Reich Gauen
Vienna, Upper and Lower Danube.
II. Separatist high treason involving the Reich Gauen Vienna, Upper and
Lower Danube, Styria, Carinthia, Salzburg, and Tyrol-Vorarlberg.
F
The sixth senate takes up--
I. Punishable offenses except treason and defeatism, undermining of
morale and evasion of military service in the Reich Gauen Styria and
Carinthia, Salzburg, and Tyrol-Vorarlberg.
II. Separatist high treason involving Bavaria.
III. Accusations according to the law against sabotage of the economy
of 1 December 1936.
IV. Accusations according to the decree of the Fuehrer for the
protection of the armament economy from 21 March 1942.
V. Defeatism, undermining of morale, intentional evasion of
military service (Art. 5, KSSVO) from the Gauen Essen, Duesseldorf,
Cologne-Aix-la-Chapelle, Moselland, Westphalia-North, Westphalia-South,
and Saxony, insofar as these cases are not taken care of by the first
(A II and A VI) or the second senate (B III).
G
Impeachment for failing to report a crime to be dealt with by the
senate, competent for the crime involved.
H
If a defendant is accused of high treason or treason against his
country, the assignment is to be determined by the accusation of
treason, if this is not irrelevant.
Favoring the enemy by treasonous activities, defeatism, undermining of
morale, or evasion of military service does not bear any influence on
the assignment.
Interrelated cases may be handled by _one single_ senate in
agreement with the other senates involved. Cases of nonagreement are to
be submitted to me.
J
For charges, entered before 1 April 1944 the former plan of
distribution of work applies, however, I wish to be notified by 1 June
whether and which of these accusations are not yet settled.
Berlin, 1 April 1944
DR. FREISLER
TRANSLATION OF DOCUMENT NG-157
PROSECUTION EXHIBIT 103
LETTER FROM THE REICH MINISTER OF JUSTICE TO THE PRESIDENT OF THE
PEOPLE’S COURT, 18 OCTOBER 1944, COMMENTING UPON ITS FUNCTIONS AND THE
SELECTION OF PRESIDING JUDGES “IN PARTICULARLY IMPORTANT POLITICAL
CASES”
[Handwritten] MIi Berlin, 18 October 1944 [Handwritten]T 276
_Copy_
The Reich Minister of Justice
To: The President of the People’s Court, Dr. Freisler
Berlin W 9
Bellevuestrasse 15
[Handwritten] 18 October Bz
Dear Mr. President:
The importance of the People’s Court for the maintenance of the home
front has greatly increased and is bound to increase still further
after carrying into effect of the Fuehrer’s decree of 20 September
1944. The functions of the People’s Court must, therefore, not be
confined to meting out adequate punishment to the accused, they must
moreover fulfill the specific task of political leadership.
This is inherent in the fact that the population not only recognizes
the sentences of the People’s Court as right, but that, moreover, it
also learns why any particular sentence has become expedient.
The President of the senate is often hampered in conducting the
proceedings, because in some particularly important political
cases--including cases occurring frequently--the political evaluation
of the offense is not always sufficiently shown up with a view to
the prevailing situation of the people and of the Reich. If it is
sufficient in nonpolitical criminal cases to show up the perpetrator,
the deed and the effects of both on the national community and thus to
find a just sentence, this is not sufficient for cases tried in the
People’s Court. With due stress for the political aspect of the case it
is necessary to discuss the conditions of the Reich and of the people.
When conducting proceedings the president must be able to justify why
this particular offense is especially dangerous for the population
and the Reich and why it is especially grave. Everybody who is taking
part in the proceedings must have the inner conviction when leaving
the courtroom not only that the punishment was just but also why it
was just. This also and quite particularly applies to the so-called
cases of defeatism which from now on will be tried in an increased
measure. Likewise, utterances must not be allowed to spring up which,
for instance, say that proceedings before a certain senate mean certain
death, or that the term “general public” is stretched too far in its
legal definition. Whenever such utterances occur they can only be
parried by a manner of conducting the proceedings which is superior,
calm and--if need be--stone cold. In that case the people must always
understand why in these crucial months of the war the instigator
deserves death--but not so the gossip monger unless it happened not to
be merely silly gossip but a gossip which became dangerous because it
was unscrupulous.
The above applies in corresponding measure to all other cases tried
before the People’s Court.
I, therefore, would like to ask you, Mr. President, to make a special
endeavor especially that only such judges will preside in particularly
important political cases, who master the material involved also along
political lines and who warrant that they are able not only to pass
just sentences but also by their manner of conducting the proceedings
to convince those present of the correctness of the sentence. If any
difficulties as to personnel should occur here, please let me have your
oral report.
Heil Hitler!
Yours
DR. THIERACK
5. HEREDITARY HEALTH COURTS[137]
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
LAW OF 14 JULY 1933 FOR THE PREVENTION OF PROGENY WITH HEREDITARY
DISEASES (GESETZ ZUR VERHUETUNG ERBKRANKEN NACHWUCHSES)
1933 REICHSGESETZBLATT, PART I, PAGE 529
The Reich government has enacted the following law, which is
promulgated herewith:
Article 1
1. Whoever is afflicted with a hereditary disease can be sterilized by
operation, if according to experience of medical science a hereditary
impairment of his progeny, either physical or mental, is to be expected
in all likelihood.
2. Whoever suffers from one of the following diseases is afflicted with
a hereditary disease according to this law--
(1) Hereditary imbecility.
(2) Schizophrenia.
(3) Circular (manic-depressive) psychosis.
(4) Hereditary epilepsy.
(5) Hereditary St. Vitus’ dance (Huntingtonian Chorea).
(6) Hereditary blindness.
(7) Hereditary deafness.
(8) Bad hereditary physical malformation.
3. Any person suffering from chronic alcoholism can also be sterilized.
Article 2
1. The right to file such an application rests with the person to be
sterilized. If he is incompetent or has been put under tutelage because
of feeble mindedness or being under 18 years of age, this right rests
with the legal representative and is subject to approval by the court
of guardianship. In all other cases of limited competence, the consent
of the legal representative is needed for the application. In case an
adult person has been under guardianship, the guardian’s consent is
mandatory.
2. A certificate of a physician, approved in Germany, has to be
attached to this application, stating that the person to be sterilized
has been familiarized with the meaning and the consequences of a
sterilization.
3. The application can be rescinded.
Article 3
Sterilization can also be proposed by--
1. A public health officer.
2. The superintendent of a hospital, sanatorium, asylum, or of a
penitentiary for its inmates.
Article 4
The application is to be made in writing and is to be submitted to the
attention of a hereditary health court. The facts, upon which this
application is based must be corroborated by a medical expert opinion
or in some other way. The office [of the hereditary health court] must
inform the public health office of this application.
Article 5
The hereditary health court of the district where the person to be
sterilized resides has jurisdiction over the decision.
Article 6
1. The hereditary health court is to be affiliated with a local court.
It is composed of a local court judge as president, a public health
officer and another physician approved in the German Reich, with
expert knowledge of matters pertaining to eugenics. A deputy is to be
appointed for each member.
* * * * * * *
Article 10
1. The higher hereditary health court is to be affiliated to a district
court of appeal covering the same district. It consists of a member
of the district court of appeal, a public health officer and another
physician, approved in Germany, with expert knowledge of matters
pertaining to eugenics. A deputy is to be appointed for each member.
Article 6, paragraph 2 applies accordingly.
* * * * * * *
3. The decisions of the higher hereditary health courts are final.
Article 11
1. The operation necessary for the sterilization is to be performed
only in a hospital and by a physician approved in Germany. He can
perform this operation only after the decree for sterilization has
become valid. The supreme provincial authority will appoint the
hospitals and physicians authorized to perform the sterilization.
The operation is not to be performed by the physician who made the
application or who was a member of the board during the proceedings.
Article 12
1. Once approved by the court, this sterilization has to be performed
even against the will of the person to be sterilized, unless he made
the application himself. The public health officer has to arrange the
necessary measures with the police. Direct force may be used if other
measures do not suffice.
2. If circumstances demand a re-examination of the facts, the
hereditary health court has to reopen the case and to suspend the
sterilization order temporarily. In case of a rejection of the
application a reopening of the case is permissible only if new facts
have appeared which justify the sterilization.
* * * * * * *
Berlin, 14 July 1933
The Reich Chancellor
ADOLF HITLER
The Reich Minister of the Interior
FRICK
The Reich Minister of Justice
DR. GUERTNER
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
EXTRACTS FROM DECREE OF 5 DECEMBER 1933 FOR THE
EXECUTION OF THE LAW FOR THE PREVENTION OF
PROGENY WITH HEREDITARY DISEASES
1933 REICHSGESETZBLATT, PART I, PAGE 1021
* * * * * * *
Section 1
(Concerning article 1, paragraphs 1 and 2 of the basic law)[138]
A condition for sterilization is that the disease, although only
temporarily manifested from a latent tendency, has been established
beyond any doubt by a doctor approved by the German Reich.
* * * * * * *
Section 3
(Concerning Articles 3 and 4)
* * * * * * *
If an approved doctor in the course of his official activity learns
of a person suffering from a hereditary disease (art. 1, pars. 1 and
2) or from chronic alcoholism, he must report this without delay to
the competent district public health officer using the form printed
as supplement 3 (p. 1024). Other persons who are concerned with the
treatment, examination, or advising of sick persons, have the same
obligation. In the case of inmates of institutions, it is the head of
the institution who has the duty to report the case.
* * * * * * *
Berlin, 5 December 1933
The Reich Minister of the Interior
FRICK
The Reich Minister of Justice
DR. GUERTNER
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
THIRD DECREE FOR THE IMPLEMENTATION OF THE LAW FOR THE
PREVENTION OF PROGENY WITH HEREDITARY DISEASES,
25 FEBRUARY 1935
1935 REICHSGESETZBLATT, PART I, PAGE 289
* * * * * * *
Article 4
Authorized persons and counsel can be barred from appearance before
the hereditary health courts and higher hereditary health courts for
important reasons; this decision is uncontestable.
* * * * * * *
Article 12
1. The Reich Minister of Justice determines the location and the
district of the court which is to render the decision, and the number
of court chambers to be established. He may transfer the exercise of
this authority to the presidents of the district courts of appeal.
2. The hereditary health courts are to be regarded as parts of the
local courts, and higher hereditary health courts are to be regarded as
parts of the district courts of appeal, with respect to administration
and official supervision.
3. The president of the district court of appeal determines the number
of medical members and deputies of the hereditary health courts, as
needed.
* * * * * * *
Berlin, 25 February 1935
The Reich Minister of the Interior
The deputy: PFUNDTNER
The Reich Minister of Justice
The deputy: DR. SCHLEGELBERGER
The Reich Minister of Labor
The deputy: DR. KROHN
TRANSLATION OF DOCUMENT NG-346
PROSECUTION EXHIBIT 101
CIRCULAR OF THE REICH MINISTRY OF JUSTICE TO ALL PRESIDENTS
OF THE COURTS OF APPEAL, 11 MAY 1936, ANNOUNCING COURSES
FOR JUDGES DEALING WITH HEREDITARY DISEASE CASES
The Reich Minister of Justice
No. 6234-IV. b 472
Berlin W 8, 11 May 1936
Wilhelmstr. 65
A1 Jaeger 0044
To: All Presidents of the Courts of Appeal
Subject: Courses for judges dealing with hereditary disease cases
It is intended that during the second half of the month of June
courses will be held in Berlin and Munich to train presiding judges
of the courts and courts of appeal dealing with cases of hereditary
diseases in matters of the marriage health law. The course in Berlin
will probably take place between 15 and 17 June and the course in
Munich between 22 and 24 June. In order to save expenses, only the
presiding judges of the courts and courts of appeal dealing with cases
of hereditary disease will be admitted to these courses, but not
their deputies. The course in Berlin is intended for the judges of
the district courts of appeal of Berlin, Brunswick, Breslau, Celle,
Dresden, Duesseldorf, Hamburg, Hamm, Jena, Kassel, Kiel, Koenigsberg
Pr., Marienwerder, Naumburga. S., Oldenburg, Rostock, and Stettin. The
course in Munich is intended for the judges of the courts of appeal
in Bamberg, Darmstadt, Frankfurt/Main, Karlsruhe, Munich, Nuernberg,
Stuttgart, and Zweibruecken. The nonresident participants will have
their traveling expenses refunded in accordance with paragraph II of
the traveling expenses law. The expenses will be paid by the director
of the office to which the official belongs. The amounts paid are to be
recorded under chapter 4, title 25 of the budget. Please inform me of
the names of the participating judges by 31 May 1936.
An opportunity for a discussion will probably be given on the last day
of each course. During the course of these discussions questions may
be raised concerning the marriage health law and the law on prevention
of progeny with hereditary disease. In consequence of the large number
of participants it is however necessary that each judge who wishes
to discuss a question will submit it in triplicate directly to us
(Berlin W. 9, Vosstrasse 5, Office b) not later than 31 May 1936. If
several questions are submitted a separate sheet is to be used for
each question. In the case of medical questions a summarized statement
of the case is to be attached, if possible; in other cases it is also
advisable to state briefly which particular case led to the question.
The name, official position, and the court of the judges should be
marked at the top of the page on the left hand side.
Enclosed are copies for the presidents of the district courts and for
the presiding judges of the main hereditary health courts.
Deputy
Certified [Signed] DR. VOLKMAR
[Signature illegible]
[Stamp: Reich Ministry of Justice] Clerk
TRANSLATION OF DOCUMENT NG-789
PROSECUTION EXHIBIT 432
ANNOUNCEMENT BY THE REICH MINISTER OF JUSTICE, 17 DECEMBER
1943, CONCERNING THE APPOINTMENT OF A REFERENT WITH THE DUTY
OF TRAINING JUDGES AND OTHERS IN A RACIAL, HEREDITARY, AND
CRIMINOLOGICAL-BIOLOGICAL LINE OF THOUGHT
[initials] KLE [Klemm]
_Internal Regulation_
Reference: The consideration of racial, hereditary, and
criminological-biological [kriminalbiologische] viewpoints in
educational questions
With regard to the necessity of putting more emphasis on the racial,
hereditary, and criminological-biological viewpoints in connection with
educational questions within the meaning of my internal regulation of
12 June 1943--1200 E--Ip 2 340--Oberlandesgerichtsrat Meinhof, without
prejudice to his sphere of office in department VI, is also assigned to
department II as Referent.
The range of his duties comprises--
The training of judges, public prosecutors, jurists, and other
officials, as well as of the entire new generation in a racial,
hereditary, and criminological-biological line of thought.
Berlin, 17 December 1943
DR. THIERACK
1200 E--Ip 2 383
[Handwritten] Adjutant KLEMM
TRANSLATION OF KLEMM DOCUMENT 58
KLEMM DEFENSE EXHIBIT 58
DECREE SIGNED BY DR. CONTI[139] AND DEFENDANT KLEMM, 14 NOVEMBER 1944,
TEMPORARILY SUSPENDING ACTIVITIES OF HIGHER HEREDITARY HEALTH COURTS,
AND AUTOMATICALLY LEGALIZING PENDING CONTESTED DECISIONS
1944 REICHSGESETZBLATT, PART I, PAGE 330
Seventh decree concerning the execution of the law for the prevention
of progeny with hereditary diseases
On the basis of Article 17 of the law for the prevention of progeny
with hereditary diseases of 14 July 1938 (Reich Law Gazette I p. 529)
in combination with the decree of the Fuehrer concerning the total war
effort of 25 July 1944 (Reich Law Gazette I p. 161) it is decreed in
agreement with the Reich Minister and chief of the Reich Chancellery,
the chief of the Party Chancellery and the Plenipotentiary General for
the administration of the Reich:
Article 1
(1) The higher hereditary health courts discontinue their activity
temporarily--for the duration of the suspension the definite decision
is with the hereditary health courts.
(2) A trial pending in the higher hereditary health courts ends
with the coming into effect of this decree. With the termination
the contested decision becomes legal. The hereditary health court
investigates officially, whether a resumption of the proceedings
according to article 12, paragraph 2, of the law for prohibiting
carriers of inherited diseases to reproduce is ruled in consideration
of the terminated proceedings.
(3) Paragraphs 1 and 2 are not valid for cases in which the higher
hereditary health court has already passed a resolution at the time
when this decree came into effect and has merely not yet delivered it.
Article 2
This decree goes into effect on 1 December 1944.
Berlin, 14 November 1944.
The Reich Minister of the Interior
As deputy: DR. L. CONTI
The Reich Minister for Justice
As deputy: KLEMM
6. CIVILIAN COURTS MARTIAL
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
DECREE OF 15 FEBRUARY 1945 ON CIVILIAN COURTS MARTIAL
PROCEDURE
1945 REICHSGESETZBLATT, PART I, PAGE 30
The seriousness of the fight for existence of the Reich demands of
every German determination to fight to the last, and devotion to the
utmost. Whoever tries to withdraw from his duties towards the common
cause, especially if it is done through cowardice or for personal
profit, must at once be called to account with the necessary severity,
so that the State will not suffer damage through the failing of one
single person. Therefore, the following has been decreed upon the order
of the Fuehrer in agreement with the Reich Minister and chief of the
Reich Chancellery, the Reich Minister of the Interior and the chief of
the Party Chancellery:
I
Courts martial are to be established in Reich defense districts which
are menaced by the approach of the enemy.
II
1. The court martial consists of a judge of a criminal court as
president and a member of the Leadership Corps [of the Nazi Party], or
a leader of a unit affiliated with the National Socialist Party, and of
an officer of the armed forces, the Waffen SS [armed SS] or the police,
as associate judges.
2. The Reich defense commissioner appoints the members of the tribunal
and designates a state attorney as public prosecutor.
III
1. The courts martial have jurisdiction for all kinds of crimes
endangering the German fighting power or undermining the people’s
fighting strength and will to fight.
2. For these proceedings, the regulations of the code of criminal
procedure will be applied.
IV
1. The sentence of the court martial will be either death, acquittal,
or commitment to the regular court. The consent of the Reich defense
commissioner is required. He gives orders for the time, place, and kind
of execution.
2. If the Reich defense commissioner is not available, but the
immediate execution is indispensable, the public prosecutor is
authorized to act in his place.
V
The necessary regulations for amendment, changes and execution of
this decree are issued by the Reich Minister of Justice in agreement
with the Reich Minister of the Interior and the chief of the Party
Chancellery.
VI
This decree goes into effect immediately upon its promulgation over the
radio.
Berlin, 16 February 1945
The Reich Minister of Justice
THIERACK
D. Expert Opinion by Defense Witness Professor
Jahrreiss concerning the Development of
German Law
EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS
PROFESSOR JAHRREISS[140]
_DIRECT EXAMINATION_
DR. SCHILF (counsel for defendants Klemm and Mettgenberg):
Professor Jahrreiss, may I ask you to tell us your name, your
profession, and your residence.
WITNESS JAHRREISS: Professor at Cologne University; at present
on the staff of editors of the record of IMT. Do you also wish me to
name my residence, Counsel?
Q. Yes.
A. At this time, in Nuernberg. I was born at Dresden; the date of birth
is 19 August 1894.
Q. So that I can afford the Court the opportunity to acquaint itself
with your particular research field, may I ask you briefly to describe
to us your field of research as professor of law.
A. My work since 1923 has dealt with the fields of constitutional
law, international law, and the law by the League of Nations, general
constitutional law, and philosophy of law.
Q. May I ask you, just by way of example, to mention your own
publications--those of a scientific nature.
A. Well, that is rather a lot; but publications which concern this
subject here, I could mention--_Law and Calculability_, on the
foundations of law and state; another publication on _The Relation of
the Constitution of the Reich to the League of Nations_; then in the
textbook which Anschuetz and Thoma edited on German Constitutional Law,
my work about _The Equality of the Citizens before the Law_; and
above all, my own version of _The German Constitutional System_,
of the year 1930.
Q. Concerning the first problem, the German constitutional law, that
is the subject on which I wish to start. My first question will open
the direct examination. Is it correct that Hitler in the order of the
so-called Third Reich was the supreme law giver?
A. Yes, that is correct, although that was not so from the very
beginning of that era. That only happened in the course of events. But
at the latest, if you’d like me to mention a date, that occurred when
the offices of Chancellor and Reich President were united in him; that
is to say, 1 August 1934.[141] That is the latest date.
Q. It was like this then--Hitler’s authority developed gradually until
it reached its final culmination?
A. Yes, that is correct. If I may add this, one must say that the
development under Hitler followed a development which occurred prior to
his own era.
Q. Do you mean to say by that, that 30 January 1933 did not bring about
a complete break of the development prior to Hitler?
A. Yes, that is what I would say.
Q. Do you also mean to say by this that the so-called change-over, that
is the seizure of power by the National Socialist Party, was legal?
A. That is a very difficult question. First of all it is difficult
because one would have to say in greater detail what events represented
the change-over, whether one adheres to the formation of the government
on 30 January 1933, or whether one discusses the enabling act,
promulgated on 24 March 1933,[142] or how far altogether one wants to
extend the events of the change-over. I can only answer conditionally.
If one considers only the formation of the government, that is to say
the act of entrusting Hitler with the Chancellorship on 30 January
1933, and if by “legal”, one means the purely outward formality,
then it cannot be denied that the operation was carried out legally,
namely, under Article 53 of the Weimar constitution,[143] according to
which the Reich President forms the cabinet, and the Parliament--the
Reichstag--only afterwards has the opportunity to have a destructive
influence on the formation of the cabinet. Under the Weimar
constitution, the Reichstag does not form the cabinet alone or together
with another organ, but the President does that. The other organ is
immediately elected by the people of the Reich. That is why the Weimar
constitution contains quite rightly article 54[144] which incorporates
the parliamentary system by establishing the institution of the vote
of nonconfidence and entrusts the President with the formation of the
cabinet. Yes, in fact one has to say a little more. In the formation of
the government, the appointment of the Reich Chancellor is the sole act
of the President; side by side with, let us say, the dismissal, with
which the countersignature of the Chancellor is purely formal.
In the development of the Weimar constitution, after initial wavering,
there evolved the principle that the new Chancellor appointed or
signed the dismissal of the old Chancellor and his own appointment,
which is really illogical. I don’t think there is any need for me
to explain that any further. But as the Weimar constitution in
Article 50[145] provided that every provision made by the president
should be countersigned by the Reich Chancellor, or one of the Reich
ministers--at least one--one was compelled to have even the appointment
of the new Chancellor countersigned. That means naturally for the new
Chancellor that he drags himself out of the mire by his own efforts.
Counsel, if your question refers to 30 January--formally the procedure
was orderly; a great deal more difficult is the question concerning
the Reich law of 24 March 1933, that famous law [the Enabling Act],
the validity of which was doubted so much; it is much more difficult
to answer if your question refers to that. That law has as its main
contents--I can almost say with a little exaggeration--the elimination
of the division of powers. Three provisions or groups of provisions of
the Weimar constitution are excepted, but for the rest the government
could now promulgate laws even if that meant changing the constitution
of the Reich; for the normal life of the people, legislators, and
supreme administrators are one and the same thing. That is a basic
change of the entire structure of the Weimar constitution. And I can
say frankly if I, during the first years of the Weimar constitution, as
an expert on constitutional law, had been asked whether the Reichstag,
even if there was a majority, could not change the constitution under
article 76[146]--if the Reichstag would make such decisions, could
pass a law which, in effect, eliminates the Reichstag,--if I had been
asked such a question I would have said there is nothing about that
in article 76 that restricts the passing of such laws; but there is
not only legality, there is also legitimacy in every constitution;
there are certain basic decisions contained in any constitution which
one cannot abandon without the entire losing of his character. But I
must say the German science of constitutional law, particularly in
the person of the most fanatic champions of democracy, did not take
that point of view. Gerhard Anschuetz, who if it is permitted to say
anything like that about a republic, was the crown jurist of the Weimar
republic, wrote the commentary to the constitution of the German
Reich which is the authoritative commentary. Gerhard Anschuetz whose
last position was that of professor at Heidelberg, was, I might say,
a temple guard of the Weimar constitution, and if he only thought an
attempt had been made to shake the foundations of democracy, perhaps
by creating a group of judges who could have reviewed decisions by
the Reichstag, he would have been furious. I must say that because
only now it becomes understandable what authority Anschuetz’ opinion
carried, which was concurred in by all German constitutional lawyers,
that there were no limits for article 76, concerning the amendment
of the constitution. Anschuetz stated repeatedly that the Reichstag,
with the majority that can amend the constitution, could abolish the
republic, the federal state, democracy, even basic laws. No judge
was entitled to doubt the constitutional validity of such a law. If
previously I said that concerning that law of 24 March, one might have
legal misgivings, I had something different in mind. I believe if I
had been the President of the Reich, and if I had had the knowledge of
the events, I would have refused to issue that law and to promulgate
it, for it is the Reich President who has to examine whether the law
has come about in a constitutional manner. I am convinced, however,
that on no account procedures can be constitutional when the majority
present, that is, the majority which passes the resolution, did not
constitute the majority of the Reichstag as elected [by the people]
but constituted the majority of a Reichstag that had been curtailed by
the executive. Much has been said about that, and there is something
else that enters into that question, and I have to say that quite
openly that has not been discussed before. At that session at which
the Reichstag passed that law which changed the constitution, the
Reich Chancellor felt that the Reichstag might make difficulties, and
he threatened with revolutionary forces; but even that doesn’t help
and, particularly, it doesn’t help according to Anschuetz. Anschuetz
and [other] German experts on constitutional law consistently upheld
the view that the assurance of the Reich President, given by his
signature, that the law had been passed in an orderly manner excluded
all scrutiny. Therefore, we have to say, under objective law there may
be misgivings, serious misgivings about that procedure, but according
to what at the time was the guaranteed practice of constitutional law
which was upheld by the opinion of the most fanatic upholders of the
Weimar constitution, the signature by the Reich President excluded
any scrutiny as to whether the law came about in an orderly manner. I
believe that I have now indicated that the question for the so-called
legality of the change-over, even purely formal, is very difficult to
answer, but for the rest it seems to me that this is only an argument
about words; [actually, it was] a revolution, and it was meant to be a
revolution. Hitler even thought it was the only real revolution. And
according to its aim and meaning it [i.e., a revolution] cannot be
legal; but in any case, if it comes off--that is how it always will be
in the world of states--it provides the soil on which the new order,
slowly or more quickly, evolves, according to custom, and custom after
all is the source of all law.
Q. Professor, we are particularly interested to explain to the Tribunal
the constitutional status of the so-called Hitler decrees. May I ask
you, now that you have answered the question of legality on the one
hand and theories of legitimacy on the other hand, would you now, from
the developments, explain the constitutional status of the Hitler
decrees within the meaning of my first question as to whether he was
supreme legislator of the Reich.
A. I am afraid I shall have to go back a bit for that because that
question really concerns the entire question of the so-called
constitution of the Third Reich. Even for many a German, Hitler’s
authority is a mystery, but it must be that for all those who are
not Germans. Many misunderstandings which I encounter again and
again in conversations are due to the fact that certain unavoidable
factors which are involved in any ruling, are ascribed to Hitler’s
regime. A further difficulty consists in the fact that the peculiar
constitutional insecurity in which most of the states in Europe have
lived for many years, from the point of view of their constitution,
produces phenomena which do not restrict themselves to Hitler’s regime,
but only appeared there particularly clearly. But above all--because
otherwise I cannot provide you with the background--I should like
to explain that a little further to the Tribunal--above all, there
is considerable ignorance about certain peculiarities of the German
situation, in particular concerning the constitution. I believe I may
say without encountering any contradiction that in this courtroom
jurists are fighting for clarity among themselves which belonged
to various schools of legal thought. Above all, there is between
the European continental states and their constitutional and legal
thought on the one hand and the Anglo-Saxon legal thought, as far as I
understand it, a great difference which cannot be overestimated. On
the continent of Europe, in the course of four centuries, a development
has taken place by which law and morality in legislative thought are
separated sharply; and so as the question of morality arises, the
lawyer on the continent of Europe says as a lawyer, “That has nothing
to do with me. That may be regrettable, and I myself do think it is
regrettable, but after all, that is the historical reality.” How
far that development goes, I can show to the Tribunal by giving an
example which perhaps is the most important, and again that concerns
the opinion of Gerhard Anschuetz concerning article 102 of the
constitution[147] as to whether the courts in Germany concerning the
validity of the law passed by the Reichstag are entitled to doubt it
for ethical reasons. I quote--this is in the commentary of the 14th
edition, page 476--“If it cannot even be conceded that the judge is
entitled to examine the law as for its being constitutional or not,
so it can be conceded even less that he may refuse obedience to a law
which was passed constitutionally because according to his opinion
concerning certain standards which again according to his opinion are
above the legislator, that is to say, morality, ethics, natural law,
they contradict these points or because they cannot stand up to certain
evaluations.”
I had to read this out verbatim. Therefore, it was rather difficult for
the interpreter because of the position of the verbs.
The reason for that situation in Germany, which is a situation that
applies to the whole of Europe, is this--and I now have to broach a
subject, the effect of which did not affect England or the United
States. The state of the European continent came into existence from
the fragments of the _Corpus Christianum_ of western Europe. The
break of the medieval realm is the soil on which the modern sovereign
states grew. These states starting with Italy believe ever more
strongly in the idea that they are sufficient to themselves, that they
can live by their own efforts, that they are under no obligation to
the past or to the future. The state becomes a purpose to itself. That
has been emphasized again and again, and that development goes on from
Macchiavelli, the great Florentine; Jean Bodin, the great Frenchman;
and as far as Hegel, the great German. As a result, ethical evaluations
may be made by the legislator, parliament, or the monarch, but the
resolution passed by the monarch or parliament deprives those who are
governed by these laws of all right of objection.
May I draw the attention of the Tribunal to one event that occurred
under the Weimar constitution. During the first years of the republic
it became known among the public that Berlin was thinking of forbidding
any revalorization [or revaluation-- Aufwertung] by law.[148] The
judges of the Reich Supreme Court of Leipzig at that time formed their
own association, and that association of judges, in view of that rumor,
held a meeting and passed a resolution to the effect that if such a law
were to be promulgated, they would refuse to apply it. That happened
in 1924, and it was emphasized that such a law would run counter to
morality. There was a storm of indignation among the Reich government.
The Reich Minister of Justice protested using very sharp expressions,
and the Reich Supreme Court did not carry out its threats. However,
in 1927 the Reich Supreme Court in a decision published in volume 118
declared--“The legislator in the autocracy is not bound to any other
restrictions but those which he draws for himself from the constitution
or from other laws.”
Now, I ask to be permitted to speak about a second point which concerns
only Germany, at least to that extent. It is easy to forget that the
German people for 33 years have never had really normal conditions. If
one looks at that from the human point of view, it means that about
50 age-groups of German people--that is more than two-thirds--50
age-groups of people have never seen normal conditions; that is, all
the people who were born after 1914, and those who, before 1914, did
not have any conscious experiences. For all these people, life--and
that was the normal thing for them--was a continuous change from open
to latent crisis. One was always exposed to danger and always with
a longing for stable conditions. The consequence is that for most
Germans, order, which deserves that name, is something hard to imagine.
To the German people order has become to mean something transitory,
something unstable, something upon which one cannot depend, and
doubtless it did not contribute to the stabilization of legal thought
that, beginning with the time of the Weimar republic the machinery
of legislation was running incredibly fast. I would, indeed, desire
for the judges [of this Court] to see the maze of decrees and laws
published and showered upon the German people since 1919. Most of those
were laws or paragraphs of short existence. We had real inflation of
legislation, as far as I know, in history without example at any other
period. And that was not only so during the Weimar era, it became
worse indeed during the period of the Third Reich. Before Hitler came
[to power] he turned with strong criticism against that positive
manufacturing of laws. In his opinion, only the “sound sentiment of the
people” should find its inclination in laws. But when he was in power,
the machinery, if this was possible, then was in even higher gear.
I believe that I do not have to credit it to my own inefficiency but I
have to believe that no German jurist can say anything else of himself,
but, none of us were in a position to know all the headlines of all
the laws and decrees that have been passed. With things as they were,
one has to understand that a large portion of the German nation, many
jurists among them, became tired and apathetic toward authority, and
skeptical. And on the other hand it could not be avoided that many
impulsive individuals revolted, wanted to take action, wanted to do
something about it, wanted to come to a decision, to a clarification,
to a simplification, to find a way to see through all that.
In our era--at least one can say that for Europe--the political disease
of fanaticism and doctrinism has broken out; tolerance became more
and more rare; each single technical question was tainted with the
question of religious allegiance. Under these circumstances, one can
easily obtain a picture of the chaotic condition of legal thinking;
small wonder that a state, to see to it that laws once decreed have to
be carried out by the authorities, demanded _particular_ emphasis
because otherwise not even the minimum of order could be guaranteed
which was at most possible. Particularly because the entire situation,
the entire atmosphere was so unstable. The essence that “an order is an
order” had to become the last refuge of those actually in power.
And now, a last part of it. Inflicted against this background of all
that we find in the constitution which, on paper, perhaps structurally
is the most sympathetic, the most logical democratic constitution of
the world, with a tremendous, carefully thought-out system of checks
and balances, safety valves in order to assure that the individual
citizen would be the one to have its full advantage. But that
constitution was worked through elaborately, and I say openly, that my
determination to study constitutional law was in part based on that
constitution which enthused me as a young man; this constitution, at
the same time, was very complicated in its structure, its structural
power and in legislative procedure.
With the permission of the Tribunal I shall try to explain that life
itself demanded to have these matters simplified--rather less artistry
but more efficacy. With that I believe, in all brevity, to have said
something of that which is absolutely necessary to know if one wants to
understand the essence of the Weimar constitution and its development
which, long before Hitler, had led to a situation which does not permit
to recognize any longer the situation of 1919.
* * * * * * *
In German we call a law which was brought about by the legislative
authority, a law in the formal sense. And the basic thought for all,
which is to be found in all European constitutions, is this. If the
government wants to, let us say, increase taxation, then that means
it wants some acts of legislation which authorize the authorities,
or the various agencies, to interfere with property. The government,
therefore, wants a law in the material sense; therefore it must
have a law in the procedural sense or in the formal sense, through
legislation. That is what we call the principle of the necessity of
the law, the fact that a law is required. Where this is brought about,
we have a division of power. And if it were brought about--and it
has never actually been carried out--then this is the way it would
have to come about. The legislative body then would have to make all
substantive laws, but it would do nothing but just that.
Both these cases do not apply. Parliaments, time and again, are given
the privilege or the right to come to resolutions or decisions which
have different content, for example, decisions on budget. These
decisions on budget are not acts of legislation in the sense of setting
standards. In German constitutional law it is definitely prohibited
to include into the budgets acts of legislation or standards in that
sense. The Parliament has a part in the forming of the cabinet. That is
one thing. The other--and this is what we need--is the following. It
may happen that the government is authorized to enact legislation by
virtue of the constitution itself, or by virtue of later laws passed by
the parliament. In German one calls these acts of rule making [Akte der
Normsetzung] of the government, that is of the executive--which have a
legal maxim as content--legal decrees [Rechtsverordnungen]. “Legal” on
account of their content, and “decrees” on account of the method.
This institution, which we find in every European state, was the
starting-point for the further development and the paving of the way of
the orders by Hitler, because in the Weimar constitution there is a law
for the government to decree laws, the utilization, or I should say the
exploitation of, which led to the fact that since the middle of 1930
the normal legislative body in Germany was really the government. That
is the famous provision of article 48, paragraph 2. As a rule, legal
decrees on the basis of this article are called dictatorial decrees,
but also apart from that during the Weimar era, much authority was
received for the government to issue decrees. In countless laws the
Reichstag empowered the government, in order to carry out a law, or
in some cases in order to amend a law or repeal a law, to issue legal
decrees.
However, not only in the Reich do we find this institution or this
instrument of legal decrees, but also in the German states, the German
Laender. In the constitution one always finds a [provision concerning
the] right to issue emergency decrees (Notverordnungsrecht) and the
legislatures of the various states frequently authorize the [state]
government to issue decrees in regard to substantive law.
A law of the Reichstag of 13 October 1923, which is called Enabling
Law, “Ermaechtigungsgesetz”, signed by Reich President Ebert, conferred
upon the Reich government the power, among other things, to issue
decrees in regard to substantive law, even deviating from the legal
principles of the constitution of the Reich. This law is particularly
important. It was published in the first years of the Weimar
constitution under Reich President Ebert, and it cleared the way for a
development which the founders of this law to this day probably regret
deeply.
May I refer the Tribunal to the following:
Several months ago, in Munich, a book was published, “The History of
the Weimar Constitution.” The author is Professor Willibalt Apelt, now
at the University of Munich. We used to be together at the University
of Leipzig, and I also had the honor to lecture for him in addition to
my lectures when he became the Minister of Interior in Saxony; that is,
the Police Minister.
He was one of the most outspoken democrats we had in Germany. This
book throughout is a [settling of an] account [Abrechung] with Hitler.
It altogether lauds the Weimar constitution, and therefore it is
particularly important to note that Apelt considers this law the
beginning of all the evil in this development and states explicitly
that this law cleared the way to that other enabling law of 24 March
1933. * * * The date of the law is 13 October 1923. It appeared in
the Reichsgesetzblatt of 1923, volume I on page 943. Since the middle
of 1930 one did no more work with enabling law decrees, but one used
article 48, paragraph 2. Earlier already that had been applied. If I
am informed correctly under Ebert alone, 136 decrees of that kind were
passed, that is to say, until 1925 when Hindenburg became President.
At first a little less use was made of this means. It was reactivated
again when the economic crisis of 1929 was nearing Europe. Conditions
in Germany deteriorated from week to week, and under Bruening whole
bundles of emergency decrees, of dictatorial decrees, were passed. In
1932 we had progressed so far in that direction that the Reichstag was
practically excluded as a legislative body, and the Reich President,
together with the Reich government (the Reich cabinet because according
to article 50 they had to work together) was really the normal source
of legislation. From then on until Hitler’s acts of legislation it is
indeed only a short step, and if Hitler himself would not have set out
to give the whole matter a triumphant dictatorial aspect, if he had
been satisfied with an enabling act like that of 1923, if he had not
had laws enacted by the government but decrees, the entire enabling act
would not have caused so much rumpus as it did.
Q. Professor, may I ask you to explain briefly to the Tribunal who
Reich President Ebert was, because we have to assume that the name
alone does not give a plain indication. * * *
A. We had two Reich Presidents. The first, Friedrich Ebert, who came
from the social democratic party of Germany, not elected by the people
but by the national assembly, and then the second, von Hindenburg, who
was elected by the people.
Q. And my second and other request is that you quote to the Tribunal
article 48, paragraph 2 of the Weimar constitution.
A. Article 48, paragraph 2. Concerning the so-called dictatorial
powers of the president--and with the permission of the Tribunal, I
shall formulate these sentences linguistically in a way which make
them easily translatable--“The Reich President may take those measures
which are necessary to reestablish public security and order if, in the
area of the German Reich, public security and order are considerably
disturbed or endangered. If required, he may also intervene with the
aid of the armed forces. For that purpose he is authorized temporarily
to invalidate in whole or in part the basic laws which are laid down
in the articles 114, 115, 117, 118, 123, 124, 153.”[149] May I add,
these seven basic laws are the so-called “liberal principles,” [basic
liberties], the same which we find, for instance, in the Constitution
of the United States, the Bill of Rights.
Q. Professor, we are now concerned with an attempt to explain the
Hitler decree to the Tribunal. After all we have heard from you now,
the development which has led to it that the government governed by
decrees rather than by legislation, that development started already
as early as 1923, and according to the information we have from you
was again stipulated in 1930 at the time of a different government.
I think it will be necessary to explain to the Tribunal that this
development led up to the Hitler decree; went through various stages of
development, and I may ask you still to describe this to us, because in
the course of this case it has become necessary that this development
be shown asclearly as possible.
* * * * * * *
The cabinet assumed responsibility [for all orders and directives
issued by the Reich President] to the Reichstag by countersigning
them, and the Reichstag could react rather disagreeably; the cabinet,
if the Reich President and the Reichstag were of different opinions,
was forced to make a decision. If the cabinet took the opinion of the
Reichstag, then the Reich President either had to give in or change
the cabinet; if the cabinet went along with the President, then
nothing else was left than to risk the vote of lack of confidence; an
essential vote of the Reichstag could lead, therefore, to a struggle
of that kind, and in German practice the cabinet which went with the
president against the Reichstag was called a “fighting government”
[Kampfregierung]; not the other way around. In the long run it showed
that the Reich President, when the Chancellor went with him, was
stronger than the Reichstag. That also I may be permitted to describe
briefly. If the Reichstag did not agree with the president, was not
satisfied with the president’s decisions, it could not, properly
speaking, do anything. Even though the constitution in article 43[150]
reserved to the Reichstag the right to ask the people of the Reich
that they demand the resignation or the dismissal of the president.
That, in practice, never occurred, and for a very simple reason. If
the Reichstag would have come to a decision of that kind, and the
people would not have gone along, then that president would have been
automatically reelected for another 7 years, and also, the Reichstag
would have been dissolved, and that would mean suicide [for the
Reichstag]. However, the president is in a much better position; if
he is in agreement with the Chancellor, he can dissolve the Reichstag
himself. That is where the famous red folder comes in.[151] If,
therefore, the president and the cabinet are in agreement, and there is
a threat of censure on the part of the Reichstag, then the president
can turn over to the Reich Chancellor the order for dissolution [of the
Reichstag]. The Reich Chancellor is present in the session, and when
it comes to the last, he just shows that red folder and that settles
the entire matter. Now, the Tribunal will certainly understand why in
discussing article 48, paragraph 2, I did not even read paragraph
3,[152] because there it is expressed that the Reich President has to
notify the Reichstag of every dictatorial measure and if the Reichstag
wants it withdrawn, and the demands are made of the president, the
president has to repeal his measures. If he and the cabinet do not wish
to do that, they have the possibility of dissolving the Reichstag, and
that brings me back to what I pointed out before. Maybe one cannot
understand why the Reichstag permitted itself to be dispossessed, as
far as legislation is concerned. It would have had to be made entirely
different to be in a position to oppose due to the fact that the major
change could not depend upon them. The Reichstag in every demand of
repeal risked its own life.
* * * * * * *
Perhaps at this moment I can jump ahead into the Hitler era. When the
Hitler government had received the right to pass laws it no longer
needed the Reichstag. If one wanted to use the Reichstag at all as a
legislative body, one did so to save face. But, now the government did
no longer make any suggestions as was, in former times, the normal
procedure. The government was the legislator itself. But that way was
chosen; a way, which during the Weimar era played no part.
Under Hitler the Reichstag since November 1933, consisted only of
one faction. That is just as senseless as one party. This faction
introduced a bill with the name of Adolf Hitler and three others.
Frick, the faction chairman accomplished this, Goering acted surprised,
being the president, and then, the whole game went on as you know it.
That abnormal way, therefore, was chosen in order to stage the play.
Now I go back to the Weimar era. As to whether the bill was introduced
this way or that way, for the Reichstag, that was only raw material.
It could say, “We will not do anything.” It could say, “We will pass
it.” It could say, “We will change it.” If a bill is passed, it means
that the bill is accepted or amended; then the Reich President received
the law which was had been passed by the Reichstag for his signature.
Signing a law, that meant as to whether the law was passed in the
proper way, and as to whether the text which had been submitted to
the president was actually the text which was passed under the law by
the Reichstag. (It did, in effect, happen that other documents were
submitted to him than those passed by the Reichstag, of course, by
mistake. Next, the Reichsgesetzblatt had to publish it with a special
wrapper in the changed form.) And when that happened, then, the
president gave the order for promulgation. In Germany we usually call
it promulgation, too. So far so good.
So much so good. But, now, it could happen that the Reich council
or the Reich President with the consent of the government or the
government with the consent of the president or some of the members
of the Reichstag, itself, were dissatisfied with the law, and, in
that case, the constitution provided that those unsatisfied persons
or bodies could appeal to the people. That is very complicated, Your
Honors, and I do not think that we need it for our purpose here. You
will find it written down but I don’t think I need to elaborate on it
here.
If such an appeal would have been made to the nation--it never
happened, it got stuck in the beginning--then that had to be fought out
at the time between signature and promulgation. But the constitution
had provided for a special procedure, an act of absolute democracy
became possible--the people of the Reich, that is to say, at least
one-tenth of the whole electorate,--at that time, that was at least
four million voters--could join together and demand that a bill which
had to be drafted up to the very last [detail], was to be submitted
by the Reichstag, and, in that case, the Reichstag was not as free
toward the draft as in the other case. But it was under pressure of an
ultimatum. It was only left with the choice either to accept it as it
was or the government had to ask the nation. That was attempted a few
times but it was never carried out properly.
I should assume that those remarks were sufficient to show to the
Tribunal that on the one hand the Weimar constitution was very
democratic, with the intent to protect the people and its rights; but
that on the other hand the constitution was so complicated in the
structure of the bodies and in the legislative procedure, that one
need not wonder if an ever stronger movement urged for simplification.
Furthermore, the constitution in itself had something unclarified,
something provisional and that in severe respects and that always
happens if a dualism is created; for every dualism of power endeavors
at its own dissolution. * * * We had, furthermore, the small dualism
between Reich President and Reich Chancellor; and, I haven’t mentioned
that yet, there was the old grave German problem of dualism between
Reich and Laender; all these various problems of dualism were urging
for dissolution and they were in process of dissolution prior to
Hitler. Hitler then completed that development. May I explain that in a
few remarks?
First of all, the dualism between Reichstag and Reich President was
abolished. The Reich President is the victor. Under Hindenburg the
formation of the cabinet more and more came under the power of the
Reich President and that of the Reichstag decreased. The end of this
development was 30 January 1933. The Reichstag was no longer asked to
do any work. Purely formally, under article 53, the president appoints
the new government. Article 54 was no longer considered a serious
threat. The parliamentary system is dead and we have the first demoting
of the Reichstag. The second had already started in the meantime, as
I have shown. The Reichstag had already resigned more and more as a
legislative body; it is only the culmination of the development, what
we see in the law of 24 March 1933 [Enabling Act] and the aftermath,
the new reconstruction law [Neuaufbaugesetz] of 30 September 1934; the
division of powers is dead. The Reichstag in its original and foremost
function has been dethroned. What was its purpose now? In July 1933,
political parties were definitely prohibited. A genuine parliament
was no longer possible. The first Reichstag elected after this July
law, in November 1933, was the Reichstag of one faction only elected
by voters of one party only. It has been said that it was purely an
assembly of acclamation. The great dualism in the Reich ended thereby
and on the grave of the Reichstag there are three crosses. The small
dualism between Reich President and Reich Chancellor ended with the
death of Hindenburg and is expressed in the law of 1 August 1934,
concerning the head of State [Staatsoberhaupt-Gesetz]. The greatest and
most serious dualism between Reich and Laender in effect was eliminated
before that. Usually one says in the German constitutional science that
only the reorganization law of 30 January 1934 had turned the Laender
into Reich provinces but that is certainly not correct. Looking at the
facts themselves, that step was already taken by the Reich governor
law [Reichsstatthaltergesetz] of 7 April 1933. When one summarizes all
that and looks at those results together, the final phase is this--the
entire power of the State in the German Reich is combined in the hand
of that one man who quite arbitrarily can use that power to decide
individual cases or to set new norms. It depends only on him, from the
practical point of view of power, as to how long he refrained from
interfering in the field of judiciary. * * *
Q. Professor, that was the question about the development up to the
point when this one man, Hitler, held everything in his hand. I
would say the result of historical development. We are interested in
explaining to the Tribunal, if I may say so, the dogmatical position of
the Hitler decree as a legislator. Therefore, my question concerning
your statements up to now concerned the development of constitutional
law up to that historical point. But now, the Hitler decree and the act
of lawmaking became actually one and the same. What was the effect
of that on the legislative, on the executive, and on all forms of the
state life after that time?
A. Perhaps I may begin with the procedure of the Hitler decrees,
that is to say, with the exterior manifestations. I have shown that
in German constitutional law we had the difference between statute,
in the formal sense, and ordinance. The one was the act of the
legislature--the other of the executive. On account of the enabling
act and as a consequence of the first acts of the Hitler government,
the procedure of legislation became a dual one. We still had more or
less--for Sundays only, so to speak--the procedure of legislation
through the Reichstag. The normal course of legislation was the
statutes enacted by the Reich government, which should not have been
called that way. We also had, from the imperial days, and we kept it
up during the days of the president, the decree by the head of state,
especially distinguished in the way of ordinance, for instance the
organization act and we had the ordinance by the government. Hitler, by
and by--but it happened rather quickly--emancipated himself from those
regulations of the laws which were previously valid and concerning
the various forms of norms, he used them arbitrarily. As to whether a
statute passed by the Reichstag, as I described it, was brought in by
suggestion of the National Socialist Party with Hitler as the first
mover of the motion, was passed by way of acclamation, without debate;
or whether the law was decided on by the government--that happened very
quickly by way of circulation--or whether Hitler called it “Decree
by the Fuehrer and Reich Chancellor”--later called “Fuehrer Decree”
or ordinance, such as the famous ordinance on the Enforcement of the
Four-Year Plan--for the legal value that did not matter at all. In
all cases Hitler alone decided, whether he would take advice or not,
whether there was a cosignature or not, for genuine cosignature in the
constitutional meaning, of course, could not exist any more. There have
been many arguments as to what the cosignatures which weren’t always
affixed meant. People have tried very hard to find a meaning, but the
only thing that is really certain is that these cosignatures did no
longer have the meaning or significance of the proper countersignature.
There was nobody toward whom one could have assumed any responsibility
by countersigning. Therefore, all fixing of norm, signed by Hitler’s
name alone or together with other names, is merely an act of will of
that man--whether it calls itself a law or something else.
The only difficulty is represented by the so-called secret laws,
although I can’t quite see where the difficulties are when you look at
it properly; that a law which is kept secret before the people whom
it concerns cannot bind those people is obvious. That is not because
of some particular legal system but that is because of the very nature
of an order. Nobody can be given an order if he doesn’t know of the
order and if he is not meant to have knowledge of that order. But one
must not forget that if Hitler passed a secret law, that as an official
directive it was binding for those persons to whom it was made known.
Then it was not just a legal norm, but it was an official instruction.
As for the citizen, that amounted to the same in effect. If I may use
an expression from Germanic law, these various forms by which Hitler
announced his will were only different as far as the number of people
in his entourage were concerned.
Much more difficult than that question about the form is the question
about the restrictions on those contents to which Hitler was subject as
a legislator. According to the valid order, limitations in the matter
of the contents existed also for Hitler. Already last year, before the
International Military Tribunal, I stated clearly that naturally for
Hitler too, the limitations of ethics did apply. As to how he himself
thought about such matters, I don’t know. I never met him, and I would
not like to rely on hearsay; but that he knew that others believed him
bound by a moral restriction, that is quite evident from the fact that
again and again, be it in preambles to the law, be it by the rest of
the propaganda machinery, he formulated moral justifications. Whether
that was in accordance with his own real ideas, that question may be
left open.
But I have already told the Tribunal that these restrictions, as moral
restrictions which are no doubt for a great man the most difficult and
the most important restrictions, in the conception of the European
state on legal matters, are no legal restrictions. The absolute state
of the continent passed on that conception to its parliamentary
successor.
A little while ago, I had an occasion to show, by the example of
Anschuetz, that that remained so until the latest era, until the time
of the extreme democratic era of the Weimar republic. If one does
regret that or not does not matter here. I simply have to describe what
actually happened. If now, in the European meaning, one asks about
legal restrictions--and first of all one asks about restrictions of the
German law--one will have to say that restrictions under German law did
not exist for Hitler. He was _legibus solutus_ in the same meaning
in which Louis XIV claimed that for himself in France. Anybody who said
something different expresses a wish that does not describe the actual
legal facts.
On the other hand, certainly there were legal restrictions for
Hitler under international law. He, as the head of the State, was
the representative of the German Reich with foreign countries. After
the development of affairs, he had to represent the German Reich
without the restrictions which the Reich President still had. Hitler
alone concluded the treaties and terminated them. He alone concluded
alliances and could renounce them. He was bound by international law.
Therefore, he could commit acts violating international law. He could
issue orders violating international law to the Germans.
Now we are confronted with the most difficult problem: What were the
consequences of the violation of international law by an act or an
instruction by Hitler? The nonjurists will probably say that the order
did not exist. But every jurist knows everywhere in the world that
matters for the state, for every state, are not so simple. It is not
true that there is even one state in the world which would say, “Every
wrong act of state is not an act of state at all,” but every government
system had inherent in itself, in varying form, a second order so to
speak--a kind of self-purification system--a system concerned with
finding out whether faulty acts of state are void or valid or are only
partly valid. Every state commits faulty acts--acts of which everybody
knows that they are not in order and knows it at a certain time. Acts
which all the same are maintained, merely because during a legal
procedure the end has to come one day.
In the Germany of the Weimar republic, for example, this is what
happened. When the Reichstag--I just showed it by the example of
Anschuetz--had passed a bill pursuant to article 76, that is, with a
majority which could change the constitution, that law, if it had been
properly promulgated, was binding for every official agency, even, for
example, if it did not comply with an obligation of the Reich under
international law.
In this commentary--would you kindly wait a moment--it’s a long time
since I looked at it last, but I think I can remember where it is.
[Reading] Anschuetz says in his commentary on article 10, under figure
7, “International law too, places an obligation on the German judge
within the meaning of article 102 and according to article 4, but only
insofar as it is generally recognized; in particular, also recognized
by the German Reich and does not contradict the Reich laws. Whether
that is the case, that the judge has to examine but he does not have
to examine Reich laws, for the fact whether they are or are not in
accordance with international law, and even if they don’t pass this
examination, he cannot deny their application.” That means if the
Reichstag, let us say, with a majority that can change the constitution
had passed a law which was contradicting international law, that law
was binding for all German official agencies. The Reich had to act
as a sovereign State under the international law governing offenses
against international law.
I return to Hitler. What applied to the democratic set-up applied all
the more to the set-up under a “leader,” and everybody knows that who
knew about the conditions surrounding Hitler’s decisions. If Hitler
issued an order which was faulty from the legal point of view, that did
not give the German official agencies any reason to refuse obedience,
for in every state there has to be an authority beyond whom there is no
appeal.
In the case of Hitler something else, something special applies. He
who sees things differently and believes that the German official
agencies were not merely entitled but perhaps even under an obligation
to examine Hitler’s orders as to their legality not from the scientific
point of view, but merely with the practical purpose of possibly
refusing obedience, claims no more, no less than that Germany had no
dictatorship at all. Then it would not be comprehensible what was the
sense of a fight of the whole world against that regime.
I believe I have now answered your question. I would like to say one
more thing, so as to emphasize the gravity of the development. I had
the permission to show the Tribunal the structure of the acts of the
State. Naturally that structure can also be applied to Hitler’s acts,
but only one of those acts lost its meaning almost completely under
Hitler. If Your Honors will kindly recall chart 1 to your memories,
where on the left side we had the norms and then the authorization
norms, the norms which authorized interference, I had differentiated
between special and general relationship or subordination--pointing to
the soldier and the citizen.[153] Those differentiations under Hitler
gradually lose meaning. Hitler exerted and overburdened the strength
of the German people to such an extent that finally he no longer
saw before him citizens and smaller groups of persons under special
obligation among them, but for him the Germans, all Germans were always
on duty. A private sphere of activity no longer existed for him. With
him there is no meaning in the differentiation between substantive laws
and official instructions. It is all the same to him. The citizen is
dead, because all have become officials. That is the final point of a
development which, from a complicated state of affairs, was working
towards simplicity, and that is the gruesome result.
PRESIDING JUDGE BRAND: Dr. Schilf, would you pardon a question
directed to the witness at this time? Dr. Jahrreiss, if this question
interferes with the orderly course of your presentation, I suggest
that you ignore it. But you told us in your discussion of procedure
your views as to decrees signed by Hitler and one or more ministers.
Would you care to specify or to indicate to us a little the view you
have with reference to the justification of authority decrees not
signed by Hitler, but signed by one or more of the ministers? I think
we have seen a good many of those in the record. In other words,
decrees executed or signed only by various of the ministers, but not by
Hitler. Do you understand my question?
WITNESS JAHRREISS: Yes, thank you. I have spoken so far
only about orders by Hitler, but in German constitutional law dating
back to the days of the monarchy and the Weimar republic we have not
only norms fixed by the Reichstag or the head of the State, but also
many norms laid down by the government, in the narrower sense by the
minister. The ordinance [Verordnung], of which I spoke in the beginning
differentiating it from the statutes passed by legislators, is
normally the ordinance of a minister, and under German constitutional
law the following is valid. That was not changed in the Hitler era.
Administrative ordinances, that is to say, norms which are not legal
principles in the narrower meaning, are issued by every minister within
the framework of his own department, without any special basis. Other
ordinances, that is to say, legal ordinances, can only be issued--he
can issue them, but he can only issue them if he has been authorized to
do so by the constitution or by a legislative act. That was, in fact,
what I described at the beginning. And so, in the Weimar era, we had
many ministerial ordinances if the law empowered the minister to issue
them. If I may add this, the result of that differentiation was this,
if the courts had to apply an ordinance by a minister, or to be more
precise, when it was doubtful whether it was to be applied, then the
court had to examine whether the minister was empowered, was authorized
to issue it. If the court denied that question, the ordinance did not
exist. May I ask whether this was in answer to your question, Your
Honor?
PRESIDING JUDGE BRAND: I was interested especially in the
source of authority, of decrees signed by various ministers after
Hitler came into power. Would it be accurate to say that such decrees
received their validity because of a delegation of power to the
minister directly from Hitler?
WITNESS JAHRREISS: Yes, for legal ordinances. Hitler was the
legislator. He could issue the ordinances himself but he could also
delegate authority.
DR. SCHILF: Professor, I should like to follow up your words.
In the Hitler state, so to speak, all people were on duty. There
were no longer any citizens. You said the citizen was dead. May I ask
you, in our legal language we call an order by a phrase which is very
concise and which might explain it better to the Tribunal, that the law
also in the former meaning was a law that was the same as an order to
a servant. May I ask you to tell me whether that general instruction
to an official, a civil servant, to a servant was the same as the law
which had been solemnly promulgated in the Reichsgesetzblatt?
WITNESS JAHRREISS: If I have understood your question
properly, you want to know whether the obligation was the same?
Q. Yes.
A. Yes, no doubt. For those who were concerned, those to whom the order
was addressed, the order issued by Hitler, whether it was concerned
with an individual case or whether that was a legal norm or whether it
was an official instruction, was binding.
* * * * * * *
DR. SCHILF: Now I want to ask you, what, in principle, was the
relation between international law and the law of the individual state,
and I would like to ask you whether that relationship was changed under
the Hitler state?
WITNESS JAHRREISS: Counsel, I suppose I am right in assuming
that by that question you refer mainly to Article 4[154] of the Weimar
constitution?
Q. Yes, that is my intention.
A. Among the methods by which human beings are directed in social
intercourse, there is, as one of several, the order [Befehl]. That in
itself, unsympathetic as it appears to people everywhere as a method,
has the one characteristic that it is unavoidable. Consequently, there
is nowhere among human beings a sphere where there is no rule. On the
other hand, all mankind in effect today stands in permanent relation of
life with one another without, as a whole, being subject to one rule.
Both together result in the situation which again and again worries
people, which we call the situation referring to international law.
Only groups of mankind, smaller groups or larger groups, are under a
common rule. Therefore, if a continuous life, in spite of being divided
into various units of rule, is to be made secure, and that in a proper
manner, then there must be norms which hold together in an entity those
various units of rules.
Or to express it in a different way, the power of authority of the
various units must be brought in line in such a way that a community
life is possible. That means, however, the ruling authority of the
individual units must be restricted by the whole. The central point
of international law is therefore constituted by those norms which
lay down that limitation of the authority of the individual groups.
Therefore, I suggested, and I was the first person to demonstrate that
in science, that the law of an individual state, that is to say the
constitutional law, should never be described without also describing
the limitations under international law. If we were to achieve the
situation, if I may say so here, whereby everywhere in the world all
young jurists from the very beginning would be accustomed to see the
constitutional questions of their own country always in connection with
those of international law, then a great deal would have been done to
strengthen international law.
Summarizing, that means the individual state is placed under an
obligation by international law to arrange its own order by legislation
in such a manner that the authorities in their decisions work in such
a way as is demanded by international law. In [legal] science, that
is called--the state is under an obligation to organize its law in
accordance with international law. How can that be done?
There are several methods available. The legislator can, from case to
case in his own system, amend those provisions which need changing
so as to comply with international law. He does not need to mention
international law at all in doing so. That is the way states proceed
again and again. A different method is the one which is called the
method of transformation. That is, the legislator does not trouble to
bring into line the law of his country, word by word, and paragraph by
paragraph, with international law, but he tells his official agencies,
“Consider the norm of international law which in itself only binds me,
as if I had cast it into a law.”
That method, which in German we also call “Recasting” [Umgiessung], can
be applied specifically or generally. That is to say, the legislator,
as soon as he has to consider a new treaty under international law, can
recast that treaty or he gives general instructions for the application
of the international law which is valid in the particular case. Both
methods have been used among states.
Concerning this method of transformation, a difficult problem arises.
In all states which have laws of different rank, as in the German
Reich under the Weimar constitution--that is to say, either laws
which have the validity of the constitutional laws, or ordinary
laws--the legislator has to ask himself whether he intends to apply
the recast international law to the highest group or not. Under the
Weimar constitution, for example, it was indisputable that the recast
international law had merely the position of an ordinary law. There
might even be a state which would place the recast international
law above constitutional law. What do we need that for? Every
official agency in every state finds itself in the situation where
it is confronted with several laws of its own state which appear to
contradict one another, or in fact do contradict one another, which,
however, all claim validity. I need not tell you jurists that since
the days of Roman law everywhere norms have developed concerning the
elimination of such conditions; where state laws have varying status,
further norms of collision have been constituted. If a state would have
a general norm under which international law takes precedence over all
domestic law, that would be the greatest safeguard which is possible
at all, that the law of the country is handled in accordance with
international law. I do not know whether there is such a state. The
German Reich at any rate was not one of those states. I think with this
background I can now answer your question.
The relation between international law and the law of the Reich has
been regulated in the Weimar constitution in article 4 and article
45, paragraph 3.[155] There have been many arguments about article
4, at the time when the national [Constituent] assembly was sitting
[in 1919]. After many arguments and after sufficient attention had
been paid to article 45, paragraph 3, eventually the following legal
situation evolved. As far as the German Reich, by treaty, enters into
obligations under international law, in such spheres of life which are
subject to the legislative authority of the Reichstag, the President of
the Reich may not ratify the treaty for Germany before the Reichstag
has agreed by law. That is a transformation of a special nature, and
anticipated transformation, for if the treaty is concluded, because the
other partners ratify it also, then, at the moment the treaty becomes
valid, the special recasting has already been effected. For the rest,
all other international law, as far as it is generally recognized, but
also acknowledged by Germany, is generally speaking recast by article
4. Both ways of recasting gave international law the status of an
ordinary law of the Reich. Yesterday I had opportunity--concerning the
question as to the moral limits of rule--to point out that under the
Weimar constitution the courts were not authorized to examine a law
as for its validity under international law, and certainly not the
administrative authorities. Under Hitler that attitude was not changed.
The general method of transformation of article 4 was kept on, and the
specific one was needed even less frequently because the approval of
the Reichstag was no longer required for the conclusion of treaties.
Hitler could conclude every treaty under international law himself.
As soon as the treaty had been concluded, as soon as it had come into
force, it had already been recast, for Hitler’s ratification was, from
the domestic point of view, a Fuehrer Order.
Q. Professor, to supplement your explanations, may I ask you to read
out to the Tribunal article 4 and also article 45, paragraph 3, so that
the passages you mentioned become quite clear.
A. Article 4 says: “The generally recognized rules of international law
are valid as binding constituent parts of the law of the German Reich
law.” Article 45 says: “Alliances and treaties with foreign states
which refer to matters in which the Reich has legislative power require
the consent of the Reichstag.”
Q. Another supplementary question, Professor. You told us that treaties
under international law were concluded by Hitler alone. I would like to
ask you to explain to us how the question can be solved concerning the
person who was subject to Hitler’s order if there were contradictions?
A. I believe I understand your question to mean that among the laws or
ordinances which were valid in Germany at the time, there were some
which were contradictory to that which Hitler had decreed concerning
the treaty. That is not a particular problem. I have already pointed
out that that problem was merely the problem of collision, and if
Hitler, in contradiction to the treaty he had concluded later on,
issued an order in a general way or in a specific case contradicting
the former order, the later order, if the contents were the same,
was to apply and the old maxim applied--_lex posterior derogat
priori_--that was so concerning the relations of the laws under the
Weimar constitution, and it was the same under Hitler; but I think it
will be necessary for me to say a little more on that subject. It can
happen, and it does happen again and again, that a state knowingly,
in its legislation, gets itself involved in a contradiction with
international law. The last will of the state is decisive for the
official agencies. In that case, the nation until that collision has
been eliminated, lives under constitutional law which contradicts
international law. The settlement, which is bound to come, is brought
about by international law by the state being regarded as one which
has committed an offense under international law, and entails and
holds that responsibility to the provisions of international law, and
as quickly as possible that inconsistency has to be removed by later
legislation. As to whether further consequences arise, that we need
not discuss here. In the case of every state the following applies.
For the official agencies which have to apply the law to a certain
specific case, there are frequently, if one proceeds logically, several
laws--there are after all many situations in life which extend beyond
the frontiers from the human point of view or from the material point
of view.
One can bear in mind that instead of the state’s own law or side by
side with the law of that state, foreign law can be applied, or it may
be a case of church law possibly having to be applied. The question
as to the application of international law, therefore, belongs to a
wider scope of the great problem which is called the problem of the
norm concerning the application of law, or in other words in every
legal system there is, by the side of the system which regulates the
relations between human beings as such, a system which instructs the
authorities as to which law they are to apply in each case. I do not
know of any state nor do I know what law could be possible which does
not proceed in this way. The officials have to apply the law of the
state which is in force at the time except if the legislator admits or
orders another solution. Consequently, the provision of the status of
recast international law is, therefore, only one possibility of the
various possibilities of applying international law.
Q. Professor Jahrreiss, for the purpose of this trial we are interested
in establishing whether an official himself was confronted with the
question that international law deviated from the state law. If he
himself was confronted with that situation, I want to ask you in what
direction did he have the choice, or did he have any choice at all? Was
he restricted to one norm according to the general view or to the view
of the Reich constitution as far as it was still in force under the
Hitler regime? Was he bound by that?
A. First of all, I have to explain the underlying facts of your
question. Apparently you have in mind the case where a law or an
individual decision exists which, in the view of the official, is
inconsistent with international law.
Q. Inconsistent with international law, but which unilaterally is
the law of his country, and this official now is confronted with the
question to what norm is he to adhere?
A. I have already said that under the Weimar system which on that point
was not changed under the Hitler regime the official had to apply the
recast international law as an ordinary Reich law, and now he had to
solve that problem of collision which you have mentioned, in the same
way in which he solved the problem of collision between two ordinary
Reich laws which were contradicting each other. In effect if the law
under Hitler had been issued and afterwards the Reich assumed a new
obligation under international law which was recast, then that had to
be applied and not the former law, and vice versa. Have I answered your
question?
Q. Yes, but there was one more possibility for the imaginary
official. If the law of a country perhaps intentionally deviated from
international law, what norm did the official then have to apply?
A. I have already said that in the Weimar era already the moral
background or the background of international law of a legislative act
was removed from the scrutiny of the official and even removed from the
scrutiny of the judge and of the Reich Supreme Court. The background of
international law could not even be examined by the Staatsgerichtshof,
[supreme constitutional court]. The supreme constitutional court was
only allowed to examine whether it was constitutional, but it was not
allowed to examine it from the point of view of international law. To
express it differently, whether the law had been passed by the State in
such a way that it was inconsistent with international law on purpose
or not, that could not play any part at all; and that was the legal
state of affairs, regrettable as it may be.
Q. For the purpose of our trial we are particularly interested in the
norm of the Hague Convention of Land Warfare. May I ask you to explain
to the Tribunal with special reference to whether the principles of
transformation which you have explained apply to the Hague Convention
of Land Warfare as well?
A. Counsel, with that question you have approached a particularly
difficult problem. You know that the validity of the Hague Convention
of Land Warfare also concerning the clause of general participation
has very often been doubted. The Hague Convention of Land Warfare
with us was recast, and specifically--that cannot be doubted in my
view--most of what is said in the Hague Convention should be considered
as recast pursuant to article 4 of the constitution even if a specific
recasting did not occur. That follows from the history preceding the
Hague Convention of Land Warfare. When the parties to the treaty,
among them the German Reich, in 1907 signed the “Convention Concerning
Land Warfare,” for the most part they only laid down in law such
points which in any case were already international laws by customs
and, therefore, assured. It would not always be easy to say whether a
provision of the Hague Convention belongs to that group in part or not
or as a whole. Have I answered your question correctly?
Q. I would like you to refer to article 1 of the Hague Convention and
to read it to the Tribunal.
A. Yes. You mean article 1 of the Convention, or the appendix? Article
1 of the Convention you mean. Very often when one talks of the Hague
Convention of Land Warfare, one means the appendix. Article 1 is
a particularly concise example for the fact that the states were
conscious of the character of international law such as I described,
because it places the states under an obligation to give instructions
to their land armies which are in accordance with the enclosed Hague
Convention. As to the methods they employ, they are left open to the
various states. For example, the German Reich could without mentioning
the Hague Convention have passed a German law as to the behavior of the
German army in wartime. It was technically easier to give the order to
pay attention to the Hague Convention in the event of war. And thus,
the points laid down in the treaty as international law, and which
in the proper meaning do not affect the individual human being but
only bind the state as a whole, were reinterpreted by the legislative
authority to mean regulations applying to the conduct of the individual.
Q. Thank you, that answers the question.
* * * * * * *
Q. Professor, I had the opportunity to show you the book of Heinrich
Triepel, International Law and State Law. I would like to submit to you
pages 153 and 154 and ask you to read that part to the Tribunal and to
explain whether that is in accordance with your opinion.
A. I have in front of me the book of Heinrich Triepel, International
Law and State Law of 1899. This book--
Q. Excuse me, Professor. Is it the first edition? I have just been
asked if there are several editions.
A. No, there are not several. It is the first edition. This book, at
the time, was a sensational book for the science of international law
in the whole world. It was the first book which systematically treated
the questions which I am supposed to supply information about here
today. And what Heinrich Triepel laid down at that time basically has
been recognized in the entire science of international law and only
after the First World War a certain lack of security in theory, not
in practice, developed because the so-called “Vienna theory of law”
[Wiener Rechtsschule] founded by Hans Kelsen, who was my predecessor
in Cologne, and who is now teaching in the United States, with its
so-called “pure theory of law” or “norm logic” conceived the things
logically. This did not affect the practice of international law at
all, and thus the sentence is applicable which Triepel formulated on
page 153 of this book, “Judges and subjects are under the obligation
to apply the law of the state, even if contrary to international law,
and to follow it. It is not up to them, but up to the government to
take into consideration the differences and the divergencies with
international law which may arise out of this.”
DR. SCHILF: May it please the Tribunal, I have concluded my
questions to Professor Jahrreiss.
* * * * * * *
_CROSS-EXAMINATION_
* * * * * * *
MR. LAFOLLETTE: * * * I do want to ask you, Dr. Jahrreiss,
a hypothetical question. You may not agree with the hypothesis which
I hypothesize or the implications perhaps inherent in them, but just
for my own purpose and for orderly procedure I ask you to consider my
question and answer it on the basis of the facts which I hypothesize,
purely. Let us assume that I was subject to the complete power of an
individual we will call “A” to force me to obey his orders implicitly;
and, under those circumstances, I saw “A” procuring a strong rope,
strong enough to bind a man completely and securely. Secondly, that
I saw him preparing a strong wooden frame upon the ground, with iron
rings through which he could pass the rope; and, so placed, that
they could bind the legs and arms of a man securely. Third--a wooden
block so shaped that a man’s neck could be placed on it with his head
extended beyond it. And four, that I saw this man “A” sharpening an axe
large enough and strong enough to cut through the neck of a man. And
suppose at this same time I also saw, standing always in view, from one
to six men, each of whom I know that this man “A” has a violent hatred
for and has threatened to kill; and each of whom I know that this man
“A” has the power to capture if he chooses. Now then, let us assume
that this man “A” captures one or more of these men that he hates,
and that I know he hates; and binds this man with the rope that I saw
him prepare, upon the frame that I saw him build; and places his neck
on the block that I saw him prepare; and that then “A” hands me the
axe which I saw him sharpen and orders me to cut off the head of this
captured, bound man. Would you say that under those circumstances I
would be guilty or not guilty of killing the man whose head I severed
at the direct order of “A” who had the full power to order me to do so.
DR. JAHRREISS: I understand it this way--that guilty or not
guilty is to be considered as guilt under criminal laws.
Q. On the assumed facts, yes.
A. I just want to ask you a question. Do you mean it as a legal
question or as a question of morality?
Q. As a question of law.
A. Of law, yes. And according to what criminal law, and in what state?
Q. You can name the state; I don’t care.
A. Well, is that supposed to be a question in Utopia?
Q. Let’s put it in Germany.
A. In Germany?
Q. In Germany, yes, after 1933.
A. Yes, all right. Here then, we would be faced with terrible problems
with which all of us since last year have been torturing ourselves so
terribly, and I confess that in spite of having thought about it a
great deal, that I have not yet found my way out of the dilemma into
which we have been brought. Perhaps I can answer this hypothetical
question by saying, by stating first, the points of view which in
a conflicting manner make the answer more difficult. Perhaps first
of all I should say, so that this should be clear, Mr. Prosecutor,
how I, myself would behave.--I don’t know. No matter how horrible
the whole thing is, I don’t believe that I--well, the Charter of the
International Military Tribunal anticipates that an appeal to higher
orders should not be admissible. It is not my task to criticize those
regulations. However, perhaps I may be allowed to say that this
regulation, if it should really be valid law in any state whatsoever,
would have very dangerous consequences for order in general. One of
the four judges of the IMT, the French judge, Donnedieu De Vabres,
in a lecture which he gave this last April expressly stated that
this regulation brings with it many difficulties for the idea of the
discipline imposed by the state. I have the text of his lecture here.
It is a lecture which Professor Donnedieu De Vabres gave before the
Association des Etudes Internationales Criminologiques. May I quote a
short passage from it? May I read it in French?
THE INTERPRETER: Yes, you may.
WITNESS JAHRREISS: “Since the statute was interpreted this way
under the rules imposed by the IMT, it has in a sense of individualism
gone beyond regulations of international law and domestic law, this
regulation is open to the objection that it will endanger the necessary
discipline for the preservation of the state. Such a regulation can
be applied in the future only with prudence and circumspection.” I
am quoting this here only in order to demonstrate that if any rules
exist at all, a certain harshness is absolutely necessary, unavoidably
necessary. I always told my young students who started out on a study
of law that they would have to devote themselves to perhaps the most
bitter fact in life of man, and that is the rule, because by nature man
hates the rulership, at least if he is subjected to it, but if this
is the case every state basically has to require that its laws are
executed, even if the person concerned, for moral or religious reasons,
or other reasons, is of a different opinion. On the other hand, Mr.
LaFollette, every state knows that there is some limitation somewhere.
For example, the German Reich had a military penal law. In it there was
the quoted article 47. In the jurisdiction of the Reich court, however,
this paragraph was applied more and more in a restricting sense because
discipline had to be above all.
Now, Mr. Prosecutor, before the IMT, I, in the expert opinion which I
gave, which you were kind enough to quote here, stated expressly and
emphatically, I believe, what the limit of humaneness or humanity is,
but at the same time I pointed out that this limit is frequently not
sharply drawn; and I believe, and this comes closer to your question,
that perhaps after all the problem with which we are concerned here
cannot quite be done justice to, if a case is described quite as
drastic as you just said.
Last year during the first 4 months of the trial I experienced it, and
those were the most difficult times of my entire life. I experienced
and saw what terrible things happened under Hitler’s regime, and I have
no way to express my horror and to describe this sufficiently in any
language, but I believe that you will agree with me if I say that those
are occurrences which are outside of legal discussion entirely, for,
Mr. Prosecutor, even about injustice one can, if one is exact, speak
with legal reasons only in cases where--excuse me--the injustice is
within normal limits.
I myself was a criminal judge. One single murder frequently, in the
court of assize, occupied our time for 2 to 3 weeks, and it was a
terrible thing. Two murders by one person--that was horrifying. If
someone had eight to ten murders on his conscience, then he was
described as a mass murderer in the press of Europe, and people asked
themselves whether this was something that could be handled by means of
the penal code at all.
When, last year, in the courtroom of the big trial I listened to
the witness, Hoess, of Auschwitz, when he answered the question of
the prosecutor as to how many people he had killed, if I remember
correctly, he answered he didn’t remember exactly whether two and a
half or three million. At that time it was quite obvious to me that
neither positively nor negatively this had anything to do anymore with
legal considerations because, Mr. Prosecutor, no matter what a state
regulates concerning the question of review of a law the state has to
think of normal conditions. These occurrences and matters cannot be
measured by any order of the world at all. Therefore, I believe that
these things that happened in Germany behind a complicated system of
secrecy, a system of mutual delimitation, and if then one adds the
pressure of conscience of millions of people who felt themselves hemmed
in between patriotism and hatred of the system, then the question which
you put to me attains a very bitter human weight, and I can only say I
don’t know any way out.
* * * * * * *
PRESIDING JUDGE BRAND: In order to better understand your
views which you have ably expressed, I would like to ask you a few
questions. I understand your view to be that judges were obliged
to obey the law of their State of Germany even though in doing so
they violated a principle of international law. That is a fair brief
statement, is it not, of the matter?
WITNESS JAHRREISS: Yes. During the Weimar republic this was
already uncontestedly applicable, and with the permission of the
Tribunal, I read the commentary of Anschuetz to article 102.
Q. And you would apply the same principle after 1933, would you not?
A. After 1933? There was much less the question whether this was
different than before.
Q. What court or tribunal ordinarily enforced the rule that judges must
obey the law of their State under such circumstances? I assume the
answer is obvious.
A. Excuse me. I didn’t understand your question, sir.
Q. What tribunal ordinarily enforced against the judges or upon the
judges this obligation to obey the law of the State even though they in
doing so, violated international law?
A. I never heard that a court violated this principle so that there
was no need to force the judges to conform to it. Mr. President, I
never heard that a German court did not apply a Reich law because in
the opinion of the court it was contrary to international law. I never
heard of such a case. You see, it was entirely uncontested. The court,
just in such a case, couldn’t do anything but through official channels
call the attention of the government to this contradiction so that the
government, in accordance with its obligation under international law,
would see to it that the laws were changed. Let us assume the case that
the Reich Supreme Court, for example, in deciding a case had come to
the conclusion that a German Reich law was contrary to an obligation
of the Reich under international law. Then the Reich Supreme Court was
not able to say--the indictment is refused because the Reich law which
supports the indictment is contrary to international law. The Reich
Supreme Court could do nothing but either to postpone the trial and to
report to the government so that perhaps changes would be made in time,
but it was not even obliged to do that. It was obliged only if it did
make a decision to decide in accordance with national law if it was
contrary to the international law. That was the legal situation during
the Weimar republic.
Q. That answers my question. * * * The Reich Supreme Court would in
proper cases lay down the rule that the lower court judge should
enforce the German law even though it violated some principle of
international law for which Germany as a state might be diplomatically
held responsible, is that true?
A. No, that is not quite correct. I said that the Reich Supreme Court,
just the same as the other German courts, in regard to this question,
did not have any doubts at all, and therefore, it did not make any
rules with which the lower courts had to comply. That was not necessary
at all.
Q. Then the lower courts themselves recognized this rule of which
you speak that they must enforce the law of the State even though it
violates a principle of international law?
A. Yes, and they only had to look at the Anschuetz commentary; that
said so expressly.
Q. Well, at least prior to 1918, was there any tribunal other than the
court of the state which could punish the public officer or a judge,
for making a decision which was contrary to international law, if it
was made in compliance with the law of the state?
A. No.
Q. If the principle enunciated among other bodies by the first
tribunal, the IMT Tribunal, namely, the principle of the penal
responsibility of an individual officer for violations of international
law, should be applied, then you have, do you not, a modification of
your principle which you have stated with reference to the necessity
that judges must obey the law of the state. In other words, if that
principle of penal responsibility of the individual has become a part
of international law, then the anomalous situation would arise where
the officer, perhaps the judge, may have been required by his state
law to make a decision, but may, nevertheless, be responsible if any
tribunal has jurisdiction to try him, for a decision contrary to
international law. Isn’t that true?
A. If I understood your question correctly, Your Honor, the general
validity of the principles of the charter as international law
could, in regard to judges of those states which require that their
officials apply the law of the state as the final will, bring about
tragic conflicts of conscience, for which, in my opinion, there is no
indubitable legal solution at all. But, Mr. President, I do not know
whether I quite understand your question correctly.
Q. I do not think I will attempt to repeat it further. I understood
your position. It is true, is it not, that there was no tribunal in
Germany, perhaps anywhere else, which had statutory jurisdiction to
apply international law in a penal proceeding against a public officer
of the state who had complied with the state law?
A. Yes, that is correct.
Q. Then, if there were a tribunal that had jurisdiction to apply that
law, might it not perhaps, arrive at a different decision, legally,
from the decision which this court of the state itself, would arrive
at; might not an international tribunal, having jurisdiction to pass
upon the question, arrive at a different answer as to criminality of
an individual officer who had violated international law, but had not
violated the law of the state?
A. Yes, that would be so, but, Mr. President, if I may say so, that
is the very thing which I call the tragic situation of the official
concerned.
* * * * * * *
E. General Development of the Administration of
Justice under Hitler
EXTRACTS FROM THE TESTIMONY OF
DEFENDANT SCHLEGELBERGER[156]
DR. KUBUSCHOK (counsel for defendant Schlegelberger): Witness,
what is your career, your professional career in particular?
DEFENDANT SCHLEGELBERGER: I was born in 1875. After I had
finished my legal studies and had passed my doctor’s examination, I
became judge in the first and second instance. In 1904 I became judge
of the Lyck District Court in East Prussia. In 1909 I became assistant
at the Prussian Court of Appeals, Kammergericht. In 1914 I became
Kammergerichtsrat. The Kammergericht is the Court of Appeals of Berlin,
the highest court in Prussia.
At the Kammergericht, I worked in several senates: in the civil senate
which dealt with the ordinary cases of civil law; in the commercial
senate; in the patent senate, and in the senate for voluntary
jurisdiction. During that period I wrote my first scientific works in
that field which dealt with the experiences I have gained in practice.
In 1918, that is to say at the end of the First World War, I became
assistant at the then Reich Justice Office which later on became the
Reich Ministry of Justice. That agency had very little to do with
administrative tasks. At that time, it only dealt with one court. It
was the highest court, in fact the Reich Supreme Court in Leipzig.
Apart from that, the Reich Justice Office only dealt with legislative
tasks.
As an assistant, I was put in charge of legislative preparatory work
in the field of commercial and economic law, and I continued to do
that work when after a few months I became Geheimer Regierungsrat
and Vortragsrat at the Reich Justice Office. When in 1927 I became
ministerial director, I still continued to deal with the same tasks.
In 1931, the only Under Secretary of the Reich Justice Office, Dr.
Joel, an old gentleman--not to be confused with the defendant Joel--was
appointed minister, and I took his position as Under Secretary. I
retained that position when in 1932 the Bruening cabinet was replaced
by the Papen cabinet, and when Guertner, who had previously been
Minister of Justice of Bavaria became Reich Minister of Justice. Reich
Minister Joel, as well as Reich Minister Guertner at that time dealt
with penal matters themselves. I merely dealt with matters of civil law.
Only when in 1934 the Prussian Ministry of Justice was merged with the
Reich Ministry of Justice, and now a vast number of administrative
tasks were transferred to the Reich Ministry of Justice, then a new
Under Secretary position was created, and that for penal matters.
The Under Secretary of the former Prussian Ministry, Under Secretary
Freisler, obtained that post. That division of tasks in civil and penal
matters remained in force when on 27 January 1941 quite suddenly Reich
Minister of Justice Guertner died, and I, as the most senior Under
Secretary, was placed in charge of the conduct of affairs. I retained
my civil cases and Freisler dealt with penal matters. I was placed in
charge of the conduct of affairs of the ministry as the senior Under
Secretary. I was never appointed Deputy Minister of Justice, and I
never had myself called so, because that was, of course, impossible. I
only was in charge of the conduct of affairs.
This picture, that is to say, that I merely acted as a representative,
but that I actually dealt with the same work which I had dealt with
before, that became also outwardly apparent. On purpose, I never worked
in the Minister’s office; I never moved into the Minister’s home; and
I drew the salary of an Under Secretary, not that of a Minister. On 20
August 1942, at my own request, I resigned.
Q. You have described your work as Under Secretary, and you have said
that you worked largely in the sphere of civil law. Which were the most
important tasks with which you dealt?
* * * * * * *
A. In accordance with the particular interest which I had always
had in economic matters, and in accordance with the work I had
done previously, I was allotted the task of cooperating during two
particularly fateful years of the German Reich in the maintenance of
support of the economic life of the country. It was the stabilization
and maintenance of currency: that was in 1923 because of, and until
the end of, the inflation, and later on in 1933 on the occasion of
the economic collapse. The inflation period was followed by the
establishment of the Rentenmark currency, a new currency which replaced
the paper mark. The inflation was also followed by the ordinance at
which I worked, under which businessmen had to draw up a balance
in gold marks, and it was also followed by the tremendous task of
remonetization legislation. The collapse of the banks necessitated
many discussions and consultations, and ordinances as for instance
concerning rates of interest. Later, I worked on the new law concerning
drafts and checks, and I may quote as my special work the two big
economic laws promulgated in 1937, the law on shares and the law on
patents. When in 1942 I resigned from my office, a new law on companies
with limited liability was just about to be issued. At that time the
general reform of civil law had been started, not immediately by way of
a new codification, but by individual laws. When I left my office, the
marriage law and the testament law were completed.
Q. Apart from your professional work as a judge, and later on as
an official in the Ministry, did you ever engage in any scientific
research work?
A. I can wholeheartedly affirm that question. Immediately after I took
my state examination, I started on my first big project, and the first
book of mine, which appeared in 1904, was a treatise on the law of
retention; it was a work of historical nature. At that time I intended
to take on a university career, but nothing came of that, because my
home university, Koenigsberg, did not create a new chair for commercial
and economic law. But I could not give up my literary work, and ever
since then that has occupied me consistently side by side with my
official work. The special fields with which I dealt were economic
law and voluntary jurisdiction, that is to say the law concerning the
procedure in matters concerning family, hereditary, commercial law
and document regulations. In 1923 I became Honorary Professor at the
University of Berlin. Naturally, I followed that call while retaining
my official position, and I held lectures at the University of Berlin
until the outbreak of the war. In 1925 the University of Koenigsberg
conferred upon me an honorary doctor’s degree of political science.
Q. Did you also deal with foreign law?
A. Yes, foreign law, too, has occupied me intensively for a long
time. Perhaps I may first mention one of my latest works, a large
comparative encyclopedia, the “Manual of Comparative Civil and
Commercial Law.” That book summarizes reports on civil and commercial
law of all countries, written mostly by national experts, and I may
say the law of the United States is dealt with by Professor Atkinson
of Kansas University. This work which necessitated a tremendous amount
of correspondence, brought me in touch with eminent jurists all
over the world. I have deepened those contacts since 1929, because
I went abroad to hold lectures, and those trips were above all to
give me an opportunity to observe the effect of the law, at least
in some countries, actually on the spot. I did succeed in doing so
in Argentina; in Chile, where I dealt especially with banking laws,
I wrote an essay on that subject; and in Brazil where I became an
honorary member of the Brazilian Lawyers’ Association. I held lectures
in Budapest, Madrid, Warsaw, Stockholm, Copenhagen. I should like to
add that I am coeditor of the periodical “Foreign and International
Private Law”, a publication of the Kaiser-Wilhelm Association; and,
also coeditor of a publication on Scandinavian law.[157]
* * * * * * *
Q. Witness, were you active in party politics?
A. No, I never joined any party; I always stayed away from politics.
My life was devoted to the practical administration of justice, and to
legal research. If looking back now, I should say which one of parties
of the German people I fitted into, I would call myself as belonging
to the right one of the progressive, conservative direction which was
promoted by the German People’s Party, [Deutsche Volkspartei] and which
was also represented by the German Nationalist Party [Deutsch-Nationale
Volkspartei].
Q. What was your attitude towards the NSDAP and national socialism?
A. In 1933 I was approached on the subject of joining the NSDAP; I
refused. My reason was, first the fact that I could not subscribe to
the program of the NSDAP. Furthermore, another reason was my view
that Under Secretary of justice should remain neutral even on the
surface and, therefore, must not be obliged to any parties. I was
never a National Socialist. It is obvious that a party program, in its
manifold aspects, has many a point which one can adopt; for example,
the program’s aim of bridging class differences, that is to say, the
creation of a true national community; that point I welcomed heartily,
but, concerning the program of the NSDAP as a whole above all, the way
in which it was to be put into effect, that was far removed from my own
ideas. My own conservative attitude as a human being and as a jurist
accounted for that. It came as a great surprise to me when, on 30
January 1938, the Fuehrer’s Chancellery informed me in a letter, signed
by Bouhler, that Hitler had ordered that I was to join and be accepted
by the NSDAP. I said that that came as a great surprise to me. I
myself, like other Under Secretaries who had also come from the middle
classes, had never heard of that order, and it was impossible to refuse
because that would not merely have meant I would have given battle not
only to the Party, but the State itself. But I never departed from
that view. The membership which was ordered against my will and forced
upon me, I never made use of. I never attended a Party conference or
meeting. Naturally, I did not hold any office in the Party either.
Perhaps the fact that I never changed my attitude is also demonstrated
by the fact that neither my wife nor my sons ever belonged to the
Party. My social contacts, too, as far as they were not conditioned
by official affairs, moved almost exclusively within the circles of
non-Party members.
Q. The Hitler order by which Schlegelberger’s membership in the Party
was decreed will be submitted by me as Schlegelberger Document 34,
Schlegelberger Exhibit 92,[158] as soon as the document books shall
have been completed.
Witness, what effect did that attitude of yours have on your official
position?
A. I always saw to it that Party members and Party functionaries were
treated just like every other citizen. That played a part particularly
in personnel matters. I only appointed that person to an office who, in
my view, was properly qualified; and I refused to reward Party stars by
appointing them to an office.
On the other hand, the attitude of the Party toward the Ministry and
myself--and I shall have to come back to that later on--made great
difficulties and brought about many inner conflicts.
At this moment I should like to point out the case to which the
prosecution referred concerning notaries and their hostile attitude
to the Party. They demonstrated it so obviously that when I came to
hear of it in my official capacity I could not form a proper opinion
on it. If I had tried to suppress those cases it would have been
unavoidable that the Party would interfere, which definitely would have
claimed that the notaries had violated their duty of allegiance toward
the State and the head of the State. Perhaps the Party would have
welcomed it, because such opposition would have been a welcome cause to
discredit the administration of justice and to jeopardize my personnel
policy, on which depended the fate of many officials.
DR. KUBUSCHOK: The witness has referred to the case of the
notaries which, under Document NG-901, Prosecution Exhibit 436,[159]
was submitted by the prosecution.
PRESIDING JUDGE BRAND: What was the exhibit number?
DR. KUBUSCHOK: Exhibit 436.
The prosecution refers to your lecture held at Rostock University in
1936.[160] That lecture is compared as to its aim with a speech by
Reich Jurist Leader Frank, and the prosecution sees in it an avowal of
national socialism. Please give us some explanations about that speech.
DEFENDANT SCHLEGELBERGER: Counsel, you have pointed out that
that speech was made in 1936. Before I discuss the details about that
speech I should like to say a few words as to how, at that time, one
was able at all to discuss political questions in public. It wasn’t
that way that, when National Socialist quarters laid down program
points, one was allowed to make a frontal attack. I ignore altogether
the point of personal danger that might have arisen for an opponent. I
would not have fought shy of that danger, because a person who held the
office which I held was in daily danger. However, such a frontal attack
would have resulted in the opposite of what I wanted to achieve, that
is an increase of the opposition against reasonableness.
One had to look for opportunities which one could use, and for example,
the locality had something to do with that. I chose the university
for the place of my speech, and that had a decisive influence on my
audience. I had to see to it that the National Socialist ideas which I
wished to attack were beaten with their own weapons.
The actual reason for my speech was the fact that Freisler again
and again, before the public, pointed out that the Party program
was enforceable like law and was at least the framework of the law.
Therefore, one was obliged to carry out that program immediately and
completely.
I do not think I need to enter into any details here as to what it
would have meant if that doctrine had been recognized. In the practice
of the judges it would have meant separation from all legal provisions;
the Party program could have been applied at random everywhere. It
would, so to speak, have been the roof law under the protection of
which, according to the wishes of those extreme National Socialists,
legal life would have developed.
It was my aim to point out that such a construction would not be
necessary at all, that the existing laws would also do justice to the
fact that Germany was now a state under National Socialist government.
I must point out that the law adapts itself automatically to changed
conditions of life and ideologies, and from that the standard and the
speed of legal changes are decided.
I intended to put in the place of the revolutionary changes of law,
advocated by Freisler, an evolutionary development of law. I based
myself on the principle of the interior change of the legal system,
a principle which, for the first time, I propounded already in 1929
in one of my works where I also elucidated that principle. That was
at a time when one could really not say that I might have based my
arguments on the National Socialist thought. The compromise laws,
which had already been promulgated, I mentioned intentionally without
evaluating them. That was how I had argued against that thesis, and I
believe had refuted it. I also used the opportunity to give my views
concerning other important topical questions as well. I turned against
the interference with the carrying out of sentences which I considered
inadmissible. Due to previous incidents, I warned the judges against
currying favor with high Party officers. I appealed to the pride of the
judges and the consciousness of their independence. I also found reason
to turn against it that some jurists in an absolutely inconsiderate
manner, placed their own egotistic endeavors in the foreground, and
did not show any understanding whatsoever for the sound idea of a true
people’s community.
Generally, I used a tactic which I had employed repeatedly: I committed
the high Party leaders to adhere to many of their good words which
they had probably spoken without reflection. I reminded them that
Hitler during his first speech before the Reichstag had declared the
independence of the judges as necessary. I pointed out that Frank[161]
had mentioned the internal value of justice; and, that Goering, in
public, had spoken against interference with the administration of
justice.
Q. What was your relationship with Hitler?
A. I believe that one must distinguish between the personal and the
material evaluation, and at the same time one must connect the two. I
believe that Hitler, concerning my own person, had a certain measure
of respect. I believe he saw in me the experienced civil servant, who
was without ambitions, and who devoted himself to work and research.
Concerning my sphere of work, civil law, he had not the slightest
interest in it. The fact that I was unpolitical, aroused a certain
amount of distrust in him; that, I suppose, explains the fact that in
contrast to civil servants of the same rank, I was never offered an
honorary position either in the SS or the SA. That I, in contrast to
other high civil servants of the same rank, was not awarded the Golden
Party Badge; and that he restricted my connection with the Party to
the absolute minimum, again explains in particular, I believe, the
positively brutal attack on me in the well-known Reichstag speech of
26 April 1942. The fact that I was placed in charge of affairs after
the death of Guertner certainly was not a demonstration of confidence.
This is how I would like to put it: It was just a makeshift solution.
At that time Hitler could not yet make up his mind to appoint a new
Minister of Justice. What played a certain part, perhaps, was that
the chief candidate for the office, Frank, was at that time Governor
General of the Government General and was not available. Thus, there
was no way out, but to let the Ministry put the Under Secretary, who
had seniority in the office, in charge of the Ministry. Hitler’s
distrust, as far as I was concerned, was altogether justified from
an objective point of view. I may say, and I wish to place special
emphasis on this, that I was never fooled or influenced by Hitler’s
demoniacal qualities, and I saved my own conscience, as far as he was
concerned. For myself, Hitler was the declared opponent, in fact,
the person who held the administration of justice in contempt. That
conviction naturally placed me in a clear position. As far as it did
not jeopardize my goal, I upheld my different opinion quite openly
toward Hitler. That was already the state of affairs at the time of
Guertner. I may say that all my life, as long as I held office, I was
out to fight for justice and against arbitrariness. In the avowal
of justice there was no difference between Guertner and myself.
Guertner was the recognized protector of justice, but he was not
a fighter. If in the development, which was slow to begin with and
later became faster, he gave up his opposition in some respects, that
certainly is not due to a lack of the honest will to uphold justice.
Frequently he came to me for advice and assistance. But that time was
overshadowed by a continuous struggle with the Reich Jurists’ Leader
[Reichsjustizfuehrer] Frank. In continuous attacks, Frank tried from
his position as Reich legal office leader to achieve his final goal
which was to get the office of Minister of Justice and then to change
the Ministry and make it into a National Socialist Ministry. That
struggle can only be understood if one knew who Frank was. Frank was
the legal adviser and in difficult times the defense counsel of Hitler,
and, therefore, he was particularly close to him. Before 1933 even, he
had been the leader and propagandist of National Socialist legal ideas.
If one bears that in mind, then one sees already on the one hand, the
Ministry with its expert officials, the official activities; on the
other hand, the combination of National Socialist ideas on law with the
aim of overrunning the Ministry. Frank recognized Guertner’s qualities;
therefore, he tried by the tactics of continuously wearing him down, to
achieve his aim. If one knows National Socialist methods, one knows how
stubborn and tenacious such a battle was in the methods with which it
was waged, and that struggle had reached its climax when Guertner died,
and I took over the conduct of affairs.
Q. What was the situation at that time?
A. One gets a true idea of that situation if one forms a picture
in one’s mind of those three groups or parties which were fighting
against the administration of justice with the aim of conquering the
administration of justice in order to destroy it. I call these fighting
groups by the names of their leaders, Himmler, Bormann, Goebbels; and,
in so doing I would like to emphasize that during the whole time I only
talked once to each of those three men.
Himmler proceeded by different roads; the undermining of confidence
in the legal administration of justice and the conquering of its
competence. Attacks were being made continuously on the administration
of justice in the periodical of the SS which had already been mentioned
in this trial, _Das Schwarze Korps_ [The Black Corps]. They were
not content with criticizing sentences, but proceeded to defame in
public the judges who had passed the sentences. Himmler collected
material by sending secret observers to the court sessions. The
officials of the Ministry were watched and spied upon. Anonymous secret
reports, in which the Ministry was attacked, were sent out. Persons who
had been acquitted by court sentences were taken into police custody.
Others, who had been sentenced to a term in prison, were seized by the
police, and as the administration of justice heard later, many of those
persons were killed by shooting. All these things were intended and
designed to undermine the confidence in the administration of justice.
The administration of justice was to be discredited in public again and
again as a backward and outmoded institution both as regards personnel
and the subject matter. Himmler proceeded, I should like to say,
with cynical frankness, on the basis of this propaganda. He deprived
the Ministry of Justice of many fields of competence, and claimed
for himself even many more fields of competence from the Ministry of
Justice. He invoked the power of his position under Hitler and demanded
that the competence for penal cases concerning Poles and Jews should
be transferred to the police. His attempts to conquer the public
prosecutor’s offices for the police continued until the end. It is
obvious that that aim, which was placed higher and higher, by necessity
would lead to the thought of whether one would not have to show that by
new and more stringent measures one was in a position to overcome the
criticism which Himmler used as a pretense, and thereby take the wind
out of his sails.
* * * * * * *
Q. What part did Bormann play in that struggle against the
administration of justice?
A. Bormann’s work extended, above all, to personnel policy. Under
the existing provisions, no ministry could appoint an official or
promote him against the opposition of the Party Chancellery. The Reich
Ministry of Justice always made its selection entirely on the basis
of professional qualifications. Bormann, on the other hand, attached
importance exclusively to the political opinion and the merits for
the Party. If he objected to a suggestion made by the Ministry of
Justice, and it was not possible to overcome the opposition, there was
nothing else to be done at first, but to wait for a better situation
perhaps, and leave the position unfilled. I experienced it myself that
the position of a president of a district court of appeal remained
vacant for that reason for more than a year. But it is obvious that the
possibilities of such action had a certain limit. It was inadvisable
to leave an unlimited number of positions vacant. And sometimes one
was forced to appoint to the administration of justice personnel of
only moderate qualifications, whereas persons who were better qualified
were left out. Bormann knew very well how to promote Hitler’s antipathy
for the administration of justice on the one hand, and on the other
hand how to exploit the naturally weak and unpolitical position of
the Ministry under Hitler. Hitler continuously received newspaper
clippings about court proceedings and sentences. Usually, the facts
were distorted, or the reports, in any case, were always inadequate.
Hitler was always approached on these subjects only at a moment when
for some other reason he was disgruntled and his attention had to be
distracted. Those reasons very often resulted from the war situation.
For Bormann, the administration of justice was the lightning conductor.
The Gauleiters cooperated with him. They collected the material with
great glee by getting newspaper clippings from provincial newspapers.
The Gauleiter of Munich [Gau Munich-Upper Bavaria], Wagner, excelled.
Every opportunity was used to discredit the administration of justice
before Hitler with entirely inadequate documentation. The key to that
situation lies in a statement which Goering made to me at the time the
administration of justice became centralized.[162] I will revert to
that later. Therefore, our main endeavor had to be to inform Hitler at
the earliest possible moment, and, of course, completely and honestly.
I shall have an opportunity to explain how those attempts were
constantly sabotaged by Bormann.
I should like to say now that our attempt was to prevent Hitler from
changing sentences after they had been passed by suggesting that the
presidents of the district court of appeal should confirm the sentences
whereby merely a technical, nonpolitical review would have been carried
out. That attempt was intentionally brought to naught by Bormann for
he realized that thereby it would have been impossible for Hitler to
reopen, on the initiative of Party, trials which had been concluded.
Q. The possibility which the witness mentioned concerning the
possibility of Bormann’s interference with every appointment of an
official results from the decree of 10 July 1937 published in the
Reichsgesetzblatt of 1937, page 769.[163] I shall submit that decree in
a supplement to my document book.
Witness, concerning the evidence submitted by the prosecution, could
you discuss a case which reveals such efforts being made by the Party?
A. I am able to do that. I refer to the statements made by the
prosecution witness Ferber. He dealt with a case about which Guertner
had frequently talked to me. That was the case against Heller in which
the law against motor car traps [Gesetz ueber die Autofallen-Stellung]
had been applied. For the information of the Tribunal I may say that
law was promulgated on 22 June 1938. It is based on the particular
initiative of Hitler.
The facts of the case were as follows: Soon after that law had been
promulgated, Heller and his mistress as the riders of a driving
school [sic][164] had attacked a driver and had robbed his money.
While the case was being tried before the Special Court in Nuernberg
in the presence of Gauleiter Streicher, and Denzler, the Gau legal
office leader, Hitler appeared in Nuernberg unexpectedly. A death
sentence against Heller was expected for certain. Evidently Streicher
and Denzler intended to submit to Hitler in his presence a proposal
for a death sentence on the basis of this new law in which Hitler
was particularly interested. A telephone call was put through to the
Ministry of Justice to hear an opinion on the question of clemency.
Opposition was encountered there on the part of the Referent. That
Referent was Ministerialrat Westphal, who was indicted here.[165] He
refused to give his opinion because the legal problem which had arisen
in the Heller case was being dealt with in a case before the Reich
Supreme Court which was still pending and was there to be submitted
for the opinion of the Reich Supreme Court judges. At that point the
Party representatives became busy. Denzler reported this information to
Hitler implying that Guertner obviously was sabotaging the application
of this law, which Hitler himself had promoted, and he boasted that
that was enough to bring about Guertner’s fall. At any rate, that
interference on the part of the Party led to the fact that Hitler,
following Denzler’s report, ordered the death sentence to be executed
without waiting for the Ministry of Justice to give its opinion.
In Berlin, Hitler took to account the Referent Westphal in great anger
for sabotaging the law, and only because Guertner acted on behalf of
his own staff and only with the greatest effort was it possible to save
Westphal.
Q. The Heller case which has just been mentioned begins in the
transcript, page 1324, English text.[166]
What part did Goebbels play in that struggle against the administration
of justice?
A. Goebbels set the machinery of propaganda to work against the
administration of justice. He deluded the public by telling them that
the people no longer had any confidence in the judiciary. That was a
delusion for the opposite was true.
His propaganda machine not only made direct or camouflaged attacks
against the judiciary in public and tried to lower their prestige,
but he also tried by his art of dialectics in his speeches on the
administration of justice quite deliberately to lead the judges astray
and to put their consciences as judges to sleep. He coined the concept
of the exigency of the State, and said that the courts, too, ought to
make that their starting point. For a sentence, first of all expedience
was decisive, and only later, perhaps, justice might also be considered.
Q. Goebbels’ speech before the members of the People’s Court is
contained in Document NG-417, Prosecution Exhibit 23.[167]
What were the opportunities at the disposal of those power groups and
which they made use of in their struggle against the administration of
justice?
A. Himmler, Bormann, and Goebbels were the closest confidants of
Hitler. They had access to him at any time. For him they represented
the uncompromising incarnation of national socialism. He listened to
them when they alleged national socialism was being endangered by the
administration of justice. The entire apparatus of Party politics,
police, and espionage was at their disposal. On the other hand,
the Ministry of Justice was entirely isolated. Contact between the
ministries, which would have strengthened its position, no longer
existed.
Q. Here I would like to refer to the verdict of the IMT, English
transcript, page 16963[168], and I would like to quote that passage
briefly: “As to the first reason for our decision, it is to be observed
that from the time that it can be said that a conspiracy to make
aggressive war existed the Reich cabinet did not constitute a governing
body, but was merely an aggregation of administrative officers subject
to the absolute control of Hitler.”
Witness, will you continue, please?
A. In view of that situation, what could a Ministry of Justice do which
was directed merely by an Under-Secretary as acting Minister who,
furthermore, was not a member of the Party and whose words, naturally,
did not get the same hearing as those of a Minister; a man who, as the
indictment said, never attained cabinet rank? According to an express
instruction by Hitler, the chief only was told those things which were
necessary for him to fulfill his own task. It is evident that that
instruction made possible all kinds of limitations. * * *
(Recess)
Q. Witness, before the recess we discussed the possibilities at the
disposal of these power groups. Please, will you continue.
A. I ventured to point out that Hitler had given an explicit order
that a chief of any office should only be instructed about that which
he had to know in order to carry out his tasks. And that went very
far. That situation is better explained by the fact that Minister
Guertner, for instance, only found out about the euthanasia decree[169]
when in reports on the situation rendered by the presidents of the
district courts of appeal, a certain suspicion arose that this decree
was carried out, and Guertner categorically demanded an elucidation.
Whereas other ministers were authorized to listen to foreign
broadcasts, that was prohibited to the Minister of Justice under threat
of punishment. When I objected against this, I was told in reply that I
should turn to the Ministry of Propaganda which would inform me about
everything that happened.
I may point out that the opinion of the International Military Tribunal
states that on account of the control over broadcasting and the press,
and the propaganda machine, an independent judgment based on freedom of
thought became an absolute impossibility. I, from my own experience,
can only confirm that statement. A significant example is given by the
following occurrence--an example showing the extent of that spy system.
The Gauleiter of East Prussia had protested against the administration
of justice in his district. In order to examine these complaints in
1940 or 1941--I do not know the date precisely any more--I traveled
to Koenigsberg and found out that as for the reports by the president
of the district court of appeal, the Gauleiter was informed about
these reports sooner than I was. Based on warnings received from
reliable sources, I had to expect that in the various offices of
the municipality which I had to visit, special microphones had been
installed for the occasion of my visit, and I could only talk with
my personal Referent by driving out to the beach and picking out an
isolated beach chair there in order to be able to talk to him without
anybody listening to us and spying on us.
Q. The passage in the opinion of the International Military Tribunal,
to which the witness referred, is contained in the English transcript
on page 16,813.[170] Witness, the prosecution charges you with the fact
that the Ministry of Justice was in an official contact with these
offices which you have just mentioned. What can you say about this?
A. I believe that that contact is inherent in the structure of the
State: the distribution of tasks to the various agencies. A cooperation
with the police was certainly to a certain extent unavoidable.
According to German law of criminal procedure, the prosecution is not
in a position at all, without the cooperation of the police, to carry
out the required investigations pending trial. If a denouncement has
been received by the prosecution, the prosecution has to conduct the
necessary investigation first of all. That the prosecution should do
all that itself, considering the large number of things to be done,
is quite impossible. The prosecution, therefore, has to turn to the
local police and, for good reasons, in the German Judicature Act and
the German Code for Penal Procedure, the police are designated as an
auxiliary organ for the prosecution and directed to cooperate upon
request of the prosecution.
Apart from the police, frequently the SD is mentioned in the trial. On
the part of Hitler, the SD apart from its function within the Party
had received important tasks, such as the delivery of information to
various Reich agencies, and therefore even the court authorities had to
refer to that source of information.
Q. In this connection, may I refer to Document NG-219, Prosecution
Exhibit 42.[171] Please continue.
A. The position of the Party Chancellery, was regulated legally in
a way that changes of personnel, that is to say, promotions and
appointments could only take place with the cooperation on the part of
the Party Chancellery. That I have already pointed out. Added to this
was the fact that in 1942, the Chief of the Party Chancellery was given
the position of a Reich Minister participating in legislation. It was
therefore necessary to let him participate in the preparation of every
law.
Q. The decree of 16 January 1942, to which reference was just made,
I shall submit as Schlegelberger Document 23, Schlegelberger Exhibit
63.[172]
A. And then finally the Ministry of Propaganda. The fact that this
Ministry was directed by Goebbels may cause, to a non-German’s mind,
the misconception that this was a Party function. That, as I said,
would be a misconception because the Ministry of Propaganda was not a
Party office but a Ministry, just as the Ministry of Justice or the
Ministry of Finance, or the Foreign Office, and that there was an
official channel between all the ministries is a matter of course in
every state. But that connection was also a necessity from the point of
view of [self] defense. Only thus was it possible, at least from time
to time, to guard oneself against surprises. Only thus was it possible,
perhaps in the very last moment, to make successful objections.
Q. The witness referred to a provision of the Code of Penal Procedure
according to which the prosecution could authorize the police to make
investigations. That is article 161 of the Code of Penal Procedure.
Furthermore, in this connection, article 146 of the Judicature Act has
to be considered. About the importance of reports and information from
the SD, I shall submit as Schlegelberger Document 92, Schlegelberger
Exhibit 85, a report from the handbook for allied troops.
Witness, in your own camp, that is to say in the field of the
administration of justice itself, did you have to fight against
opposition?
A. That question, unfortunately, I have to confirm emphatically.
First of all, and very briefly, I again have to mention Frank in
this connection, the representative of the National Socialist legal
ideology, who through all available channels succeeded in bringing this
thought before the public. As means, he had at his disposal, first the
legal publications under his influence, the National Socialist Legal
Workers’ League whose president he was, and the Academy of German Law
which he had created. That academy which possibly, in view of its
composition, could be considered a sort of scientific institute to aid
the administration of justice, evolved by Frank as a competition in
order to direct the Ministry of Justice, to overrule and to discredit
it with the Party. As soon as he found out, from his own information
sources, that the Ministry of Justice intended to carry out reforms,
he mobilized his academy immediately which on its part was to prepare
plans and to publish them, and not much emphasis was placed upon their
quality. But the main purpose was to demonstrate that Frank was the
leader of the living young justice in opposition to the old senile
machinery of justice of the State. Apart from that goal to carry out
his famous thesis, “Right is that which serves the German people,” he
also for personal ambitions and, last but not least, for that ambition,
had intentions to take over the post of Ministry of Justice.
Q. Could you name other personalities who in that manner fought against
the administration of justice?
A. From the inside, unfortunately, yes. I have not completed my
statement. I am thinking of Thierack. Thierack had very close
connections to Bormann. He concentrated his efforts at first on the
President of the People’s Court, a position he held at the time. Behind
the back of the Ministry of Justice in 1936, he arranged that Hitler
make a speech before the People’s Court. As these proceedings have
shown, in 1937 he had attempted to arrange another speech of that kind.
Q. The witness refers here to Document NG-209, Prosecution Exhibit
105.[173]
A. The judges of the People’s Court in this manner should be brought
to understand that the People’s Court was an institution of a special
nature, in closest connection to Hitler himself; and that it was only
by a mistaken step that the People’s Court had been incorporated into
the administrative structure of the Ministry of Justice; and concerning
that administrative connection in 1938, again in all secrecy, he tried
through the Chief of the Reich Chancellery, to have the presidency
of the People’s Court, following the Italian example, subordinated
immediately to Hitler. To my knowledge, Thierack, after he became
Minister,[174] did not continue with these attempts. As I was informed
from various sources, in his attempts to become Minister, he is alleged
to have promised to the Party that the office of the prosecution should
be turned over to the police. I shall later refer to the occurrences
during the trial of the Czech Minister-President Elias; but in the end
I still have to emphasize what extraordinary difficulties were made for
me by the personality of Freisler.
Q. Who was Freisler?
A. Well, the witness Behl once characterized Freisler as the
representative of the Party interests in the Ministry of Justice. That
was correct. His career was the following: Freisler was a prisoner of
war in Russia during the First World War. After the end of the war
he remained in Russia for a considerable period of time. About his
activities during that period of time in Russia, a veil has never
been completely lifted. After he returned, he became an attorney at
Kassel, mainly acting as defense counsel for National Socialists. When
the Prussian Ministry of Justice was put in the hands of Minister
Kerrl, the latter called the old Party member, Freisler, to the post
of Under Secretary. He remained there until in 1934, on the occasion
of the merger of both offices in 1934, he was transferred to the
Reich Ministry of Justice. Freisler no doubt possessed a high degree
of intelligence, but quite apparently he was of abnormal spiritual
inclinations that ranged from extreme brutality all the way to a rather
feminine weakness. After he had insulted his assistants in the worst
possible manner without any reason, it would occur that soon after he
came to them to ask for their forgiveness in a very servile manner.
The Tribunal has actually made the acquaintance of Freisler optically
and acoustically.[175] He was quite well informed about problems of
criminal law, but he lacked any continuity and seriousness in his work.
He was restless and imbued with a lust for power, always looking for
new tasks and new problems. He was an old Party member, and he had the
Golden Party Badge, but he represented that type of National Socialist
who again and again fearfully vied for the favor of Hitler. Hitler
definitely recognized him as a one hundred percent National Socialist,
but personally did not think as much of him as Freisler would have
liked. Therefrom, and from his task to supervise the Ministry from
the National Socialist point of view, and from his indisputable
intelligence and his expert knowledge in the field of criminal law, the
dangerous qualities in his personality could be seen. He knew where
he had to start in order to achieve his goals. To work with him was
extremely difficult, and I may well say here that Freisler was the one,
after all, who undermined the work and the strength of Guertner and
contributed to his early death. And so, as far as I was concerned, my
continuous attempts to restrict Freisler made it extremely difficult
for me in my position. He did not stick to decisions which we had
made in long debates. He made secret promises to the [Nazi] Party
which, after they became apparent, restricted the Minister in his
possibilities of action.
Again and again I discovered that, partly intentionally, partly out of
neglect, he had failed to report to me on important occurrences. He had
prohibited his ministerial directors from reporting to me directly. He
wanted to do everything alone. In addition, although he did not drink
much, he could not restrain himself once he started to drink, and in
a condition of that kind he frequently made statements which gave an
entirely wrong picture of the intentions of the Minister. Then when the
disappointment came, when the agencies concerned found out that the
practice of the Ministry was not according to these statements, then,
of course, there were serious accusations on the part of the Party and
a renewed struggle.
His unstable nature brought it about that when I made objections to
him he, frequently in tears, promised to better himself; but his moral
strength was not sufficient to make him keep these promises for any
length of time.
Of course, my position with regard to Freisler was weaker than that
of Guertner. I was, indeed, in charge of the work of the Ministry,
but only due to the fact that I was the senior Under Secretary;
otherwise we were on the same level. The possibility of influencing
him or influencing others against him, was very limited for me,
all the more because my mission was not set for a certain time,
but could be repealed any day. Therefore, I could only find the
optimal accomplishment of my tasks in maintaining the status quo in
the Ministry of Justice as it was at the time of Guertner’s death;
especially if one takes into consideration as a matter of course that
on the one hand the attacks from the Party became stronger, being faced
with a weaker man in charge of the Ministry, and that on the other
hand this weaker man was always confronted with the necessity of an
increased resistance on his part.
In these proceedings here the witness, Father Wein,[176] confirmed
that during the time when I was in charge of conducting the affairs,
the administration of justice had not deteriorated and that only the
appointment of Thierack brought about an absolute change-over. I ask
you to try to understand that in that I found a justification for the
work of my life under these conditions as I have described them.
Q. What did the taking over of the post of Minister by Thierack mean to
you?
A. I believe I should continue at the point where the speech made by
the prosecution left off. The prosecution said, “Schlegelberger had
seen the storm brewing.” That is quite correct. I anticipated a storm,
and I tried to prevent it. The attitude of Thierack up to that time
and his close relations with Bormann did not leave any doubt as to his
program, and just as I interpreted that, it came about. As soon as
Thierack assumed office, a complete change-over occurred. It was not a
gradual deterioration, but it was that famous construction of a strong
National Socialist administration of justice as it had been ordered by
Hitler. I merely point to the changes in the administration of justice
and in legislation which are contained in material submitted by the
prosecution. If one sees what had been demanded for a long time and
which by all means was tried to achieve, if one sees how that all of a
sudden now came into effect, I believe then only one can find the right
measure for that which I, in a continuous struggle, had prevented or
had delayed. I do not want to omit but to describe briefly the complete
change in personnel policy. With the exception of the man in charge
of the budget department, all ministerial directors were released by
Thierack and many Referenten transferred. The entire top level of the
Ministry had changed overnight. Furthermore, twenty-two presidents of
district courts of appeal, eleven of them the best ones on the basis of
their qualifications, and four general prosecutors were retired.
If in the dire situation of war such a unique measure is taken, one
demonstrates most clearly that my dismissal and the appointment of
Thierack, in the feeling of Hitler and Thierack, represent the point at
which an entire new development starts. The purge measures by Thierack
were extended also to the many non-Aryan judges or judges with Jewish
relatives who at that time were still in service and to many officials
who did not just belong to the Party.
I believe that my decision to fight until the very limit, and to
stay that long in the Ministry, has found its justification. Clearly
anticipating that with that new man [Thierack] chaos would start for
the administration of justice, there was only one thing left to me;
although the burden physically and psychologically was at times almost
impossible to bear, to try and bear it, and to fight as resiliently as
possible. Of course, it was clear to me, and I had to experience the
fact too, that I would be beaten at times, and had to decide to make
detours wherever I could take that upon my conscience.
Q. In your opinion, what was that extreme limit which could still be
justified--of those which you have just mentioned?
A. If the Tribunal was good enough to follow me in the description of
my life, then it will easily recognize what my work at that time meant
to a man whose life was devoted to the law. At times, today, it is
hard even for me to transfer myself back again into those days and to
bring those days back. In a system which was worked out to the very
last detail of expediency and power, there was a lonely island amidst
the continuous storm in those days--that was the administration of
justice. I had to experience how the storm hit again and again, and how
certain sacrifices had to be made to this storm of power in order to
prevent it from triumphing completely. For me, in that situation, there
was only one consideration--can a measure be made compatible with the
uncompromising principles of law such as I had considered them so far
as a matter of course? Was not everything now only a question of power?
How could I avoid that lust for power and prevent the accomplishment
of these designs? What will go through regardless of my cooperation
and what can I prevent without cooperation? And that deliberation led
me to find that extreme limit which I have mentioned before. It was
for me the final abolition of the independence of the courts. I had
to try to maintain this independence at all costs. In spite of and
in the face of the devilish propaganda on the part of Goebbels, I
was of the firm conviction that the German courts and German judges
were still in good shape. Although, now, from the large number of
the many sentences, particularly of the more recent period, the
prosecution may select a few in order to prove that legal principles
were abandoned in the sentences. To deal with individual cases is not
my task in these proceedings. A full examination of the entire field
of the administration of justice would show that this conviction of
mine was very well founded, and that the maintenance of the integrity
of the German courts was a goal which was well worth my work and my
trouble; because I was, and still am, of the opinion that the work of
the courts is the most secure guaranty for the law. Therefore, I tried
again and again to draw various fields within the scope of work of the
courts. For instance, in the economic field, the problem of getting
agriculture [farms] out of debt [Landwirtschaftliche Entschuldung], the
question of hereditary and marriage health, but the basic prerequisite
was that the courts had to remain independent. When, in 1937, in the
German Civil Service Law, Hitler was given the right to retire any
civil servant if this civil servant could not be expected at any time
to fight for the National Socialist State, in my capacity as chief of
the Department for Public Law at the Ministry, I had a security clause
inserted for the judges; this clause provided that measures regarding
the judicial civil servant could not be based on the objective contents
of a judge’s decision. Once the independence of the courts was lost,
the protection of the courts was lost, too. The activity of the courts
could even become a danger. Therefore, I drew for myself this extreme
limit for my stay in office. With the resolution of the Reichstag of
26 April 1942,[177] my struggle reached its final stage. It was not
quite clear, as it appeared frequently with Hitler’s speeches whether
or not his speech had attacked the administration of justice merely for
tactical reasons, and whether the true objects were general ones.[178]
Dr. Lammers, the Chief of the Reich Chancellery, to whom I spoke
immediately after the speech about all these matters, confirmed that
background to me as being the true objective of Hitler’s polemics. I
had to create clarity. I wrote to Hitler a report [Fuehrerinformation]
to the effect that the judges were extremely disturbed by that speech.
I had explained to the judges that with all the weight of my office,
I would protect every judge who acted according to his conscience and
to the law. That clarified the situation as far as I was concerned.
If Hitler’s speech really meant the beginning of the end of the
independence of the courts, then he had to consider my statement as an
open declaration of war. That was what I wanted, and I wanted to bring
about a breach, in that case, on purpose.
Q. How did your dismissal come about?
A. Hitler at first did not answer that letter which I just mentioned.
There was a lot of talk behind the scenes about a new appointment
for the post of Minister. A few weeks later, Lammers, Chief of the
Reich Chancellery, called me to him and told me that Hitler had made
up his mind to appoint a new Minister of Justice, and he asked me
what my attitude would be if the choice fell on Thierack. I replied
that to work with Thierack was quite out of the question. Literally,
I added, “I would not sit at the same table with Thierack.” Lammers
replied, that was what he had thought, and for that eventuality he
was instructed by Hitler to offer me another office comparable to the
position I was holding. He had thought it over and was now prepared to
offer me the position of President of the Reich Supreme Administrative
Court. I rejected that offer and asked Lammers to inform Hitler that
I would accept a new office under no circumstances, but wanted to
be retired. Soon after, Lammers wrote me that I should come to his
quarters at Zhitomir and receive the document concerning my retirement
from office and thereafter, to report to Hitler at his headquarters at
Vinnitsa in order to take my leave. That order I carried out. On that
occasion, Lammers, on order from Hitler, gave me a check for 100,000
marks, which should make it easier for me to bridge the transition into
retirement.
I was not happy about that donation; on the contrary, I was greatly
disturbed. I got in touch with the Chief of the Presidential
Chancellery, Dr. Meissner, and asked how I could avoid accepting that
amount. Meissner replied that refusal was impossible, because it would
mean an unfriendly act toward Hitler, and all the bad consequences
would have to be accepted. Thereupon, I did not return the check and
when the Russians came, that amount was still untouched in the bank.
At Vinnitsa, Hitler received me. The conversation lasted about 20
minutes. Hitler told me approximately the following: He required his
officials to carry out his instructions without criticism of any kind.
He added, “Since you have already criticized my measures, I believe
it is better if we separate.” He was referring to the report which
I have already mentioned. I took advantage of that opportunity to
tell Hitler with all the frankness at my disposal that an intact and
independent administration of justice was a vital question for Germany;
that his method to form his judgment on the basis of information
received from Gauleiters, and his intention to retire judges who had
done their duty, was an impossibility. The very concept of a judge
required independence. People would never respect the judgment of a
dependent judge as an expression of law. I added that if I had remained
in office, I would have continued to protect anybody who was prosecuted
unjustly.
Hitler took these statements on the whole quite calmly. Time and time
again he even nodded approval; but when I touched upon the question of
the independence of judges in connection with his Reichstag speech he
suddenly harangued against the generals and got into a hot fury which
slowly ebbed like a dying flame.
Q. The prosecution alleges that there was a conspiratorial cooperation
between you and your codefendants. Will you briefly describe your
relations with the codefendants?
A. As for these relations I have, in part, to answer absolutely in the
negative. A number of my codefendants I have only met here. Not with
a single one of the defendants here did I have any personal contact
beyond official connections. These official contacts in most cases
consisted of just occasional conferences required by the work.
As the defendants’ dock shows, the prosecution has selected a mere few
from the large number of officials of the administration of justice.
All of them, together with other colleagues, worked only in that field
to which they were assigned. If one would follow the principle of
conspiracy as expounded by the prosecution, the entire administration
of justice since 1933 would have to be considered one organization
in the meaning of the count of the indictment. And I believe that an
opinion of that nature would best be rebutted by the fact that when I
left the Ministry of Justice, that great change took place. That is
sufficient rebuttal for the assertion of personal homogeneity of the
officials and the judges.
Q. We want to depart now from personal matters and discuss the
complaints made against you. The objective charges made against you
begin with the centralization [Verreichlichung] of the administration
of justice. Will you give us your general point of view concerning that
question?
A. When the empire was founded in 1871, certain agencies of the
Reich were founded as an over-all authority beyond the limits of the
individual federal state. The same occurred in the field of justice.
At that time, it was called the Reich Justice Office [Reichjustizamt]
and, in fact, was a Reich Ministry. Later, it got that name. The Reich
Justice Office had almost exclusively legislative functions. It had to
deal with regulations for the administration of justice.
Once such a regulation had been passed, all states had to issue
executive laws for the execution of the respective regulation. That
meant that after each major Reich law had been passed, more than 20
laws had to be passed in the various states to carry out the principles
of the Reich law.
What that machinery meant can be seen if one looks at the collection
of these executive laws of various states. With great surprise you
find that this fills two fat volumes. As for administrative tasks, the
Reich Justice Office, as already mentioned, only had to take care of
the Reich Supreme Court, and in the course of time, the Reich Patent
Office. Here, also, the various states [Laender] had to cooperate. The
selection of judges for the Reich Supreme Court required most difficult
negotiations. One has to have seen that, in order to realize fully with
what jealousy each individual state saw to it that these various posts
were filled according to a definite key.
It could happen that a small state could not even offer an appropriate
candidate for such a position at the Reich Supreme Court, but then one
had to preserve the claim and register it very carefully so that the
next time, they could be given it. It was just as difficult to select
officials for the Ministry of Justice. That, too, required negotiations
and thus it came about that, long before 1933, everywhere, the desire
for a uniform administration of justice for the entire Reich was
expressed. I may remind you that the witness Behl[179] has stated that
even the Social Democratic Party of Germany was expressly of that same
opinion.
Q. Witness, you referred to the assumption of the administration of
justice by the Reich.
A. Before the recess I pointed out that the desire for a uniform,
centralized administration of justice had already existed in the period
prior to 1933. The Reich Minister of Justice, Guertner, worked for that
idea of the centralization of the administration of justice with great
energy. The fact that he as a Bavarian did so, although it is generally
known how very much Bavaria was interested in a life of its own,
explains best the fact that Guertner had very good reasons for doing
so. As often occurs in life, by accident a circumstance arose which
speeded up the execution of that idea. This is what happened:
Once when I had a conversation with Kerrl, the Minister of Justice
of Prussia at that time, and visited with him the training camp for
Prussian law students--a camp which has been repeatedly referred to in
this trial--I said to him that it must have cost a great deal of money
to set up that camp; Kerrl laughed and replied, quite frankly:
“Oh, it didn’t cost me anything. The amounts were donated by
large firms, in whose cases we were very considerate about
prosecuting them under penal law. Naturally, the money was not
transferred to me directly, but it came to me via the Winter
Relief [Winterhilfe] account. However, the Winter Relief
Organization made it available to me, and with that money we
built up a very decent camp, as you can see for yourself.”
I was more than disgusted when I heard about those practices he thus
unveiled. I made a report to Guertner.
The right of supervision over the Ministries of Justice of the Laender,
was not in the hands of the Reich Minister of Justice. Guertner and I
agreed that those practices must be stopped at the earliest possible
moment, all the more so since one did not know whether or not in
other Laender, similar things might be happening as were happening in
Prussia. One could not tell what was happening because the ministries
of the Laender throughout had new men working with them concerning
whose persons, in some cases, one had certain misgivings, and justified
misgivings. Frank was the Minister of Justice for Bavaria, and Thierack
was the Minister of Justice for Saxony.
That experience increased Guertner’s energy in carrying out his work of
centralization. The basis for that work was laid down in the first and
second centralization laws dated 16 February and 5 December 1934.[180]
The result of the centralization, the transfer of the tasks of the
Ministries of Justice of the Laender to the Reich, was this, from the
political angle: The entire administration of justice from now on lay
in the hands of a minister who was not a member of the Party and who,
as Minister of Justice for Bavaria, had enjoyed the confidence of all
parties from the extreme right to the extreme left. I myself, who
also was not a member of the Party, remained at my post. The National
Socialist Ministers of Justice of the Laender lost their official
positions in the administration of justice.
The opinions of the Party as to the centralization of the
administration of justice is evidenced best by a statement of
Goering’s, which he made to me in 1941 when, in the course of a
conversation, I said to him that the Party at every opportunity made
difficulties for our ministry, he said to me: “That cannot surprise
you. The reason lies in the centralization of the administration of
justice under the circumstances under which it was achieved. That is
the reason why the Party as a group is opposed to the Reich Ministry of
Justice and makes life as difficult as possible for that ministry. The
Party is of the opinion that the administration of justice should again
be taken over by National Socialist hands.” Goering added, “I myself
will never pardon Guertner and you for the way you acted in 1934.”
Q. I shall submit Schlegelberger Document 26, Schlegelberger Exhibit
66,[181] in reference to the aforesaid statements. Will you please give
us a brief description of the organization of the Reich Ministry of
Justice?
A. Under the very top, that is, under the Reich Minister of Justice,
there were two separate under secretariats: the under secretariat for
civil law matters, the head of which was myself; the direction of the
secretariat for penal law matters which was in the hands of Freisler.
Further, he was in charge of the so-called organization section
[Organisationreferat], the Hereditary Farm Law [Erbhofrecht] and the
Inspection Office for Judicial Affairs [Justizpruefungsamt].
Under the two under secretariats there worked a total of six
ministerial directors each of whom was the head of his specialized
divisions. The number of these divisions and their sphere of work
changed several times in the course of time.
Inside some departments, subsections had been created which were in
charge of a Ministerialdirigent. The number of higher officials[182] in
the Reich Ministry of Justice amounted to approximately 250. Personnel
matters were divided into regions. As regards the East, I was only in
charge of my own home province, East Prussia. Otherwise, I dealt with
western and southern Germany, Freisler was in charge of the remaining
[regions]. Freisler was in charge of the People’s Court. The Reich
Supreme Court and the Reich patent office were in my charge. The two
divisions, directed by Under Secretaries were entirely separate from
one another. Freisler and myself had different times at which we went
to report to the Minister. The Minister asked me to come to see him
when Freisler had finished his report and had left the room. Only very
rarely, and only when one of my officials was to be appointed to a head
office in Freisler’s sphere, or vice versa, did the two of us meet at
the Minister’s. If one of the under secretaries was absent, his affairs
were dealt with by the Minister together with the competent ministerial
director. The other under secretary did not deputize for the one who
was absent.
May I cite an example? In 1938 I had to go to the hospital as a result
of an accident, and at that time the Minister did not discuss the new
German marriage law with Freisler, but with the head of the respective
department. If the Minister were also absent, the Under Secretary,
who was present in Berlin, did only a certain amount of duty for his
colleague. That is to say, he was available for matters which could
not possibly be postponed. In my recollection, that happened only
very rarely, for this was one point over which Freisler and I were in
absolute agreement. Neither had the wish to meddle with the other’s
affairs.
Furthermore, Freisler when he went on a business trip or when he went
away for the summer holidays was practically always in contact with
Berlin. Therefore, he told Dr. Guertner that a deputy for which I was
the only possible candidate was neither necessary nor desirable. It did
happen that when the Minister did not feel well and left the office
earlier, he asked me by telephone to sign and to dispatch letters which
he had already signed in draft form. Now and then that could have
concerned matters which fell into Freisler’s sphere when Freisler could
not be reached.
I should like to cite as example the letter which the prosecution
submitted about the fight against political Catholicism. Concerning
details accompanying that letter, I know nothing about this. In
particular, I do not know what particular pressure was exercised or
what instructions Hitler had issued in virtue of his right to lay down
the directives of policy but I should like on this occasion to say
something about what was the practice of the Ministry in regard to
church affairs. I should like to point out what the witness for the
prosecution, the Catholic Priest, Schosser, testified here on 9 May.
According to his testimony, the Ministry refused on the occasion of a
church funeral for Poles to take steps against the Catholic clergymen.
DR. KUBUSCHOK: The letter which you have mentioned is
Document NG-630, Prosecution Exhibit 428.[183] The examination which
you mentioned here of Father Schosser is on page 3021 in the English
transcript.[184]
* * * * * * *
V. EVIDENCE CONCERNING PRINCIPAL ISSUES IN THE CASE
A. Introduction
This major section of the volume contains selections from the evidence
concerning leading questions or issues of the trial. The evidence
selected for publication herein constitutes only about one-twentieth
of the total mimeographed record. Hence, all issues of the trial are
not covered, and numerous items of evidence mentioned in the printed
materials are not reproduced herein. Where extracts from testimony
have been reproduced, a footnote indicates the pages of the official
mimeographed transcript where the entire testimony can be found.
Both prosecution and defense evidence is contained in each of the
sections into which the evidence selected has been organized. The
prosecution evidence consists in the main of contemporaneous documents
of the Nazi era, most of them discovered in German archives by Allied
investigators after Germany’s unconditional surrender. The defense
evidence consists principally of extracts from the testimony of
defendants. A substantial number of the contemporaneous documents
offered by the defense have also been selected for publication.
With one or two exceptions, the contemporaneous documents have been
reproduced within the various sections in chronological order,
regardless of whether they were offered by the prosecution or the
defense. In selecting defense testimony under the various topical
sections, considerable emphasis has been given to the testimony of
the three defendants Schlegelberger, Rothenberger, and Klemm who were
appointed Under Secretaries in the Reich Ministry of Justice, and
to the testimony of the defendant Rothaug, presiding judge of the
Nuernberg Special Court.
The defendants were charged with participation in various types of
criminal conduct “by distortion and denial of judicial and penal
process.” The selections from the evidence below have been grouped into
five main sections (sec. VB through VF) treating of various types of
conduct by which it was alleged that the defendants engaged in criminal
acts as principals or accessories.
In Hitler’s Third Reich many persons were placed entirely outside
the judicial process. Therefore the first section (B) is concerned
with measures under which persons were committed to the “protective
custody” of the police (usually the Gestapo) or to the concentration
camps of Himmler’s SS.
The next four sections (C through F) deal with various methods whereby
it was charged that perversions of law and the judicial process were
employed to persecute, imprison, and execute or exterminate large
numbers of persons. Section C, which contains evidence on numerous
topics, has been divided into three periods of time: 1933--January
1941 when Guertner was Reich Minister of Justice; January 1941--August
1942, when the defendant Schlegelberger was acting Reich Minister
of Justice; and August 1942--1945, when Thierack was Reich Minister
of Justice. The next section (D) deals with large groups of persons
allegedly subjected to discriminatory treatment of many kinds: Germans,
Poles, Jews of several nationalities, the Night and Fog prisoners from
occupied western Europe, and others. Section E deals with the growth,
development, and application of such concepts as treason, undermining
the defensive strength, and public enemies. These concepts were applied
in cases against persons who were not nationals of Germany as well
as against Germans. The final section (F) deals with the handling of
religious matters.
Because of the close relationship of the developments of these various
topics to the crowded history of the Nazi regime, there necessarily
is considerable over-lap between the several sections into which the
evidence has been organized. A case where a Pole was convicted of
treason against Germany (reproduced here in sec. E) cannot be divorced
from the materials concerning the general treatment of Poles (included
in sec. D2). The Night and Fog prisoners offer another example, since
these prisoners were ordinarily kept incommunicado in concentration
camps, and the evidence concerning them (D3) is closely related to
the evidence dealing with protective custody and concentration camps
(B). The over-lap is often quite pronounced in the extracts from the
testimony of defendants. Most of the defendants were active in a number
of different fields and held different official positions during the
12 years of the Nazi era. In making out his case, each defendant chose
his own course in grouping together various items. In facing this
unavoidable problem of over-lap, the editors have employed footnotes
extensively in making cross-references between the materials contained
in various sections, particularly in extracts from testimony where
mention is made of decrees and other documents reproduced in various
parts of the volume.
B. Measures Outside the Judicial Process--Protective Custody, Transfer
of Persons to Concentration Camps and the Police
TRANSLATION OF KLEMM DOCUMENT 28
KLEMM DEFENSE EXHIBIT 28
ORDER OF PRUSSIAN MINISTRY OF JUSTICE, 15 MARCH 1934, INFORMING
AUTHORITIES OF GOERING’S DECREE OF 11 MARCH 1934, AUTHORIZING THE
GESTAPO AND CERTAIN PRUSSIAN AUTHORITIES TO ORDER PROTECTIVE CUSTODY
FOR POLITICAL REASONS[185]
No. 76 Order concerning measures of protective custody, Executive
Order of the Prussian Ministry of Justice of 15 March 1934 (I 3540),
_German Justice_, page 341.
On account of its importance also with regard to the official sphere of
activities of judicial authorities, I hereby inform these authorities
of the following decree, by the Prussian Ministerpraesident (Secret
State Police), dated 11 March 1934.
Berlin, 11 March 1934
The Prussian Ministerpraesident [Goering]
Secret State Police
Insp. 1946/11 March 34
Subject: Order concerning protective custody
Effective immediately I order the following:
1. The regulations which so far dealt with competence with regard
to the application of protective custody for political reasons are
cancelled. In future restrictions of personal freedom in accordance
with article 1 of the Decree for the Protection of the People and
State, dated 28 February 1933, may be ordered with effect on the entire
state territory [of Prussia] by the Secret State Police Office only,
and within their local fields of jurisdiction by the Oberpraesidenten,
Regierungspraesidenten, the police president in Berlin and the local
state police offices.
The district police authorities, especially the Landraete, are no
longer competent for such measures. The measures hitherto ordered by
them will be rescinded as per 31 March unless they have been extended
by order of the competent police authorities of the constituent states.
[Page 342]
Offices of the Party and the affiliated organizations may not carry out
arrests on their own initiative. In case of disobedience to this order
the competent authority will interfere, and report to me, at once.
To the Ober- and Regierungspraesidenten
Secret State Police Office in Berlin
Police President in Berlin
State Police Offices
TRANSLATION OF JOEL DOCUMENT 8
JOEL DEFENSE EXHIBIT 11[186]
LETTER OF REICH MINISTER OF JUSTICE GUERTNER TO REICH MINISTER OF THE
INTERIOR FRICK,[187] 14 MAY 1935, PROTESTING AGAINST THE “MISTREATMENT
OF COMMUNIST PRISONERS BY POLICEMEN”
_Copy_
The Reich Minister of Justice 3751 PS of the IMT
Z.F.g 10--1717.34
_Personal_
Berlin, 14 May 1935
To the Reich and Prussian Minister of the Interior,
Berlin
Subject: Mistreatment of Communist prisoners by policemen
Enclosure: 1 loose sheet
My Dear Reich Minister!
Enclosed you will find copy of a report of the inspector of the Secret
State Police, dated 28 March 1935.[188]
This report gives me an occasion to state my fundamental attitude
toward the question of the beating of internees. The numerous instances
of ill-treatment which have come to the knowledge of the administration
of justice can be divided into three different causes for such
ill-treatment of prisoners.
1. Beating as a disciplinary punishment [Hausstrafe] in concentration
camps.
2. Ill-treatment, mostly of political internees, in order to make them
talk.
3. Ill-treatment of internees arising out of sheer fun, or for sadistic
motives.
I should like to make the following detailed comments on those three
categories:
_About No. 1._ In the remand prisons and penal establishments
under the Ministry of Justice, there was no need to introduce
corporal punishment as a disciplinary measure. The experience of the
administration of justice has taught that a well trained, reliable, and
conscientious personnel of wardens is in a position to set up and to
maintain model order under a strict discipline, even without corporal
punishment. The more training and discipline the prison guards have,
the less need exists to introduce corporal punishment as a disciplinary
measure.
But if, contrary to this view, one is to suppose that there might be
a need to introduce corporal punishment in concentration camps, it
appears indispensable that this disciplinary measure and the manner
of its application should be determined, uniformly and unambiguously,
for the whole territory of the Reich. It has happened recently that
camp orders of individual concentration camps concerning this matter
and the use of weapons, contained unusually severe instructions which
were brought to the knowledge of the internees as a stern warning,
while the warden personnel was administratively informed that these
regulations which dated mostly from 1933 were no longer applicable.
Such a situation is equally dangerous for the warden personnel and
for the internees. It would therefore appear, after the question of
imposing protective custody was generally settled by the competent
minister, that in the interests of all concerned, one should urgently
and clearly define responsibility and legal aspect, furthermore that
the same responsible authority would have to settle, by means of camp
regulations generally applicable, the question of corporal punishment
as a disciplinary measure, which is still unclarified, as well as the
question of the use of arms by the warden personnel.
_About No. 2._ I cannot concur with the opinions expressed in
the enclosed letter. The present penal law, which I have to enforce,
renders liable to particularly severe penalties those officials guilty
of inflicting ill-treatment in the performance of their duties,
especially when such ill-treatment is used to extort admissions or
statements. That these legal provisions also reflect the will of the
Fuehrer and Reich Chancellor is shown by the fact that, during the
suppression of the Roehm revolt, the Fuehrer ordered the shooting of
three members of the SS who had ill-treated prisoners in Stettin. That
being the legal situation, it is out of order to grant silently one
part of the police forces permission to extort statements by means of
ill-treating prisoners. Such a measure would destroy the respect for
the existing laws and would thereby lead necessarily to the confusion
and demoralization of the officials concerned.
Furthermore, such statements extorted by force are practically without
value if they are supposed to serve as evidence in trials for high
treason. The courts which have jurisdiction in cases of high treason
consider to an ever increasing degree statements of the defendants made
before the police as worthless and without any evidenciary value for
court decisions. This was the result of their getting convinced in the
course of numerous proceedings that confessions and statements made
before the police were extorted by ill-treatment.
Moreover, I cannot follow the statements contained in the attached
report in as much as the beating of Communists held in custody is
regarded as an indispensable police measure for a more effective
suppression of Communist activities. These explanations of the Gestapo
office show precisely that the methods used up to now have not been
successful in combatting the illegal Communist machine or to hinder its
development.
Experience shows that such police measures may perhaps partially be
successful but that they never can attain a total suppression and
destruction of an illegal revolutionary organization which alone is of
importance in the long run. Behind such revolutionary organizations
there are professional revolutionaries of great experience and
frequently exceptional intelligence. These succeed very soon by means
of cleverly camouflaging all more important functionaries in excluding
for all practical purposes the possibility of betrayal as a result of
mistreatment.
_About No. 3._ The experience of the first revolutionary years
has shown that the persons who are charged to administer the beatings
generally lose pretty soon the feeling for the purpose and meaning of
their actions and permit themselves to be governed by personal feelings
of revenge or by sadistic tendencies. As an example, members of the
guard detail of the former concentration camp at Bredow near Stettin
completely stripped a prostitute who had an argument with one of them
and beat her with whips and cowhides in such a fashion that 2 months
later the woman still showed two open and infected wounds on the right
side of her buttocks, one 17.7 by 21.5 centimeters and the other 12.5
by 16.5 centimeters, as well as a similar wound on the left side of
the buttocks 7.5 by 17 centimeters. In the concentration camp at Kemna
near Wuppertal, prisoners were locked up in a narrow clothing locker
and were then tortured by blowing in cigarette smoke, upsetting the
locker, etc. In some cases the prisoners were given salt herring to
eat, so as to produce an especially strong and torturing thirst. In the
Hohenstein concentration camp in Saxony, prisoners had to stand under
a dripping apparatus especially constructed for this purpose until
the drops of water which fell down in even intervals caused seriously
infected wounds in their scalps. In a concentration camp in Hamburg
four prisoners were lashed for days--once without interruption for 3
days and nights, once 5 days and nights--to a grating in the form of a
cross, being fed so meagerly with dried bread that they almost died of
hunger.
These few examples show such a degree of cruelty which is an insult
to every German sensibility, that it is impossible to consider any
extenuating circumstances.
In conclusion, I should like to present my opinion about these three
points to you, my dear Reich Minister, in your capacity as cabinet
member in charge of the establishment of protective custody and the
camps for protective custody.
1. It seems now absolutely necessary that the competent minister should
decree unified camp regulations for all camps for protective custody,
which shall regulate completely and unmistakably the question of
corporal punishment as disciplinary measure, and the question of use of
weapons by the guards.
2. It appears necessary that the competent cabinet minister order valid
for all police authorities an absolute prohibition against mistreatment
of prisoners for the purpose of forcing statements.
3. All mistreatments which are entirely or partly due to personal
reasons must be prosecuted vigorously and punished under close
cooperation of all governmental offices concerned.
Heil Hitler!
[Signed] DR. GUERTNER
TRANSLATION OF DOCUMENT NG-326
PROSECUTION EXHIBIT 456
DIRECTIVE OF 12 JUNE 1937 FROM HEYDRICH, CHIEF OF THE SECURITY POLICE,
TO POLICE OFFICES, CONCERNING PROTECTIVE CUSTODY FOR JEWISH RACE
DEFILERS
_Copy_
The Chief of the Security Police Berlin, 12 June 1937
S-P (II B) No. 4021/37
[Handwritten] Annulled 28 August 1937
[Handwritten] Ku
Subject: Protective custody for Jewish race defilers.
From what I can see from a statistical survey, cases of race defilement
have increased considerably recently. In order to take preventive
measures against this danger, it is to be examined in every single case
of race defilement whether protective custody is necessary after the
sentence inflicted by law has been served.
For this purpose I request that a short report be made 1 month prior
to the discharge of the condemned from prison with the valid judgment
concerning the case of race defilement attached.
Apart from this I request that immediately after termination of legal
proceedings in a case of race defilement in which a male person of
German blood has been sentenced, the Jewess involved be taken into
protective custody and reported to this office.
No publicity whatever is to be made of this order.
[Signed] HEYDRICH
S. Certified: [Signed] KASKATH
Clerk
To all--
Higher State Police Offices
State Police Offices
Higher State Police Offices
Criminal Police Offices
TRANSLATION OF SCHLEGELBERGER DOCUMENT 90
SCHLEGELBERGER DEFENSE EXHIBIT 83
EXTRACTS FROM THE REGULATIONS OF THE REICH MINISTRY OF
THE INTERIOR, 25 JANUARY 1938,[189] CONCERNING
PROTECTIVE CUSTODY
* * * * * * *
Circular Decree[190] of the Reich Minister of the Interior
25 January 1938--Pol. S-V I No. 70/37--179 g
Secret
Article 1
Admissibility
1. For the protection against potential enemies of the people and the
State, the Secret State Police [Gestapo] is hereby authorized to
impose protective custody as a compulsory measure on all persons who
through their behavior endanger the welfare and the security of the
people and the State.
2. Protective custody shall not be decreed for punitive purposes or to
take the place of legal imprisonment. Punishable acts are to be judged
by the courts.
Article 2
Competence
1. Competence to order a person into protective custody rests
exclusively with the office of the Secret State Police.
2. Motions for an order of protective custody are to be addressed
through the local and regional State Police agencies to the office of
the Secret State Police. With every motion detailed reasons are to be
given which must include defensive statements [Einlassungen] made by
the arrested person. As soon as the person under provisional arrest
has been interrogated, a copy of this interrogation will be forwarded
immediately.
3. An order for protective custody can only be issued after the accused
has been heard on the charges raised against him.
Article 3
Temporary Arrest
1. The office of the Secret State Police, and the regional and local
state police agencies are authorized to order the temporary arrest of
any person to whom the provisions of article 1 apply, provided--
a. That such person is likely to engage in subversive activities unless
detained.
b. That there is danger that evidence may be destroyed
[Verdunklungsgefahr].
c. That the person is suspected of preparing for his escape.
2. The record must show that the accused has been advised of his
provisional arrest within 24 hours after he has been seized. Likewise
the record must show that he has been advised of the reasons for his
being placed under temporary arrest.
3. A person under temporary arrest must be released not later than 10
days from the day of his arrest, unless an order for protective custody
has been issued within that period by the office of the Secret State
Police.
Article 4
Right to Issue Directives
The right of the Reich governors, the Land government, the
Oberpraesidenten, and the Regierungspraesidenten, to issue directives
to the superior State Police and Police offices, is not affected by
articles 2 and 3.
Article 5
Order for Protective Custody
1. To place a person under protective custody an order for protective
custody must be issued in writing by the office of the Secret State
Police. At the time of his arrest or not later than the day after the
order for protective custody has been transmitted, the accused will be
handed a copy of the order for which he has to sign a receipt.
2. Any order for protective custody must include a brief statement of
the reasons for which protective custody was ordered.
3. The next of kin (wife, parents, children, brothers, or sisters) of
a person under protective custody are to be informed that he has been
placed under protective custody and where he is located, unless special
reasons render such action inadvisable.
4. If a civil servant is taken under protective custody the Secret
State Police must immediately notify his superior agency and state the
reasons for his protective custody.
5. If a member of the NSDAP or of any of its formations is taken under
protective custody, the Secret State Police must notify the Party
agency concerned and state the reasons for his protective custody.
Article 6
Execution
As a matter of principle, persons under protective custody are to be
placed in State concentration camps.
Article 7
Duration
1. Protective custody is to last no longer than necessary to achieve
its purpose.
2. Release from protective custody is ordered by the office of the
Secret State Police. It is the responsibility of the Secret State
Police to examine at regular intervals of not more than 3 months
whether the protective custody is to be lifted. The arrested person
must be released not later than 3 days after the protective custody has
been lifted.
Article 8
Foreigners
Foreigners, who have been taken into protective custody, are to be
deported unless special reasons render such action inadvisable.
Article 9
Executory Regulations
Executory regulations to implement the preceding provisions shall be
issued by the chief of the Security Police.
To the Office of the Secret State Police, the regional, and
local State Police Agencies.
For information only:
The Reich Ministers, Reich Governors, Land Governments, The
Prussian Oberpraesidenten, Regierungspraesidenten, and the
Police President of Berlin.
(Not published)
PARTIAL TRANSLATION OF DOCUMENT NG-2218
PROSECUTION EXHIBIT 604
CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO PRESIDENTS OF DISTRICT
COURTS OF APPEAL, 31 JANUARY 1938, REQUESTING LISTS OF ATTORNEYS
ALLOWED TO DEFEND PRISONERS HELD IN PROTECTIVE CUSTODY
Berlin, 31 January 1938
_Copy_
The Reich Minister of Justice
4611--1a^7 194/38
The Presidents of the District Courts of Appeal
Subject: Defense of prisoners in protective custody by attorneys
To prepare a decision of the Reich Leader SS and Chief of the German
Police on whether certain attorneys can generally be allowed to defend
prisoners held in protective custody, you are requested to examine
immediately whether attorneys in your district, and which ones, could
be considered in this respect. To defend prisoners held in protective
custody, qualification and reliability are necessary to a particularly
high extent. Therefore, in making the selection, a very strict standard
will have to be applied. Mere membership in the NSDAP--as far as it was
acquired only after 30 January 1933--will generally not warrant the
necessary extent of reliability; on the other hand, this qualification
will not have to be denied merely because the attorney is no Party
member. Only such attorneys can be considered whose attitudes prove
beyond doubt that they fully approve of the political plans of the
State and of the ideological aims of the movement. For the rest, it
will have to be assumed that attorneys not acting as counsel for the
defense in criminal cases--will generally not defend prisoners held in
protective custody either.
I request that attorneys qualified according to these rules to defend
prisoners held in protective custody and who, if possible, ought to
reside at various places of your district be in sufficient number
entered into a list arranged according to State Police Offices. As to
their qualification I request that the president of the bar then be
consulted, the necessity of a strictly confidential treatment will
have to be pointed out to him. Agencies, other than the judicial
administration, will not be consulted. I then request that two copies
of the list be submitted and that the opinion of the president of
the bar be attached. Concerning the attorneys mentioned in the list,
personal data and qualification for each of them have to be attached
in addition to the character and political attitude of the attorney,
particularly the manner of his professional training as counsel for
the defense in criminal cases has to be explained in this statement;
furthermore, if possible, whether it can be assumed that the attorney
enjoys the confidence of the State Police Office.
Negative reports, if such is the case, are requested.
As Deputy
[Signed] SCHLEGELBERGER
Note
I have discussed the question with the attorney Dr. Dormann today.
He received from me 3 copies of the decree to deal with them; it
was especially pointed out to him that the affair was strictly
confidential. After contacting Dr. Droege he will try to compile for
Hamburg and Bremen a list of such attorneys who are qualified to defend
prisoners in protective custody.
Note
After 2 weeks
11 February 1938
[Signed] LETZ
_Note._--I have reminded Dr. Dormann by telephone. The list is
under deliberation at present.
Note
1. To be submitted to the Senator.
2. Two weeks.
5 May 1938 [Signed] LETZ
When opinion arrives, report has to be made.
[Signed] ROTHENBERGER
Certified true copy.
Hamburg, 9 August 1947
[Signed] VON THADEN
Justizoberinspektor
[Stamp]
Hanseatic District Court of Appeal
Hamburg
TRANSLATION OF DOCUMENT NG-366
PROSECUTION EXHIBIT 256
MINUTES OF DEFENDANT KLEMM ON CONFERENCES OF REICH MINISTER OF JUSTICE
WITH ATTORNEYS GENERAL AND PRESIDENTS OF COURTS OF APPEAL, 23 AND 24
JANUARY 1939, CONCERNING PROTECTIVE CUSTODY
Conference with the Attorneys General [Generalstaatsanwaelte][191]
on 23 January 1939
Protective custody after serving punishment, after acquittal, after
release from arrest pending trial.
From the individual districts:
_Munich_ (Leimer)--In Memmingen 4 cases of arrest for protective
custody occurred and 2 of those after penal detention, 2 after arrest
pending trial (not advisable, because executed in the same prison,
probably even in the same cell), 8 in Augsburg, 1 in Kempten, 7 in
Munich, altogether 359 after penal detention. The cases are decreasing.
_Hamm_ (Semler)--No detrimental cases. 1 case in Arnsberg with the
explanation that there is no intention to criticize the sentence. There
have been frequent requests for calling back in cases where no warrant
of arrest is issued.
_Berlin_ (Jung)--The State Police [Stapo] takes functionaries
of the KPD [Communist Party] into protective custody after penal
detention. In cases where a warrant of arrest in high treason affairs
is rejected, protective custody is to be ordered at once. Furthermore,
in 1937 and 1938 a few priests and Jews in protective custody in cases
of refusal of warrants of arrest. Protective custody justified on an
acquitted sexual criminal (later conviction). No further annoying
clashes.
_Jena_ (Wurmstich)--Penitentiary inmates as a rule always in
protective custody after penal detention likewise traitors and
defaulters [violating restrictions acknowledged by signature upon
release]. As regards the detrimental cases, improvement since 1936.
Jehovah’s Witnesses are arrested on principle after penal detention,
but are mostly released after 3–4 days.
_Duesseldorf_ (Hagemann)--3–4 percent of the released are taken
into protective custody. Jehovah’s Witnesses are released, if they
countersign. There are frequent requests for calling back in cases,
where no warrants of arrest are issued.
_Stettin_ (Staecker)--Only in very few cases protective custody
after penal detention. In 2 cases (abortion by female defendant Dr.
Buchholz and 1 other case in accordance with section 175a of the penal
code [Sodomy]) protective custody was entirely justified as the result
of the appeal has shown. (Case Buchholz 4 years of hard labor.) As
a rule, Jehovah’s Witnesses and high treason criminals are arrested
pending trial.
_Celle_ (Schoenering)--On principle, traitors, Jehovah’s
Witnesses, homosexuals, and persons guilty of abortion are taken into
protective custody after penal detention. 4 detrimental cases of
protective custody: priest, RM 10,000 bail; race defiler, RM 15,000
bail; acquitted because of proved innocence; Jew (after being acquitted
of acting maliciously against the State); insulter of the SS (after
penal detention).
_Hamburg_ (Drescher)--Protective custody as preventative measure
after penal detention, etc., has to be acknowledged as justified, but
not as a correction of a judicial decision. No special details.
_Karlsruhe_ (Lautz)--Jehovah’s Witnesses as a rule are taken into
protective custody after penal detention. Protective custody after
repeal of the warrant of arrest was justified in 2 cases.
_Graz_ (Meissner)--The Chief Public Prosecutor asked the State
police in 2 cases for actions of protective custody, because a
13-year-old gangster could not be prosecuted and because the use of
violence could not be clearly proved to a priest in a case of sexual
crime.
_Brunswick_ (Mueller)--There is one case, where protective
custody as a correction of a judicial decision is embarrassing,
because protective custody is justified (priest, sexual criminal). In
another case, (priest, sexual criminal) the protective custody is not
justified. In general the State Police is trying to act in agreement
with the public prosecutor.
_Oldenburg_ (Christians)--On principle, functionaries of the
Communist Party are taken into protective custody after penal
detention, furthermore, Jehovah’s Witnesses in almost all cases. Only a
few unsatisfactory cases.
_Naumburg_ (Hahn)--Frequent request for calling back if no warrant
of arrest is issued. The impression has been given that judges are
deciding for a warrant of arrest, because protective custody seems to
them harder than arrest pending trial. Often the criticism of justice
because of actions of protective custody is not absolutely unjustified.
Special example: A former SS Sturmfuehrer (disloyalty) after 1 year of
penal detention was given another year in protective custody.
_Nuernberg_ (Bems)--Cases of protective custody after penal
detention, etc., have decreased, although frequently protective custody
is exercised, if no warrant of arrest is issued. Protective custody
as criticism of justice has not occurred any more. On principle, high
treason criminals, Jehovah’s Witnesses and race defilers are taken into
protective custody after penal detention.
The minister ends the conversation by stating that in the interest of
justice those cases are to be regretted where protective custody is to
be regarded as justified criticism of justice, besides no objections
can be raised against preventative measures.
[Signed] KLEMM
25 January 1939
Conference with the _Presidents_ of the Courts of Appeal on
24 January 1939
Protective custody after serving term of imprisonment, after acquittal,
after release from arrest pending trial.
_Hamm_ (Schneider)--Conditions have improved during the year
1938. The most important cases are the ones after arrest pending
trial. The taking into protective custody is performed more carefully
today because of the reputation of justice. The complaint has been
made that the length of protective custody is assuming the character
of punishment. In one case (public notary) protective custody after
release from arrest pending trial was justified. Some lawyers refrain
from submitting a complaint of arrest because protective custody is
pending. There are judges who in case of doubt issue a warrant of
arrest in order to avoid protective custody. In one case of criminal
proceedings homosexuals were released from arrest pending trial and
later on legally acquitted; during the trial, however, they were
brought to court from protective custody every day. Monks from Dorsten
were taken into protective custody after their acquittal.
_Darmstadt_ (Scriba)--In one case defendant taken into protective
custody while still being in court after acquittal. In some cases
protective custody was inflicted after repealing arrest pending trial,
release, however, was obtained after objecting by the administration of
justice. General picture: Decline of measures of protective custody in
face of contradictory legal decisions.
_Berlin_ (Hoelscher)--In 1938 only 3 cases of protective custody.
A decline of arrests has been observed.
_Duesseldorf_ (Schwister)--Frequent requests for calling back
if warrant of arrest has been refused. It has even been noticed
that corresponding agreements were made between the investigating
or examining judges and the State Police (Duesseldorf). In one case
protective custody was justified and in another case one additional
year of protective custody. Those cases are very rare now; good
understanding exists between the court and the State police. Therefore
the impression that justice is being criticized does not exist.
_Naumburg_ (Sattelmacher)--A mitigation has been noticed, however,
there are frequent requests for calling back if warrant had been
refused.
_Hamburg_ (Rothenberger)--Cases of protective custody have been
increased, because the warrants of protective custody are decided on
in Berlin. In 6 cases, Jewish women have been taken into protective
custody because of sexual intercourse with Aryans. In the case of
Laeiss _vs._ half-Jewess, she has already been under protective
custody for 1½ years. State police file notes from police records state:
(1) Protective custody, “to make the punishment finally effective.”
(2) Protective custody, “to make the served sentence still more
effective.”
(3) Protective custody, “because of the big number of previous
convictions.”
(4) Protective custody, “to prevent prejudicing the course of justice
through the interference of lawyers as defense counsel.”
_Rostock_ (Goetsch)--Good cooperation with the State Police, only
preventive measures have been noticed.
_Graz_ (Meldt)--No difficulties, not the slightest disharmony, or
criticism of the law.
The minister concludes the discussion by indicating that it is to be
the task of the presidents of the courts of appeal to see that arrests
in the courtroom by the State Police are avoided and recommends for the
rest to remain in contact with the State Police.
[Signed] KLEMM
25 January 1939
PARTIAL TRANSLATION OF DOCUMENT NG-629
PROSECUTION EXHIBIT 28
[Also Rothenberger Document 3
Rothenberger Defense Exhibit 3][192]
EXTRACTS FROM A REPORT ON A 1 FEBRUARY 1939 CONFERENCE AT THE
MINISTRY OF JUSTICE BETWEEN DEFENDANT ROTHENBERGER AND VARIOUS COURT
PRESIDENTS[193]
_Report on the conference of [court] presidents on 1 February 1939_
Present: Senator Dr. Rothenberger, Attorney General Dr.
Drescher, Vice President Letz, District Court Presidents Korn
and Dr. Ruther, Bremen, Local Court President Dr. Blunk, Local
Court Directors Schwarz, Boehmer, Hansen, and von Lehe, Senior
Judges of Local Court Gersdorf and Stender, Chief Public
Prosecutor Lohse, Bremen, Oberlandesgerichtsrat Dr. Segelken and
the undersigned.[194]
Senator Dr. Rothenberger and the attorney general reported on the
discussions at the meetings of the presidents of the courts of appeal
and attorneys general with the Reich Minister of Justice.
Senator Dr. Rothenberger first asked for a report on the attitude of
the judges with reference to the articles in the “Schwarze Korps”
[Black Corps, official newspaper of the SS] before his speech on 28
January 1939, and wanted to know whether his address had put their
minds at ease. With the exception of Wandsbek where the articles of
the “Schwarze Korps” evidently were not noticed, it was the general
opinion, expressed particularly by the district court president of
Hamburg and Director Hansen, Altona, that the judges were actually
extraordinarily disturbed by the attacks of the Schwarze Korps. The
statements made by Senator Dr. Rothenberger have had a rather soothing
effect since there was now some hope for improvement. However, there
were doubts as to whether the Reich Minister of Justice would succeed
in carrying his point against the Schwarze Korps i.e., the SS. These
doubts were based especially upon the former passive attitude of the
ministry.
I. The attorney general then reported on the penal development of the
events of 9 to 11 November.[195] The former regulation according to
which the State Police is the final authority in deciding whether or
not such a case should be followed up, has been abolished following
a decision by the Reich Ministry of Justice. The Reich Minister of
Justice and Chief Public Prosecutor Joel have stated that it would,
of course, be impossible to handle these things the normal legal
way; if, at first, the law as such has been changed by order from
higher authorities, then it would not be possible to prosecute those
people involved in the perpetration. Therefore, by way of example
the conception of violation of the public peace would have to be
abandoned. This can be legally justified because the perpetrators
lacked the knowledge of illegality since they acted on order. As
far as the criminal offenses committed during the encounter are
concerned, negligible acts should be disregarded. Otherwise, cases
will be withdrawn, but only by order of the Fuehrer, while serious
criminal offenses, as for instance rape and race defilement have to be
prosecuted. The order for prosecuting will be issued in every case by
the minister after, to begin with, the perpetrators in case they are
Party members or members of a Party organization have been expelled by
a special department of the Supreme Court of the Party which has been
established in Berlin.
Goering had strongly disapproved of the events. In his opinion, it was
the hardest blow the Party had ever received.
Comments concerning these events should not be prosecuted under the
Heimtueckegesetz if they were occasioned by well founded protest.
Senator Dr. Rothenberger pointed out that nothing had happened
in Hamburg, thanks to Gauleiter Kaufmann’s attitude which
Ministerpresident Goering had expressly recommended. He asked for
understanding in the attitude of the Reich Minister of Justice and to
pass that understanding on to the judges.
As far as prosecution under the Heimtueckegesetz is concerned, because
of comments about the events between 9 and 11 November, he stated that
the court might find itself in the position where it would have to
investigate the facts. Such cases would have to be reported.[196]
* * * * * * *
IV. The discussion on the question of protective custody by the police
was then reported upon. The standpoint of the ministry is, which also
finds approval here, that protective custody measures, insofar as they
are purely of a preventative nature, cannot be objected to; that,
however, corrective measures such as have become known in various cases
should not be permitted.
Senator Dr. Rothenberger requested _immediate presentation_ of all
cases in which the judge is under the impression that the police are
attempting to correct the verdict through their arrest measures. In
addition to this, all cases should immediately be reported in which the
police effect an arrest in the courtroom.
* * * * * * *
PARTIAL TRANSLATION OF DOCUMENT NG-340
PROSECUTION EXHIBIT 257
LETTER FROM BOUHLER, CHIEF OF THE FUEHRER’S NAZI PARTY CHANCELLERY, TO
LAMMERS, 26 JULY 1939, CONCERNING HITLER’S DECISION TO PLACE PERSONS IN
SECURITY DETENTION UNDER HIMMLER FOR WORK IN CONCENTRATION CAMPS
Berlin W 8, 26 July 1939
Vosstrasse 4
The Chief of the Chancellery of the Fuehrer in the NSDAP
To the
Chief of the Reich Chancellery, Dr. Lammers
Subject: People in security detention
Dear Party Member Dr. Lammers,
Some time ago the Reich Leader SS made a request to the Reich Minister
of Justice to the effect that some of the people in security detention
be put at his disposal for important work in the concentration camps.
The urgency for this increased, when on the 50th birthday of the
Fuehrer a great number of persons in protective custody were dismissed.
The request of the Reich Leader SS was refused in the letter of 14 July
1938 because these persons apart from carrying out work to fulfill the
requirements of the penal institutes also did such work as appeared
urgent under the Four Year Plan. When, however, the penitentiary
Brandenburg-Goehrden was inspected by the chief of the office for
matters concerning pardoning, the Chancellery of the Fuehrer, it was
established that a large number of the people in security detention
were busy painting cardboard soldiers for private firms. Considering
the far more important work (which can actually be regarded as urgent
in connection with the Four Year Plan) which is being carried out by
prisoners, for example, in the concentration camp Sachsenhausen and in
the adjoining brick yard, the Fuehrer has ordered that all dispensable
persons in security detention are to be put at the disposal of the
Reich Leader SS immediately.
At the request of the Reich Leader SS, after inspecting the
concentration camp Sachsenhausen in the spring, I supported the request
he made to the Fuehrer. I was then given the order to ascertain the
way in which the persons in security detention were occupied at the
present time. During the process of my investigation I established what
was required, and I also received the following report from the Reich
Ministry of Justice concerning this matter:
“According to the most recent information, there were 4,303
persons in security detention. Of these 4,096 are working; i.
e., 721 of them (16.8 percent) are carrying out work for the
requirement of the penal institutes and other authorities; and
3,375 persons in security detention (78.4 percent) are engaged
in work in connection with the Four Year Plan (including work
for export and for military use). The remaining 207 persons in
security detention (4.8 percent) were not working on the day of
my investigation, in consequence of illness or because they had
to undergo a term of imprisonment.”
There can be no doubt that the persons in security detention who
are working on the toys mentioned, and who, per person, enable the
institute to earn daily RM 1.20-1.80 are inserted under the heading of
“urgent work for the Four Year Plan.”
In consequence of my report in Obersalzberg, the Fuehrer, who already
had leanings toward this interpretation after my first report, decided
that the persons in security detention were to be incorporated into the
concentration camps under jurisdiction of the Reich Leader SS.
I have on purpose refrained from informing the Reich Minister of
Justice directly. I request you to inform the Reich Minister of Justice
of the decision of the Fuehrer.
I have informed the Reich Leader SS of the decision of the Fuehrer and
of my letter to you.
Heil Hitler!
Yours faithfully
[Signed] BOUHLER
TRANSLATION OF DOCUMENT NG-190
PROSECUTION EXHIBIT 284
VARIOUS MEMORANDUMS AND LISTS OF REICH MINISTRY OF JUSTICE, 28
SEPTEMBER 1939 TO 7 MARCH 1941, CONCERNING EXECUTIONS WITHOUT TRIAL OR
EXECUTIONS AFTER TRIAL UNDER VARIOUS CIRCUMSTANCES
1. Note by Reich Minister of Justice Guertner to Lammers, 28
September 1939, Concerning Executions of Three Persons Without
Trial and Urging Clarification of Problems Created by Punishment
“Without Criminal Proceedings and Without a Sentence.”
_Note_
1. _Publications in the press_
_a._ The Reich Leader SS and chief of the German police reports
that Johann Heinen, Dessau, was shot on 7 September 1939, because of
his refusal to cooperate in tasks for the protection of the security of
the national defense. In addition, Heinen was a criminal who had been
convicted previously for theft.
_b._ The Reich Leader SS and chief of the German police reports
the following have been shot:
(1) On 11 September 1939 Paul Mueller from Halle because of arson and
sabotage. Mueller had been convicted previously 8 times to imprisonment
and penitentiaries because of crimes violating property rights.
(2) On 15 September 1939 August Dickmann from Dinslaken, born 7 January
1910, because of his refusal to fulfill his duty as a soldier. D.
stated as a reason for his refusal that he was a Jehovah’s Witness.
He was a fanatical follower of the international sect of the serious
explorers of the Bible [ernste Bibelforscher, Jehovah’s Witnesses].
2. _Statement of facts_--Details are not known here since the
judicial authorities had nothing to do with the matter. Whether the
military judicial authorities have knowledge of it (case Dickmann) is
not known here either.
3. _Legal basis for the executions without trial_--The Fuehrer
is said to have ordered these executions, or to have approved them.
Furthermore, he is said to have ordered that the Reich Leader SS should
maintain by all means the security within the territory of the Reich,
and this order includes also immediate execution in cases of actions in
violation of war laws (report of SS Brigadefuehrer Dr. Best).
Upon the request for information about this order of the Fuehrer,
Gruppenfuehrer Heydrich replied that the Minister of Justice should
contact the Fuehrer directly in regard to the executions.
4. _Legal situation_--Should the information made available to the
Ministry of Justice be correct, then a concurrent jurisdiction would
now exist in the nonoccupied territory of the Reich, that is outside
of the area of combat and operation. There would exist in this area a
concurrent jurisdiction for the punishment of war crimes between the
People’s Court, the military courts, and the Special Court on one hand,
and the police on the other hand. According to which criteria should
the question of the competency be decided in the individual case?
Within the nonoccupied territory the state of public order and security
does not permit that any authority should be hampered or disturbed in
its activities.
The criminal procedure according to the war laws is practically the
same as the procedure before the courts martial. The Special Courts
have just not been _called_ courts martial. I refer to the case
of the farmer Glein from Obersleben near Weimar, who during the night
of 18 September 1939 put fire to his grain-rick and thus destroyed 100
hundred-weights of grain. He was sentenced to death by the Special
Court on 18 September 1939.
5. In a further case (Ernst Georgi of Freiberg), a warrant of arrest
had been issued against the defendant on charges of fraud. The State
Police, Office Plauen, suggested to place Georgi at the disposal of the
Secret State Police, and to cancel the trial fixed for the 18th of this
month, since this file should be treated in a special way according to
an order of the chief of the Security Police and, therefore, a transfer
to the trial in Freiberg would not be feasible.
In this case the crime was committed before the war decree
[Kriegsverordnung] took effect. After a short period the defendant
was returned to the public prosecutor. The trial took place, and the
sentence (10 years penitentiary, and protective custody) was passed on
26 September 1939. The Security Police did not refer to a general order
in this case. What the legal basis was for the interference with the
court proceedings, is not known to me.
6. I think it to be urgent that the problem, whether crimes committed
in the nonoccupied territories should be punished according to the
war laws, or by the police without criminal proceedings and without a
sentence, be clarified in general.
Berlin, 28 September 1939 [Signed] DR. GUERTNER
The above note, I handed over to colleague Lammers on 28 September 1939.
Berlin, 30 September 1939 [Signed] DR. GUERTNER
2. Handwritten File Note by Guertner, 14 October 1939, on a
Conference with Lammers Concerning Executions Without Trial upon
Order of Hitler
Note: 14 October 1939, 12:00 V. [Noon]
Lammers saw me by order of the Fuehrer.
He said that yesterday he had informed the Fuehrer about the contents
of my manuscript. The Fuehrer said he had not issued _general_
directions. He said he had ordered the 3 executions [Erschiessungen].
He also could not give up this right in individual cases, since the
courts (military and civilian) did not prove capable of coping with the
peculiar conditions of war.
Thus, he had ordered now the execution of the Teltow bank robbers.
Himmler would contact me in this matter before the day is over.
14 October 1939
[Signed] GUERTNER
3. Draft of a Proposed Letter from Guertner to Himmler, 30
November 1939, Concerning the “Carrying-out of Death Sentences”
Berlin, 30 November 1939
The Reich Minister of Justice
To the
Reich Leader SS and Chief of the
German Police in the Reich Ministry of the
Interior, Heinrich Himmler
Subject: Carrying-out of death sentences
Enclosures: 2 documents (one copy of sheets 110–115 of the file
IIIg 19 5039/39 and one of the attached list II, sheets 67–72 of
the file IIIg _10a_ 5010/39)
[Handwritten marginal note] To be submitted again on 30 November
1939
[Initialed] GTR [Guertner]
Dear Herr Himmler!
For your information I submit in the enclosure[197] two copies of
list reports to the Fuehrer about the death sentences passed since 3
September 1939, the day I have been put in charge of decisions about
appeals for mercy in regard to death sentences--and about the decisions
I made, or intend to make.
In regard to the shootings, mentioned at the end of list II it has
been published in the press that the perpetrators, as for instance in
the cases of Latacz, Jacobs, and Gluth, had made themselves guilty of
resistance by force or, as for instance in the case of Potzleschak,
had tried to escape. Let me point out that these publications--always
using the same phraseology--were apt to attract the same attention of
at least those persons who participated in the criminal proceedings.
On the day before the shooting of Latacz the press had reported about
the trial which took place in the hospital for prisoners on remand.
Latacz who prior to his transfer was lying in the prison hospital, had
a bandage with metal braces. Thus, also the broad public was informed
about his physical condition, and knew that a resistance was hardly
possible in such a condition.
Heil Hitler!
Yours very much devoted
To be signed by the Minister [initialed] Dr. C.[198] [Crohne]
28 November
4. List compiled by the Reich Ministry of Justice tabulating
information concerning 18 persons executed without sentence or after
sentences for a term of years[199]
-------+-------------------+-------------------+---------------------+-------------------+-------------------
| | | | Stage of in |
| | | | proceedings in | Method of
Current| | Facts in the | Proceedings | which execution | transmission of
number | Name | case | and execution | was carried out | orders to us
-------+-------------------+-------------------+---------------------+-------------------+-------------------
1 | Johann Heinen, | He was ordered to | No sentence. | |
| Dessau, | help in the | Reich Ministry of | |
| -g 10b 1634/39 g- | construction of | Justice was | |
| | an air raid | informed by a | |
| | shelter and | newspaper notice. | |
| | refused to do so | Shot on 7 | |
| | arguing that he | September 1939. | |
| | was a stateless | | |
| | person. | | |
| | | | |
2 | Paul Mueller, | Arson and | No sentence. | |
| Halle, | sabotage. | Reich Ministry of | |
| -g 10b 1634/39 g- | Details unknown. | Justice was | |
| | | informed by a | |
| | | newspaper notice. | |
| | | Shot on 15 | |
| | | September 1939. | |
| | | | |
3 | August Dickmann, | As a Jehovah’s | No sentence. | |
| Dislaken, | Witness he refused| Reich Ministry of | |
| -g 10b 1634/39 g- | to serve in the | Justice was | |
| | Army. | informed by a | |
| | | newspaper notice. | |
| | | Shot on 15 | |
| | | September 1939. | |
| | | | |
4 | Horst Schmidt, | Wearing the | No sentence. | |
| Kassel, | uniform of a navy | Reich Ministry | |
| -g 10b 1634/39 g- | officer he | was informed by a | |
| | pretended to be a | newspaper notice. | |
| | member of the | Shot on 6 | |
| | crew of a | November 1939. | |
| | victorious | | |
| | submarine | | |
| | and committed | | |
| | numerous frauds. | | |
| | | | |
5 | Israel Mondschein,| He committed | No sentence. | |
| Kassel, | rape using | Reich Ministry | |
| -g 10b 1634/39 g- | violence on a | was informed by a | |
| | German girl. | newspaper notice. | |
| | | Shot on 6 | |
| | | November 1939. | |
| | | | |
6 | a. Franz Broenne, | They assaulted an | No sentence. | |
7 | b. Anton Kropf, | SS guard and | Reich Ministry was| |
| prisoners in | knocked him down. | informed by a | |
| protective | | special delivery | |
| custody, | | letter of the | |
| Mauthausen | | Reich leader SS of| |
| -g 10b 140/39 g- | | 9 December 1939. | |
| | | Were hanged on 8 | |
| | | December 1939. | |
| | | | |
8 | Spressert, | Attempted indecent| No sentence. | |
| -III g 10b | assault on a | Reich Ministry of | |
| 1859/39 g- | half-Jewish girl, | Justice was | |
| | whose father was | informed by a | |
| | a Jew. | newspaper notice. | |
| | | | |
9 | Witte, | Refusal to work in| No sentence. | |
| -g 10b 1859/39 g- | a plant important | Reich Ministry of | |
| | to the war effort.| Justice was | |
| | | informed by a | |
| | | newspaper notice. | |
| | | | |
10 | a. Paul Latacz, | They attempted, on| By sentence of the | Shot on 14 October| No order was
11 | b. Erwin Jakobs, | 30 September 1939,| Berlin Special | 1939 by order of | transmitted to of
| Berlin, | to rob the Teltow | Court of | the Fuehrer. | the Reich Ministry
| -g 10b 1846/39 g- | county savings | 13 October 1939 | | Justice.
| | bank. | sentenced to | |
| | | 10 years | |
| | | penitentiary. | |
| | | | |
12 | Franz Potleschak, | He snatched away | By sentence of | Shot on 16 October| No transmission of
| Langwied, | a girl’s handbag | the Munich Special | 1939. | orders to the
| -g 10b 1743/39 g- | from her, on | Court of 6 October | | Reich Ministry of
| | 21 September 1939,| 1939 sentenced to | | Justice,
| | taking advantage | 10 years | | subsequent
| | of the black-out. | penitentiary in | | information by
| | | accordance with | | report of the
| | | paragraph 2 of the | | senior prosecutor,
| | | decree concerning | | Munich, and by
| | | public enemies. | | letter of the
| | | | | Reich Leader SS of
| | | | | 29 November 1939
| | | | | stating that the
| | | | | information had
| | | | | been omitted by
| | | | | mistake.
| | | | |
13 | Joachim Israel | He committed 6 | Sentence of the | Shot on | Letter from
| Joseph, | cases indecent | Berlin Special | 25 October 1939. | Bormann of
| Berlin-Spandau, | assaults on girls | Court of | | 25 October 1939 to
| -g 10b 1895/39 g- | under age, in the | 23 October 1939; | | the Reich Ministry
| | ages of 4–10 | for indecent | | of Justice stating
| | years. | assaults | | that by order of
| | | coinciding with | | the Fuehrer the
| | | race defilement, | | Jew was to be
| | | sentenced to | | handed over to the
| | | 6 years | | Secret State
| | | penitentiary. | | Police in order
| | | | | to be shot.
| | | | |
| | | | |
14 | Gustav Wolf, | He attacked a girl| By sentence of the | Shot on 1 or 2 | The order of the
| Naumburg, | in broad daylight | Criminal Court | December 1939 | Fuehrer (through
| -g 10b 1931/39 g- | and after having | Naumburg of | after sentencing. | the Reich Leader
| | repeatedly stabbed| 25 October 1939 | | SS) to the Reich
| | her with a knife, | he was sentenced | | Ministry of
| | he robbed her | to 10 years | | Justice was
| | wrist watch and | penitentiary for | | transmitted
| | attempted to | highway robbery; | | through
| | commit an | and attempted | | Oberreg.rat Werner
| | indecent assault. | rape. | | of the criminal
| | | | | police office, by
| | | | | telephone and
| | | | | letter on
| | | | | 1 December 1939,
| | | | | to the effect that
| | | | | the sentenced
| | | | | person was to be
| | | | | handed over to
| | | | | the Gestapo.
| | | | |
15 | Fritz Bremer, | He called on | By sentence of the | Shot on | The order of the
| Breslau, | family members of | Special Court at | 21 December 1939. | Fuehrer was
| -g 10a 5631/39 g- | soldiers fallen in| Breslau of | | transmitted
| | the Polish | 14 December 1939 | | by phone and
| | campaign and | he was sentenced | | letter on
| | stated he had been| to 15 years in | | 21 December 1939
| | informed by his | the penitentiary | | by Oberfuehrer
| | nephew serving on | in accordance with | | [Gruppenfuehrer]
| | the eastern front | paragraph 4 of the | | Schaub to senior
| | about the heroic | decree concerning | | public prosecutor,
| | death of the | public enemies. | | Joel.
| | relative | | |
| | concerned. He | | |
| | presented letters | | |
| | written by himself| | |
| | allegedly written | | |
| | by his nephew and | | |
| | finally had | | |
| | “travel expenses | | |
| | and other costs” | | |
| | refunded to him. | | |
| | | | |
16 | Max Gross, | On 13 November | By sentence of | Shot on 20 January| The order of
| Munich, | 1939 he took a | the Munich | 1940 after the | the Fuehrer was
| -g 14.177/40 g- | 3-year-old boy | criminal of | extraordinary | transmitted by
| | with him and when | 5 January 1940 | objection had | telephone by the
| | the latter was | he was sentenced | been submitted to | Gruppenfuehrer
| | reluctant, coerced| to 6 months in | the special | Schaub to the
| | him by slapping | prison for duress | division of the | senior public
| | and tried to | in coincidence | Supreme Court | prosecutor, Joel.
| | commit, as | with bodily | (Reichsgericht). | Later on confirmed
| | admitted by | injury. | (In this | by a letter of
| | himself, an | | connection, | Schaub to Joel.
| | indecent assault | | see remark 87). |
| | on him. The crime | | |
| | was prevented by | | |
| | the arrival of the| | |
| | mother. | | |
| | | | |
17 | Viktor Meyer, | He stole things | By sentence of | Shot on | Transmission by
| Berlin, | belonging to his | the Berlin Special | 30 January 1940. | telephone of the
| -g 14.225/40 g- | brother and to a | Court of | | Fuehrer’s order
| | businesswoman | 19 January 1940 | | by Schaub to
| | (repeated offense)| he was sentenced | | senior prosecutor
| | and knocked down | to 12 years in | | Joel. Later
| | and robbed a | the penitentiary | | confirmed by
| | prostitute. | for repeated theft | | letter.
| | | and for serious | |
| | | robbery in | |
| | | coincidence with | |
| | | bodily injury. | |
| | | | | |
18 | Alfred Gluth, | 7 cases of arson, | By sentence of | Shot on | No order received
| Marburg, | from February to | the Berlin Special | 18 November 1939. | by the Reich
| -g 5.4688/39 g- | September 1939; | Court of | | Ministry of
| | buildings, shacks,| 17 November 1939 | | Justice. The case
| | storehouses, and | he was sentenced | | became known from
| | supplies of | to 10 years in | | newspaper reports.
| | agricultural | the penitentiary | |
| | products. | [handwritten: | |
| | | prison?] | |
| | | for arson in | |
| | | coincidence with | |
| | | paragraph 1 of | |
| | | the decree | |
| | | concerning crimes | |
| | | committed by means | |
| | | of violence. | |
5. File Note of 6 March 1941 Submitted by Dr. Crohne to the
defendant Schlegelberger, concerning “Executions Planned and
Carried Out on the Basis of Dubious Information”
1. _Gluth case_--In the summer of 1939 the almost 18-year-old
locksmith apprentice Gluth set 4 fires in Marquardt near Potsdam in
order to disturb the population, and to show off afterwards as an
especially efficient member of the fire brigade. The medical expert
stated that Gluth was still in the age of puberty and that the state of
his development was equal to that of a 16½-year-old boy. In the opinion
of the experts his acts were caused by the physical and mental changes
connected with the age of puberty, and further by the awakening of the
desire to do important things, which is typical for this age. Sentence:
10 years’ imprisonment.
The Fuehrer ordered his execution. According to the statement of SS
Brigadefuehrer Mueller, the expert opinion was known to the Fuehrer,
but the latter stated that it would be foolish to save such persons,
who are a danger for society for further infamous actions. On 19
November 1939 Gluth was shot for offering resistance.
2. _Trampe case_--Trampe stole jewels and clothes from the
apartment of a friend, who was the wife of a soldier, and pawned these
articles for RM 200. He had access to the apartment in his capacity
of repair man. Afterward the soldier’s wife and her husband agreed
with Trampe on the damage. Trampe defended himself by stating that he
was by want compelled to steal, that he intended to redeem the stolen
objects later and that he was sure from the beginning that the couple
would forgive him afterward because of their friendship and because of
his distressed condition. The court accepted his statement as true and
sentenced him to 6 years of penitentiary. The press reported that his
defense was untruthful, and that it was not accepted as true by the
court.
Trampe was shot on 27 September 1940 by order of the Fuehrer. It is not
known here whether the shooting took place merely on account of the
incorrect reports of the press.
3. _Jackubetzki case_--The milker Jackubetzki had a savings
account in the Landeshaus in Breslau. These were the savings from his
wages. One day he came to Breslau without money and wanted to withdraw
his savings. Since the Landeshaus was already closed, he got the idea
of taking away the handbag from a woman walking in front of him in
order to get money for his trip home. He did that, and was sentenced to
10 years penitentiary.
Referring to a press report in the “Nachtausgabe” [Evening Edition]
(not in the file) the Fuehrer expressed, on 9 December 1940, by phone
through the SS Gruppenfuehrer Schaub his astonishment about the fact
that J. was not sentenced to death. In the “Nachtausgabe” the case was
misrepresented; it could not be seen from the article that the deed
concerned was prompted by the occasion.
On 26 February, Under Secretary Dr. Freisler conferred with SS
Gruppenfuehrer Schaub and related to him the details of the
perpetration, whereupon Schaub considers the case as settled.
4. _Kuhlmey case_--Kuhlmey in his capacity as an auditor knew a
number of manufacturers who were drafted into the army. He asked their
wives to authorize him to adjust their allowance cases. He cheated the
wives of 4 soldiers by giving them altogether about RM 375 less than
he had received at the public welfare office. He cheated the public
welfare office of about RM 3,000 by obtaining allowances on false
pretenses and without the knowledge of the woman concerned, and by
keeping the money for himself. Sentence: 5 years penitentiary. There
still are some minor cases to be sentenced.
On 14 October 1940, Schaub notified us by phone that the Fuehrer had
learned about the case through an article in the V.B. [Voelkischer
Beobachter] of 9 October 1940. If, in the still open cases the death
sentence should not be imposed, a transfer to the State Police will
be ordered. It cannot be seen from the report of the “Voelkischer
Beobachter,” under the headline, “Soldiers’ wives thoroughly cheated”
that K. caused detriment first of all to the welfare office and in
addition also to a few women. It contains some hints though that K.
also received subsidies which were not due to the women, but creates
the impression that the total amount of about RM 3,500 was withheld to
the detriment of soldiers’ wives.
[Handwritten note] Submitted to Under Secretary Dr.
Schlegelberger according to order. Case 1 does not belong here.
[Illegible initial] 6 March 1941
[Illegible initial] 6 March
7 March [Signed] DR. CROHNE
PARTIAL TRANSLATION OF DOCUMENT NG-369
PROSECUTION EXHIBIT 258
LETTER FROM PEOPLE’S COURT PRESIDENT, THIERACK, TO GUERTNER, 14 AUGUST
1940, RECOMMENDING TRANSFER TO CONCENTRATION CAMPS WITHOUT TRIAL OF
PERSONS FALLING WITHIN A “MINOR GUILT” CATEGORY OF HIGH TREASON
The President of the People’s Court
1400-I, Confidential!
To the Reich Minister of Justice
Berlin W 8
Wilhelmstr. 65
Berlin W 8, 14 August 1940
Bellevuestr. 15
[Stamp]
Reich Ministry of Justice
17 August 1940
Dept. III
Immediately after I was recalled from the war, I realized that things
were not as I had expected when plans for the People’s Court were
worked out. It was overloaded with trials and this because it had to
handle cases which it had certainly not been intended to judge. This
happened especially in cases which arose in the Protectorate of Bohemia
and Moravia because as yet there was no possibility of transferring the
cases to the courts of appeal. But even among cases which are ready for
such a transfer there are some which should not be dealt with by the
courts of appeal for various reasons.
However right it is to exterminate harshly and uproot all the seeds of
insurrection, as for example we see them in Bohemia and Moravia, it is
wrong for every follower [Mitlaeufer], even the smallest, to be given
the honor of appearing for trial and being judged for high treason
before a People’s Court or, failing that, before a court of appeal.
In order to deal with these small cases and even with the smallest,
the culprits should surely be shown that German sovereignty will not
put up with their behavior and that it will take action accordingly.
But that can also be done in a different manner, and I think in a more
advantageous one, than through the tedious and also very expensive and
ponderous channels of court procedure.
I have therefore no objection whatsoever if all the small and smallest
followers who are somehow connected with the high treason plans which
have been woven and plotted by others are brought to their senses by
being transferred to a _concentration camp_ for some time. This
would have the further advantage that dispositions would be taken
quickly and that they would be doubly effective because of that, and
that these dispositions could be rapidly modified if by the measures
taken the culprit were brought to a better attitude.
One can think, in addition to this, of the many cases of _article
90c of the Criminal_ (_Penal_) _Code_, in which, by inconsiderately
exploiting the strong position of the foreign state, persons who
had to cross the border for some reason or other (work, or visiting
relatives) were used to find out something about the neighboring state.
This occurred particularly frequently in the border areas which were at
that time Polish or Czech.
In any case, I consider it to be an _absolutely_ essential prerequisite
that all these cases should be submitted first of all to the Chief
Reich Public Prosecutor of the People’s Court for penal prosecution. If
he considers that _article 153, Code of Penal Procedure_ can be made
to apply, then the People’s Court will be able to give its consent to
this in nearly all cases. Then the accused would be put at the disposal
of the Security Police with the injunction that he be placed in a
concentration camp for a certain period of time.
I start from the principle that the conception of minor guilt in the
sense of article 153, Code of Penal Procedure is naturally not the same
in cases which are suitable for the People’s Court, as in those cases
in which the official judge has to decide. Even if this conception
is relative and depends on the nature of the offense, a _legal
extension of article 153, Code of Penal Procedure_ should surely be
made in order to presume insignificance of guilt for an act which can
be characterized as a crime, as, e.g., crimes in the nature of high
treason in the territory of Bohemia and Moravia.
[Signed] THIERACK
TRANSLATION OF DOCUMENT NG-540
PROSECUTION EXHIBIT 260
LETTER FROM MEISSNER[200] TO DEFENDANT SCHLEGELBERGER,
22 APRIL 1941, CONCERNING TRANSFER OF CONVICTED
PRISONERS TO THE GESTAPO
Berlin W 8, 22 April 1941
Voss-Strasse 4
The Minister of State
and Chief of the Presidential
Chancellery of the Fuehrer
and Reich Chancellor
RP 83/41 Secret
02/312
_Personal_
_Confidential_
Dear Herr Schlegelberger!
In the matter of the transfer of convicted prisoners to the Secret
State Police, Reich Leader Martin Bormann has meanwhile informed me by
order of the Fuehrer that the Fuehrer does not consider it necessary
to procure opinions from the Reich Ministry of Justice on sentences
which are submitted to him for reviewing. The question remained
unsettled of whether the Fuehrer wants to request the transmittal of
sentences himself or to hear your opinion in cases in which no sentence
is submitted. At present, however, I do not consider it expedient to
pursue the matter by sending another letter to Reich Leader Bormann. I
would, however, leave it to your discretion to inform me briefly and
with the utmost speed prior to the transfer of the prisoners to the
Secret State Police about the factual and legal situation of all those
cases in which you think that essential details for the evaluation of
the perpetrator’s character or of the crime have not been brought to
the Fuehrer’s attention. I shall then inform the Fuehrer of the details
I learn from you as far as the case requires this. The transfer of the
convicted prisoners to the Secret State Police may be postponed in
these cases for a short period until you hear from me again.
Heil Hitler!
Yours very truly
[Signed] DR. MEISSNER
To State Secretary Dr. Schlegelberger
Reich Ministry of Justice
Berlin W 8
Wilhelmstrasse 65
TRANSLATION OF DOCUMENT 648-PS
PROSECUTION EXHIBIT 264
DIRECTIVE ON BEHALF OF THE REICH MINISTER OF JUSTICE TO PUBLIC
PROSECUTORS, 22 OCTOBER 1942, CONCERNING THE “TRANSFER OF ASOCIAL
PRISONERS TO THE POLICE”
Reich Minister of Justice
IV a 1665/42 g.
Berlin W 8, 22 October 1942
Wilhelmstrasse 65
Tel. 11 00 44
Long Dist. 11 65 16
To the Attorneys General
For information [Stamp] _Secret_
A. Chief Reich Prosecutor at the People’s Court
B. Presidents of the District Courts of Appeal,
Graz
Innsbruck
Linz
Vienna
Subject: Transfer of asocial prisoners to the police
I. In agreement with the Reich Leader SS, the following group of
lawfully sentenced prisoners confined to penal institutions will be
transferred to the custody of the Reich Leader SS.[201]
1. Jews--men and women--detained under arrest, protective custody, or
in the workhouse.
2. Gypsies--men and women--detained under arrest, protective custody,
or in the workhouse.
3. Russians and Ukrainians residing in the Reich as non-refugees
(excluding Latvians, Esthonians, and Lithuanians) detained under
arrest, protective custody, or in the workhouse.
4. Poles residing in the former Polish state territory on 1 September
1939, men and women, sentenced to penal camps or subsequently turned
over for penal execution, if sentence is over 3 years, or includes
subsequent protective custody, (including Kriegstaeter [perpetrators of
crimes during war time] and persons in protective custody).
5. Men _only_, in protective custody (except those sentenced
by Austrian Law to workhouse according to sec. 1, par. 2,
Reichsgesetzblatt, No. 165, dated 10 June 1932).
6. Convicts sentenced to subsequent protective custody--men _only_
(including Kriegstaeter). Excepted from this transfer are--
_a._ Those sentenced by an armed forces court and by an SS and
police court.
_b._ Prisoners of war.
_c._ Those sentenced by Dutch courts.
_d._ Those sentenced by former Yugoslav courts.
_e._ Foreigners, not coming under groups 1–4. People from the
Protectorate and stateless persons are considered natives.
Until further notice, the transfer is to be postponed for--
_a._ Those sentenced by former Polish courts or by the present
courts of the Government General. Poles, sentenced by former Polish
courts in the Occupied Eastern Territories can however be transferred.
_b._ Germans sentenced by German courts in the Occupied Eastern
Territories, in the Government General, in Holland, in Norway, Alsace,
Lorraine or Luxembourg.
_c._ Those sentenced by the courts of Alsace, Lorraine, and
Luxembourg.
_d._ Nationals of the Protectorate.
Those in protective custody and in the penitentiary with subsequent
protective custody are to be selected for special screening by the
[department] concerned, Department XV of the Reich Ministry of Justice,
and, therefore, are also not to be transferred immediately if the
institution is convinced that release from protective custody would
enter into the question within a predictable time. On account of their
favorable development during the execution of punishment (not merely
because of old age or similar reasons). Those who are sentenced to
additional protective custody upon completion of punishment for high
treason and sedition are generally to be selected for this special
screening. Department XV of the Reich Ministry of Justice will decide
which of the prisoners who are not to be transferred according to this
shall be excepted permanently from the transfer.
The director of the institution is personally responsible for the
selection of prisoners to be transferred.
If doubt arises in individual cases whether the transfer shall be made,
the decision of the Reich Ministry of Justice has to be requested.
The same applies if a prisoner who is considered for transfer is
still needed as a witness, etc., in other proceedings or in cases of
additional sentence by a court.
II. The decisive day fixed for lawful sentence is 1 November 1942.
Only prisoners lawfully sentenced before 1 November are liable for
transfer. Further directives concerning arrest, confinement in special
institutions, and so forth, of those legally convicted later, are
reserved.
III. Sick prisoners are not exempted from transfer, they are to be
transferred as soon as they are transportable. Final decision on insane
prisoners is reserved, transfer at the present is postponed.
IV. In preparation for transfer of prisoners belonging to groups I,
1–6, excluding cases of postponement, lists bearing name and current
number of each prisoner, separate for each group, and 1–4 for men and
women, are to be executed by the institutions. Four copies have to be
sent directly from the institution to the Reich Ministry of Justice
for the attention of President of the Senate _Hecker_. The first
lists are to be executed according to the status existing on 1 November
of this year. Supplementary lists, compare II, also, on the status at
1 December of this year and 1 January 1943, and are to be submitted up
to the 8th day of the month in question. Institutions having over 100
prisoners for transfer, submit partial lists for 100–200 prisoners,
whenever completed.
The lists must be divided as follows:
1. Number of list.
2. Surname and Christian name.
3. Date of birth (day, month, and year).
4. Place of birth.
5. Last residence.
6. Nationality.
7. Institution number.
8. Sentence or measure of security and improvement.
9. _a._ Acting court.
_b._ Executing authority and its reference number.
10. Start and completion of sentence--in case of ex-servicemen,
note that term has not yet started.
11. Offense--main offense only.
12. Able to work--yes, no.
V. Prisoners not yet consigned to the proper institution, or
temporarily consigned to other institutions, will be specified by the
competent institution, to which they are to be delivered as soon as
possible.
VI. Slowdown of production in vital armament factories, is to be
avoided during transfer of prisoners. Therefore, the transfer has to
be effected gradually with distribution over several months, as deemed
necessary by the individual institutions, in consideration of the
factories. At the same time, the institutions most affected are already
filled up because of changes in the execution plans. The number of
prisoners and the time of transfer for the different districts, will be
announced here from time to time.
VII. With completion of the transfer to the police, the penal term is
considered interrupted. Transfer to the police is to be reported to
the penal authority, and in cases of custody to the superior executive
authority, with the information that the interruption of the penal
term has been ordered by the Reich Ministry of Justice.
VIII. Preparatory to examinations of all male penitentiary prisoners,
sentenced to terms over 8 years, the directors of institutions
concerned received verbal instructions at the Reich Ministry of
Justice. These instructions are valid correspondingly for persons
in protective custody and penitentiary prisoners with additional
protective custody, whose transfer has been postponed until examination
of case by department XV of the Reich Ministry of Justice (compare I,
par. (4)).
IX. The information of this statute is to be given exclusively to
such directors of institutions, for whom its knowledge is an absolute
necessity in consideration of the incarcerated prisoners. The number of
these directors is to be kept as small as possible, by concentration of
the prisoners concerned, in some cases in agreement with the adjacent
districts. Concerning convicts with a sentence of more than 8 years,
such concentration has already been ordered from here.
X. I request that special care be taken for the apprehension of all
prisoners, including those not delivered to the competent institution,
or those transferred to other institutions for industrial reasons.
BY ORDER:
[Typed signature] Dr. Crohne
Certified: [Signed] KIRSTEN
As Administrative Assistant
[Ministerialkanzleiobersekretaer]
[Seal]
Reich Ministry of Justice
Office of the Ministry
TRANSLATION OF DOCUMENT 701-PS
PROSECUTION EXHIBIT 268
DIRECTIVE OF 1 APRIL 1943, ON BEHALF OF THE REICH MINISTER OF JUSTICE
ANNOUNCING THAT POLES AND JEWS RELEASED FROM PRISONS PURSUANT TO A
DECISION OF THE REICH SECURITY MAIN OFFICE, ARE TO BE TRANSFERRED TO
CONCENTRATION CAMPS
The Reich Minister of Justice
4410 _b_ Vs _1_ 379/43g
Berlin W 8, 1 April 1943
Wilhelmstrasse 65
To the Public Prosecutors of the Courts of Appeal,
To the Commissioner of the Reich Minister of Justice for the
penal camps in Emsland Papenburg, Emsland
Subject: Poles and Jews who are released from the penal institutions of
the department of Justice[202]
Additional copies for the independent penal institutions.
I. With reference to the new guiding principles for the application of
article 1, section 2 of the decree of 11 June 1940 (Reichsgesetzblatt
I, p. 877), enclosure I of the decree of 27 January 1943-9133/2,
enclosure I-III a_2_ 2629, the Reich Security Main Office has
directed by the decree of 11 March 1943, II A 2 number 100/43--176--
_a._ Jews who, in accordance with number VI of the instructions
are released from a penal institution, are to be committed by the
State Police (Regional) Office competent for the district in which
the penal institution is located, for the rest of their lives to
the concentration camps Auschwitz or Lublin, in accordance with the
regulations for protective custody that have been issued.
The same applies for Jews who in the future are released from a penal
institution after serving a sentence of confinement.
_b._ Poles, who in accordance with number VI of the instructions
are released from a penal institution, are to be taken by the State
Police (Regional) Office competent for the district in which the penal
institution is located, for the duration of the war to a concentration
camp in accordance with the regulations on protective custody that have
been issued.
The same applies in the future to Poles, who after serving a term of
imprisonment of more than 6 months, are to be discharged by a penal
institution.
Conforming to the request of the Reich Security Main Office, I ask
that in the future, (a) all Jews to be discharged, (b) all Poles to
be discharged, who have served a sentence of more than 6 months be
designated for further confinement to the State Police (Regional)
Office competent for the district and are to be placed promptly at its
disposal, before the end of sentence for conveyance.
II. This ruling replaces the hitherto ordered return of all Polish
prisoners undergoing imprisonment in the Old Reich condemned in
Incorporated Eastern Territories. The decree of 28 July 1942-4410
_b_ Vs _1_ 1731, has lost its validity. Imprisonment up to 6
months imposed within the Incorporated Eastern Territories, excluding
exceptions, is to be carried out in these territories, and not in the
Old Reich.
BY ORDER:
[Typed] Dr. Eichler
Certified: [Signed] FREYER
[Seal] Clerk
Reich Ministry of Justice
Office of the Ministry
EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER CONCERNING
TRANSFERS OF PERSONS TO THE POLICE[203]
_DIRECT EXAMINATION_
* * * * * * *
DR. KUBUSCHOK (counsel for defendant Schlegelberger): I should like
to refer to another complex of questions. Witness, in the course of
this trial you have often heard that persons against whom prosecution
was pending or who had already been sentenced were turned over to the
police. How did these transfers to the police come about?
DEFENDANT SCHLEGELBERGER: These transfers are a very sad
chapter for anybody who has a sense of justice. They came shortly
after the beginning of the war in 1939. From publications in the press
Guertner found out that the police had killed people. Guertner made
notations about these notices in the press, had them filed and gave a
compilation of these notices through Lammers to Hitler together with
his compiled notes, and he explained the situation in detail. The
purpose was clear. Hitler should be made to discontinue these things.
Lammers actually submitted these compilations to Hitler, but told
Guertner later that Hitler had said that he had not given a general
directive to carry out these shootings but in individual cases he
could not do without these measures, because the courts, that is,
military courts as well as the civil courts, were not able to take
care of the special conditions created by the war. At the same time
Lammers announced that Hitler in a further case had already ordered the
execution by shooting.
Q. I refer to Document NG-190, Prosecution Exhibit 284.[204]
A. I am certainly not making a mistake in saying that that decision
on the part of Hitler was probably the most serious thing which ever
happened to this man Guertner, whose main intention was to serve
justice. It was an order which Hitler had given through administrative
channels to the police, and the execution of it was assured on the
basis of the means of power then prevailing. The attempt on the part
of Guertner to reinstate the respect for court decisions therefore
had failed; but he was not satisfied with that. He wanted to insure
that the administration of justice should be given the authority to
intervene in time and to attempt at least to thwart the execution of
the order given to the police. That, of course, was only possible if
the administration of justice was informed in time about the order that
had been given to the police, and that request by Guertner was actually
granted. Subsequently the administration of justice as a rule was
informed by Hitler’s adjutant, Schaub, wherever an order of that kind
was given to the police.
The question, therefore, as to how after one has been informed, one can
make an attempt to prevent the execution of Hitler’s order involved
great difficulties particularly because the police had a time limit of
24 hours after which it had to report to its superiors that the order
had been executed. Guertner then was of the opinion that for these
matters he had to assign the one official in his ministry whom he could
use as a capable man with the police--who shared Guertner’s opinion
in these matters--and from whom one could expect, on the basis of
previous experience, that he would show sufficient cleverness. Guertner
therefore charged my codefendant Joel with that mission.
When the information about such an order was received, feverish work
started. First one had to try to extend the police time limit; that is,
to persuade the police to delay the report. That alone brought great
difficulties, because the police official incurred considerable risk.
But in some individual cases it succeeded. At the same time, the files
of the case were called to Berlin and all other bits of information
which probably had caused Hitler to order the transfer of the person
concerned to the police. Then a detailed report was made of the act
and the culprit which justified the sentence, and telephone calls took
place with various agencies whenever that seemed to have chances for
success. Some individual cases were successful. But if it could not be
achieved that the order turning over the individual to the police was
rescinded, although everything had been tried, then there was no other
alternative than to issue a directive to the authority which was about
to carry it out, telling them that they should no longer resist but
should turn over the man to the police.
If the Reich Ministry of Justice had failed to give the man up, the
police would have broken the resistance by force; the condemned person
could not be saved. During the war, civilian and military command
offices in numerous cases were seriously charged with the fact that
through a defense which they had to consider as useless, they had
sacrificed many lives. Such a useless sacrifice it would have been if
the Reich Ministry of Justice had instructed the prison authorities,
via the executive office, to resist the police. The subject of this
sacrifice would have been not only threats to officials or civil
servants, but to the entire administration of justice, which would have
been eliminated and its opponents would have triumphed. The acting
official in the ministry would have been eliminated as a saboteur; and
already at that time he would have been replaced by a person who would
willingly and without exception have put the administration of justice
in the service of the Party. The individual cases of transfer which
the prosecution has described have to be evaluated from these points
of view. I myself, after taking charge of the Ministry of Justice,
immediately established contact with Minister Meissner in order to
determine basically that no order for transfer made by the police was
to be executed as long as the administration of justice did not have a
report. This intention of mine was again foiled by Bormann. A letter
from Meissner to me makes this apparent. Hitler had me informed by
Bormann that the obtaining of the opinion of the Ministry of Justice
was not necessary. Meissner, who shared my opinion, asked me in spite
of that, in those cases where the ministry believed that Hitler was not
properly informed, that a report should be sent to Meissner. I did that
in all cases.
* * * * * * *
Q. What do you have to say about the Markus Luftglas case, a case of
transfer to the Gestapo, Document NG-287, Prosecution Exhibit 88?[205]
A. This case, too, I no longer remember even though the name recalls
certain memories. In my statements I have to refer to the documents
that have been submitted, and by referring to them I would like to
determine the following: the Fuehrer order to the police was given to
the Reich Ministry of Justice on 24 October 1941, through the usual
channels by the Presidential Chancellery. That nothing happened in this
case is absolutely impossible. It would have been inexplicable why my
letter to Lammers in which I informed him of the release was written
only 4 days later, on the 29th, for letters of that kind were answered
immediately in our office as a matter of course. The fact that our
letter is dated only the 29th shows me rather that in the meantime
unsuccessful interventions had taken place.
Now I notice that in this letter to Lammers I informed him that
Luftglas had been transferred to the police for the purpose of
execution. That is noticeable because the information about the orders
given by the police never said anything about executions, but merely
stated “transfer” as the subject of the order. If in this letter to
Lammers, I therefore informed him that Luftglas was transferred for
the purpose of execution, this can only be based on the information we
received from the police, and I am quite sure that I formulated the
letter in that way in order to inform Lammers how the direct Fuehrer
order--that is, the order to the police--was actually worded and in
order to point out to him the effects of such transfer orders.
In conclusion, in regard to this question of transfer I would like to
say that the Hitler order went to the police through administrative
channels. The police had legally and by authority the possibility
to execute the order. The Ministry, on the other hand, had only one
weapon, and that was the word. If this weapon remained without success,
the Ministry was defenseless and had to submit to force.
* * * * * * *
C. Measures to Influence or Avoid the Judicial Process
1. DEVELOPMENTS PRINCIPALLY DURING THE PERIOD WHEN GUERTNER WAS
REICH MINISTER OF JUSTICE (1933–JANUARY 1941)
a. Example of relations of officials of the Reich Ministry of
Justice, judges, and public prosecutors with officials of the
Nazi Party, the Gestapo, the SD, the SS, and the SA
TRANSLATION OF KLEMM DOCUMENT 20
KLEMM DEFENSE EXHIBIT 20
LETTERS FROM GUERTNER, REICH MINISTER OF JUSTICE, TO HITLER’S DEPUTY
RUDOLF HESS AND TO THE SA CHIEF OF STAFF, VIKTOR LUTZE, 5 JUNE 1935,
CONCERNING INTERFERENCE IN THE TRIAL OF CAMP HOHENSTEIN PERSONNEL
1. Letter from Guertner to Hess
Copy
The Reich Minister of Justice Berlin, 5 June 1935
Z.F.g^{10} 1696.34
Letter to the Deputy of the Fuehrer Reich Minister Hess
Secret!
Personal!
Subject: Criminal proceedings against the merchant and SA
Obersturmbannfuehrer Jaehnichen and 22 party members
for causing bodily injury in the performance of
their official duties (protective custody camp
Hohenstein/Saxony)
Dear Colleague!
With reference to the indictment which I submitted on 20 March 1935 in
the above-mentioned criminal case I wish to state the following:
On 3 May 1935, after a trial lasting approximately 6 weeks, the
prosecutor, and public prosecutor, Dr. Walther, proposed the following
sentences:
Against--
Jaehnichen (camp commander), 5 years, penitentiary.
Zikera, 1 year 6 months imprisonment.
Heinz Meier, 3 years imprisonment.
Herbert Meier, 3 years 2 months imprisonment.
Tuerke, 3 years imprisonment.
Volkmar, 2 years 3 months, penitentiary.
Leuschner, 2 years 3 months imprisonment.
Romkopf, 2 years 6 months imprisonment.
Karche, 1 year 8 months imprisonment.
Hausch, 1 year 4 months imprisonment.
Lehmann, 3 years 3 months imprisonment.
Kuehnel, 1 year imprisonment.
Stachowski, 1 year imprisonment.
Ude, 1 year imprisonment.
Friedrich, 1 year 3 months imprisonment.
Schmeling (police), 1 year imprisonment.
Konitz, 1 year imprisonment.
Uhlmann, 1 year imprisonment.
Sturzkober, 10 months imprisonment.
Schupp, 1 year 6 months imprisonment.
Hensel, 2 years 3 months imprisonment.
Heinicker, 1 year 6 months imprisonment.
Putzler, 3 years 9 months, penitentiary.
Liebscher, 7 months imprisonment.
Heeger, quashed by reason of the amnesty.
On 15 May 1935 the 12th Great Criminal Panel of the District Court [12.
grosse Strafkammer des Landgerichts] in Dresden pronounced sentence
according to which the following were sentenced for violation of
Article 340[206] of the Criminal (Penal) Code:
Jaehnichen to 6 years imprisonment.
Zikera to 1 year 6 months imprisonment.
Heinz Meier to 3 years imprisonment.
Herbert Meier to 3 years imprisonment.
Tuerke to 3 years imprisonment.
Volkmar to 2 years 3 months imprisonment.
Leuschner to 2 years 6 months imprisonment.
Romkopf to 2 years 6 months imprisonment.
Karche to 1 year 8 months imprisonment.
Hausch to 1 year 4 months imprisonment.
Lehmann to 3 years imprisonment.
Kuehnel to 1 year imprisonment.
Stachowski to 1 year 6 months imprisonment.
Ude to 1 year imprisonment.
Friedrich to 1 year 3 months imprisonment.
Schmeling to 1 year imprisonment.
Konitz to 1 year imprisonment.
Uhlmann to 1 year imprisonment.
Sturzkober to 1 year 10 months imprisonment.
Schupp to 1 year 6 months imprisonment.
Hensel to 2 years imprisonment.
Heinicker to 1 year 6 months imprisonment.
Putzler to 3 years 9 months imprisonment.
The proceedings against Liebscher and Heger were quashed by virtue of
the law concerning exemption from punishment [Straffreiheitsgesetz].
After the sentences had been proposed, but before they had been
actually pronounced, the president of the 12th Great Criminal Panel
received the following communication from the Reich Governor in Saxony:
Office seal
The Reich Governor in Saxony
II 84/35
Dresden--A, 1. on 8 May 1935
Post Office Box: 78
Telephone: 24 371
To the President of the District Court, Dr. Roth
Dresden--A.
Pillnitzer Strasse 41
Dear President:
I have been informed that a sentence of 3½ years penitentiary has
been proposed for the defendant Standartenfuehrer Jaehnichen. Without
wishing to interfere in the proceedings nor wanting to influence you
as judge in any way, I should like to point out to you again before
the passing of the sentence that the circumstances created by the
revolution in 1933, which--no doubt--were still affecting conditions at
the beginning of 1934 should not be disregarded when passing sentence.
Another point which seems to me worthy of consideration is the fact
that one cannot accuse Jaehnichen of a villainous disposition and,
above all, that the scum of the earth were to be guarded in Hohenstein.
In view of these facts I leave it to you to examine whether the
offenses actually demand a punishment of such great severity or whether
an acquittal might be considered.
As Gauleiter I consider it my duty to point once more to the
exceptional circumstances.
Heil Hitler!
[Signed] MARTIN MUTSCHMANN.
Furthermore news was received here that the two lay judges who acted
as judges during the trial, Regierungsamtmann Helbig and the merchant
Pesler, were expelled from the NSDAP after the sentence had been
pronounced. I do not know who was responsible for this expulsion.
Finally, the prosecutor, Public Prosecutor Dr. Walther, an SA man, was
approached by his Obersturmfuehrer after the sentence had been passed,
suggesting that he withdraw from the SA.
The fact that these measures coincided with the passing of judgment
suggests some internal connection. This, however, would mean that
very dubious and most unwelcome consequences have resulted from
the proceedings which were legally perfectly correct. If, from the
communication of the Reich governor, which is reproduced above, the
receiver was apt to gain the impression that here his decision as a
judge was being influenced by high quarters, the same might be said,
only to a larger degree of the measures taken against the two lay
judges. Such action as was taken against lay judges after the verdict
was returned, would naturally leave them under the impression that
they are responsible before a certain authority for all their actions,
carried out in their line of duty while acting as judges. This would
destroy judicial independence, a factor which until now had been
considered the basis of an orderly administration of justice. Apart
from that the lay judge who when commencing his duties is made to take
an oath that he will vote to the best of his knowledge and belief will
in this way be subjected to great inner conflicts. The consequences
resulting from such measures against the prosecutor would be no less
serious. This official also would be faced by great conflicts in the
performance of his duty. Thereby the orderly unbiased work of the legal
authorities would be endangered to such an extent that I would feel
it my duty to examine, whether under these circumstances it is at all
possible for public prosecutors and judges to be party officials or
members of the SA.
It therefore seems necessary--
1. That in the above case the perplexity caused by these
measures should be removed by some suitable countermeasures, and
2. That provisions be made to avoid the renewal of such
occurrences which are incompatible with the administration
of justice and therefore with the security of legal right
guaranteed by the State.
I beg to let me have your opinion concerning this matter and to inform
me of the measures taken over there. In view of the importance of the
case I should welcome a speedy settlement.
Heil Hitler!
[typed] signed: DR. GUERTNER
2. Letter to the Chief of Staff of the SA of the NSDAP with the copy
of the indictment attached
insert page 1 Secret!
Enclosure: 1 separate document Personal!
Dear Chief of Staff:
In the above-mentioned criminal case, where severe ill-treatment of
prisoners in protective custody at the Hohenstein/Saxony internment
camp is the subject of the indictment, the trial took place before
the 12th Great Criminal Panel of the District Court in Dresden
between 20 March and the middle of May 1935. Regarding the details
of the incidents on which proceedings were based, I beg to refer
to the enclosed copy of the indictment, dated 25 October 1934, and
particularly to page 21 of the result of the inquiry.
On 3 May 1935 the prosecutor, Public Prosecutor, Dr. Walther, proposed
the following sentences:
insert page 1 and 2 up to
News was received here that the prosecutor, Public Prosecutor Dr.
Walther, an SA man, had been approached by his Obersturmfuehrer after
the sentence had been passed, suggesting that he withdraw from the
SA. The fact that this measure coincided with the passing of judgment
suggests that there might be some internal connection between the two.
This, however, would represent a very dubious and most unwelcome result
of the procedure, which was legally perfectly correct. As a result of
such measures the officials would be faced by the greatest of conflicts
in the performance of their official duty. This would endanger the
orderly unbiased work of the legal authorities to such a degree that
I consider it my duty to examine whether under these circumstances it
is at all possible for public prosecutors and judges to be also party
officials or members of the SA.
It appears therefore necessary--
1. That in the above case the perplexity caused by these
measures should be ended by some suitable countermeasures, and
2. That provisions be made to avoid the renewal of such
occurrences which are incompatible with the administration
of justice and therefore with the security of legal rights
guaranteed by the State.
May I ask you to let me have your opinion regarding this matter and to
inform me of the measures taken over there. In view of the importance
of the case I should welcome a speedy settlement.
Heil Hitler!
[typed] signed: DR. GUERTNER
3. To the Minister, secret
4. 2 weeks
TRANSLATION OF DOCUMENT NG-323
PROSECUTION EXHIBIT 32
LETTER FROM THE REICH MINISTRY OF JUSTICE TO PUBLIC PROSECUTORS, 10
MARCH 1937, CONCERNING COLLABORATION BETWEEN PUBLIC PROSECUTORS AND THE
GESTAPO AND ENCLOSING A CIRCULAR DECREE OF HIMMLER ON THE SAME SUBJECT
D.RM.d.J.
[The Reich Minister of Justice]
4606--IIa^3 146/248
Berlin, 10 March 1937
Metallblatt [offset printing]
To the
Chief Public Prosecutor
at the Kammergericht[207] and
to the Chief Public Prosecutors
at the Courts of Appeal
(with------* copies for the Public Prosecutors)
[Handwritten]* insert figures from distribution plan below.
[Stamp] received at office 11 March 1937
[illegible handwritten notes]
[Handwritten] according to distr. plan forwarded 17 March 1937
Concern: Collaboration between the office of the public
prosecutor and the Gestapo.
[Handwritten] (Copy Circular letter Reich Leader SS of 18 March 1937)
1 Enclosure forwarded 17 March 1937
For your information I forward the enclosed copy of a circular decree
of the Reich Leader SS and Chief of the German Police in the Reich
Ministry of the Interior of 18 February 1937.[208]
In order to have this decree fulfill its purpose and in the interest
of the closest possible collaboration between the office of the
public prosecutor and the authorities of the Gestapo, I hereby issue
this supplementary order that in future public prosecutors routinely
address all requests for investigations to be conducted on the basis
of reports of political nature received by them directly, to the
local and district police authorities _via the competent State
police offices_. When in cases based on such reports the necessary
interrogations of the accused or the witnesses are procured by the
court itself or by the expert of the prosecution, and the police
authorities are not at all involved in the proceedings, I request
that State police offices be informed of the proceedings as soon as
possible. If, because of the urgency of a matter, the transfer of files
is deemed inadvisable, the State police office is to be informed when
the proceedings are instituted and if the occasion warrants, a copy of
the indictment is to be submitted.
The enclosed circular decree was issued with my approval; but I also
made it known that I expect this interpolation of the competent State
police offices not to cause any great delay in the forwarding of the
proceedings to the public prosecutor, and that the State police offices
are merely transit agencies during this part of the proceedings. They
will be exclusively concerned with information on the proceedings and
not with the decision about the necessity of further inquiries or
perhaps even the question as to whether proceedings are to be turned
over to the public prosecutor at all.
With these aspects in mind, I request that the effects of this circular
decree for the police be carefully noted, and that I be informed in the
event of any considerable delays.
BY ORDER:
[Signature] CROHNE
10 March
[Handwritten]
Distributed [Signed] ECK 19/3
1(a) copies of circular decrees distributed to all Dept. Chiefs
and assistants.
1(b) copy with enclosure to Depts.
3262, 4026, 4007/1 taken care of [Initial] E. 19/3
2. resubmit
(notice to Reich Leader SS)
to 2: Submitted
Gsta [signed] ECK 19/3
[Initials] KLE [Klemm]
9 March
Draft
Dept. IIa^3 323/37
Copy of circular decree to Reich Leader SS, for information
2. Request for copy of circ. decree.
E 22/3
3. Illegible
[Initial] KLE [Klemm] 22/3
[Illegible initials] 20/3
_Plan for distribution_
Bamberg 7 Kassel 3
Berlin 8 Kiehl 3
Braunschweig 1 Koeln 7
Breslau 16 Koenigsberg 7
Celle 11 Marienwerder 3
Darmstadt 3 Muenchen 10
Dresden 7 Naumburg 10
Duesseldorf 6 Nuernberg 7
Frankfurt 4 Oldenburg 1
Hamburg 3 Rostock 4
Hamm 9 Stettin 5
Jena 11 Stuttgart 8
Karlsruhe 9 Zweibruecken 4
__ __
95 72
TOTAL 167
[Signed] BEHRENS, 11 March
_Political dept. chiefs_ _Political assistants_[209]
* * * * * * *
[Handwritten:]
A few surplus copies are available. Distribution completed.
Gsta [Initial] E. [ECK], 8 May
to 4606--IIIa^3----248
Berlin, 18 February 1937
The Reich Leader SS and Chief of the German Police in the Reich
Ministry of the Interior
S V 1 No. 341/36
To:
a. The Gestapo Office in Berlin,
for forwarding to all Regional State Police
Offices and
State Police Offices
b. for information of:
State Governments in Prussia:
to the Regierungspraesidenten
Concerning: The forwarding of Gestapo affairs to the
office of the public prosecutor.
It is the Gestapo’s task, _to investigate and to combat all
seditious movements_, and to collect and evaluate evidence of such
investigation. These tasks can only be accomplished by the State police
offices, if all political police-affairs dealt with by the local and
district police authorities within their district are submitted to them
promptly. As auxiliary organs of the Gestapo, it is the duty of the
local and district police authorities to do so.
Thus, _all matters in the affairs of the Gestapo are on principle to
be submitted to the office of the public prosecutor via the competent
State police office_. In urgent matters of arrest, records may be
submitted directly to the office of the public prosecutor after
notifying the State police office previously by telephone. In such a
case, a copy of the interrogation record is to be forwarded at once to
the State police office.
The Reich Minister of Justice will instruct the office of the public
prosecutor to direct the requests for investigations of reports of
political nature, received directly by him, to local and district
police authorities via the competent State police office.
_It is the responsibility of the State police offices to speedily
evaluate the proceedings channeled through their offices and to forward
them without delay._
BY ORDER:
[typed] signed: DR. BEST
[Stamp] The Reich Leader SS and Chief of the German Police
in the Reich Ministry of the Interior
Certified:
[Illegible signature]
Assistant
to IIIa^3----248/37
PARTIAL TRANSLATION OF KLEMM DOCUMENT 33
KLEMM DEFENSE EXHIBIT 33
PARTY CHANCELLERY INSTRUCTIONS TO PARTY OFFICIALS, 31 AUGUST 1937 AND 9
FEBRUARY 1938, CONCERNING THE EXCLUSIVE CONCERN OF JUDICIAL AUTHORITIES
IN PROSECUTING PUNISHABLE OFFENSES AND PROCEDURES WHERE PARTY MEMBERS
MAY HAVE COMMITTED THEM[210]
_Administration of Penal Law_
Imposing of Fines by Party Offices
A. 108/37
31 August 1937
For special reasons, I draw your attention to the fact that the
prosecution of punishable offenses is exclusively the concern of the
judicial authorities.[211] All cases, where persons have committed a
punishable offense, must be turned over or reported to the appropriate
authorities.
It is not admissible that sentences, especially fines, are imposed
on punishable persons by offices of the NSDAP or its affiliated
organizations. Party members disregarding this warning, who demand from
the person who has committed an offense e.g., the payment of a fine,
possibly with an additional hint that this would settle the affair,
will run the risk of a criminal prosecution.
* * * * * * *
A. 15/38
9 February 1938
_The question of prosecuting or not prosecuting punishable offenses
committed by Party members, is exclusively a matter of decision by the
public prosecutor’s office or by the Reich Minister of Justice._
It has been noted, that Party offices have frequently approached
the regional State police office or other State police offices
with the request not to prosecute punishable offenses committed by
Party members, or not to submit their investigations to the public
prosecutor’s office. Since the officials of the Secret State Police
are at the same time assistant officials of the public prosecutor’s
office, and as such are obliged to prosecute all punishable offenses
without respect to the person of the offender and without any
special invitation from the public prosecutor’s office, unpleasant
discrepancies would result if such wishes were satisfied. Nobody but
the public prosecutor’s office or the Reich Minister of Justice can
decide whether or not a punishable offense shall be prosecuted. The
public prosecutor’s office therefore has always the opportunity to make
investigations of its own, concerning incidents which, by the Party’s
request are not prosecuted any longer by the Gestapo, or to have
investigations made by the police authorities or by the constabulary,
which would not exactly be in the interest of the Party. In the future,
the lawful duty of the Secret State Police to prosecute all punishable
offenses must be respected, and all cases of doubt with regard to such
prosecution have to be reported directly to the appropriate Chief
Public Prosecutor through the appropriate Gauleiter, or to the Reich
Minister of Justice through the chief of the Party Chancellery, the aim
being to accomplish an administration of criminal prosecution which
will comply with the interests of the Party.
However, this procedure must be adopted sparingly since the same, and
under certain circumstances more severe, principles will be applied to
Party members as to non-Party members.
TRANSLATION OF SCHLEGELBERGER DOCUMENT 34
SCHLEGELBERGER DEFENSE EXHIBIT 92
LETTER FROM THE CHIEF OF THE FUEHRER’S NAZI PARTY CHANCELLERY TO
DEFENDANT SCHLEGELBERGER, 30 JANUARY 1938, STATING THAT HITLER HAS
DIRECTED THAT SCHLEGELBERGER BE ACCORDED MEMBERSHIP IN THE NAZI PARTY
Berlin W 8
Vosstrasse l
30 January 1938
The Chief of the Chancellery of the Fuehrer of the NSDAP
To Under Secretary Dr. Schlegelberger
Berlin
Dear Mr. Under Secretary,
The Fuehrer has directed [verfuegt], on the occasion of the 5th
anniversary of the National Socialist rise to power, that you be
accorded membership in the NSDAP.
I take pleasure in bringing this to your attention while requesting
that you submit to me your personal data such as your first name, last
name, place and date of birth, and correct address.
Heil Hitler!
[Signed] BOUHLER
PARTIAL TRANSLATION OF DOCUMENT NG-901
PROSECUTION EXHIBIT 436
TWO ORDERS SIGNED BY DEFENDANT SCHLEGELBERGER FOR THE INITIATION OF
CRIMINAL PROCEEDINGS AGAINST NOTARIES BECAUSE OF THEIR ATTITUDE TOWARD
THE NATIONAL SOCIALIST STATE, 19 MAY 1938 AND 6 DECEMBER 1938
_Copy_
_Order for the Initiation of Criminal Proceedings_
In accordance with article 38, paragraph 3 of the Reich Notary’s Code,
and article 71, paragraph 2, German Civil Service Law, I initiate an
inquiry against notary Karl Walbaum of Goettingen.
Notary Walbaum can no longer be relied upon to lend his active support
to the National Socialist State at all times. This suspicion is proved
by his general attitude, for instance--
(1) The notary joined the German National People’s Party [DNVP] towards
the end of 1932 in order to help in preventing the National Socialist
German Workers’ Party from taking over exclusive State leadership.
(2) In 1933 he was expelled from the Stahlhelm,[212] because he worked
openly against the affiliation of the Stahlhelm to the National
Socialist State.
(3) He did not adopt the German Salute in Court until fall 1937, and
in the streets he fails to use it even today. On the occasion of his
interrogation by the president of the district court on 13 April 1938,
he referred to the German salute as the ancient salute given by German
gladiators to the Roman emperor.
(4) He is opposed to the existence of the National Socialist Party and
its union with the National Socialist State, and he expressed this
attitude not only in a letter to the Kreisleiter of Goettingen, dated
11 April 1938, but also during his interrogation on 12 April at the
branch office of the Secret State Police, and on 13 April 1938 by the
president of the district court.
(5) In the plebiscite and general election on 10 April 1938 he voted
“No.” I appoint District Court Judge Weissgerber of Goettingen head of
the inquiry.
Berlin, 19 May 1938
The Reich Minister of Justice
As deputy
[typed] signed: DR. SCHLEGELBERGER
* * * * * * *
_Carbon copy_
_Order for the Initiation of Criminal Proceedings_
By request of the deputy of the Fuehrer[213] I initiate an inquiry
against notary Dr. Kurt Prelle of Naumburg (Saale) in accordance with
article 38, paragraph 3 of the Notary’s Code; article 71 of the German
Civil Service Law and with the Executive Decree to article 71 of the
German Civil Service Law.
It has become doubtful whether notary Dr. Prelle can still be relied
upon to lend his active support to the National Socialist State at all
times. These doubts are based on the following occurrence:
Since 1 August 1932, Dr. Prelle had been a member of the National
Socialist German Workers’ Party, Membership No. 1 255 200. In the
course of a Party court proceedings he was accused of having made a
purchase from the Jew Max Cohn in Naumburg (Saale) on 24 December 1935.
On 18 February 1936, during the proceedings he submitted a questionable
justification in which he explained that not he himself but his wife
without his knowledge had bought picture postcards from the Jew Cohn
for a total of 10 Reichspfennig. He continued, however, to explain
that in view of the speech made on 18 August 1935 by the president of
the Reich Bank, Dr. Schacht, and in view of the fact that the Reich
government was using Jewish banks for raising Reich loans, every State
citizen was entitled to buy as much as he wanted from Jews. As a result
of this, Dr. Prelle was expelled from the Party by a decision of the
Party’s Kreis Court at Naumburg (Saale) dated 30 June 1936, because he
had not made the Party’s fight against Jewry his concern and did not
even support it.
The right to commission someone with the establishment of these facts
is being reserved.
Berlin, 6 December 1938
The Reich Minister of Justice
As deputy
[typed] Signed DR. SCHLEGELBERGER
(Seal)
TRANSLATION OF DOCUMENT NG-825
PROSECUTION EXHIBIT 433
REPORT ON A CONFERENCE, 22 AUGUST 1939, BETWEEN DEFENDANT ROTHENBERGER
AND SS MAJOR ECKHARDT, SD CHIEF IN HAMBURG, CONCERNING COOPERATION OF
THE JUDICIARY WITH THE SD IN HAMBURG
Conversation between Senator Dr. Rothenberger, SS Sturmbannfuehrer
Eckhardt, SD Subsection Hamburg and SS Oberschar [Oberscharfuehrer],
Amtsgerichtsrat Moeller.
Subject: Cooperation of the Administration of Justice in Hamburg
with the SD Subsection Hamburg
1. There prevails agreement that it would be purposeless to appoint
special informants in the various branches of the administration of
justice to inform the Liaison Officer, Amtsgerichtsrat Moeller. The
already existing circle of informants, to which Moeller should from
now on belong, is abundantly sufficient to inform the senior president
[of the court of appeal] about wishes and difficulties, views on the
reaction to new laws, moods of the judges, etc. If from this circle
things are brought forward which cannot be settled directly by the
senior president, Sturmbannfuehrer Eckhardt is prepared to put his SD
apparatus at their disposal on instructions from Moeller.
2. Senator Dr. Rothenberger expressed the wish to be able to fall back
on the information apparatus of the SD in necessary cases, e. g., to
ascertain whether there is any truth in rumors which by repetition have
become the subject of a criminal procedure. Sturmbannfuehrer Eckhardt
consents to this.
3. Senator Dr. Rothenberger declares that he is prepared to put at the
disposal of the SD subsection current copies of such sentences as are
significant on account of their importance for the carrying-out of
National Socialist ideas in the field of the administration of justice,
and which are being collected in the appellate court. Sturmbannfuehrer
Eckhardt considers a current transmission of important judicial
sentences in this way to be particularly valuable for the work of the
SD.
4. Sturmbannfuehrer Eckhardt requests that employees of the judicial
authorities be reminded before they travel abroad to keep their
eyes open in foreign countries and to record their experiences and
impressions in a report on foreign opinion. Senator Dr. Rothenberger
points out that he has been kept informed up to now as to essentials,
of one employee’s impressions on journeys abroad. In future, each
employee of the judicial authorities is to make a report on foreign
opinion at the close of his journey, a carbon copy of which will be
forwarded to the SD subsection for information.
5. Up to now, informants who are at the disposal of the SD have not
been nominated for the local court districts Harburg and Wandsbeck.
Senator Dr. Rothenberger wants to seek out suitable individuals and to
nominate them to the SD subsection.
For the rest, the parties concerned are in agreement that cooperation,
with the wide consideration for the importance of the sphere of work on
both sides, is best guaranteed by any debatable questions being dealt
with directly by the liaison officer Moeller, either in writing or
orally.
Hamburg, 22 August 1939.
EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS
FRIEDRICH ELKAR[214]
MR. KING: Will you please state your name?
WITNESS ELKAR: Elkar.
Q. Will you tell us briefly what your educational background and
training has been?
A. I was born in July 1911 in Altenberg. Then, for 14 years I went
to elementary school, and I went to the Oberrealschule, Fuerth, and
there in the year 1931 I made my final examination. Then I studied for
four terms each at the Universities of Erlangen and Munich. In the
year 1935 I made the first state examination, the so-called Referendar
Examination. Then for about 3 years I was at the Nuernberg-Fuerth
court as a legal clerk in the administration for training. Then, in
July 1939, I made the second state examination, that is, the assessor
examination, at Munich. Thereafter, for a short time, I worked for a
Nuernberg lawyer. Then, due to wartime conditions, I was unemployed
for a while. In October I was taken into the Security Service at
Nuernberg. That was on 16 October 1939. I was there at the SD during
the entire war. In 1945 after the collapse I worked for some time as an
agricultural worker.
Q. After you had passed your first state examination and prior to the
time that you had taken your second examination were you at any time
assigned, while you were in Nuernberg, to the defendant Rothaug?
A. Yes, first I had two cases when I was appointed defense counsel
before the Special Court, and that is where I met Rothaug. And then for
2 months I was there for my legal training. That was at the end of my
legal training period in February or March 1939.
Q. You said that in October of 1939 you became a member of the SD.
A. Yes, on 16 October 1939.
Q. Before I put several questions to you concerning your activities
with the SD, will you explain briefly the relationship between the SD,
(Security Service) of the Reich Security Main Office (RSHA) and the SS?
A. Relations between the Reich Security Main Office and the SS--well,
the Security Service, SD, belonged to Office III of the Reich Security
Main Office. That was the central office of the SD at Berlin. A large
number of the employees of the SD, had been taken into the General SS.
To that extent a rather loose connection existed between the SS and
the SD. In particular, the Supreme Chief of the Reich Security Main
Office was first Heydrich and after his death, Kaltenbrunner, whereas
the chief of the SD who was under Heydrich and Kaltenbrunner was
Ohlendorf.[215] Is that sufficient?
Q. Tell me how the SD was organized at Gau level?
A. At Gau level principally every Gau had an SD department. That,
according to the Gau level, was the SD sector, and the extent of this
SD sector was usually the same as that of the Gau.
Q. How were these SD organizations which were attached to each Gau
organized? Were there departments in each SD organization within each
Gau, and if so, what were these departments?
A. In the SD districts there were departments [Referate], as we called
them. Essentially there were four--III was the designation of the SD
office in general; III-A, law and administration; III-B, folkdom and
public health; III-C, cultural fields, including education; and III-D,
economy.
Q. When you were assigned to the Gau here in Nuernberg for the SD, to
which one of these four departments were you assigned?
A. I was assigned to the department of law and administration.
Q. And what was your position in that department?
A. I was in charge of it. That is to say, for quite some time there was
only one man in it, really. There was only one person.
Q. Can you tell me in general--I will later ask you some specific
questions, but now tell me in general what your duties were as head of
law and administration of the SD in the Franconia Gau.
A. The SD as home information service, in our case through the
Reich Security Main Office had to inform about all developments in
various fields of German life. I personally had to report about
all developments in the field of law and administration, positive
and negative developments which occurred in that field of law and
administration, to investigate and to report about them.
Q. Being assigned to the law and administration section, did you confer
with the defendant Rothaug in connection with your official duties?
A. Yes. On the basis of an instruction received from the inspector
of the Security Police and SD at Munich who was our administrative
superior, from an instruction through him we had to take up in
connection with the prosecution of the Special Courts in order to
inform the inspector, and in the last event, the Reich Security Main
Office, about the pending criminal cases, that is to say, the activity
of the Special Courts. In the course of this action, it came to a
conference of my chief with the president of the court of appeal, and
in the course of that conference Doebig, the president of the court of
appeal, stated that he was not competent for any agreement that had to
be passed here, because as the Public Prosecutor, the prosecution was
under his control. For that reason on the same day, practically at the
same hour, a conference was brought about with the General Prosecutor
Dr. Bens. On that occasion, the presiding judge of the Special Court,
Rothaug, was present. Bens justified that by saying that the first
hand information about pending criminal cases before the Special Court
could best be obtained from the presiding judge himself, because it
was he who was in charge of scheduling the cases and therefore could
give the best information, and for that reason Rothaug was drawn into
that conference. The oral agreement came about to the effect that from
time to time if my superior office was interested, I should get the
appropriate information from Rothaug.
Q. In connection with this series of conferences, when did you first
see Rothaug?
A. Well, the conference in question you mean?
Q. No. As I understood the answer to the previous question, after you
had seen Doebig and Bens, you were finally told that you would confer
in connection with your official duties with Rothaug. When then did you
have your first conference with Rothaug concerning your official duties?
A. The first short conference took place immediately after that
conference with Bens and Doebig on the same day in Rothaug’s office. On
that occasion, Rothaug stated that he was quite ready to work together
with the SD, as far as information was concerned.
Q. And thereafter, did you see him at regular intervals, and if so, how
often did you see him?
A. At that time, an agreement was reached between Rothaug and myself
that principally I should come into his office every Saturday, and
there he would inform me about matters which in his opinion were
interesting for me--criminal cases--and give me all the information. On
that occasion, we were also able to discuss any other legal questions
of interest that actually came up; and particularly during the first
half year I met Rothaug pretty regularly on Saturdays.
Q. Now after these Saturday conferences with Rothaug, did you make a
report to your superiors on what was said?
A. I sent reports to the Reich Security Main Office about everything in
the way of information which I received from Rothaug.
Q. And these reports which you sent to the Reich Security Main Office
went first to your superior located in Nuernberg, and then, as far as
you know, to Berlin and possibly to the head of the SS? Is that right?
A. It really occurred that way, that whatever Rothaug considered
important he reported himself. I took stenographic notes, and I had
them transcribed at my office, and on the basis of this information, I
wrote my report to Berlin--of course without any opinion on my part and
without making essential changes which would not have been within my
duties.
Q. In these conferences with Rothaug, which occurred fairly regularly
every Saturday morning, can you tell the Court in general what was
discussed? Later on, I want to ask you several specific questions, but
now, if you will, please tell us in general what Rothaug discussed on
these occasions with you?
A. Mostly the information which he gave me was in a form of
instructions about developments of criminality which he explained with
examples of individual cases. He informed me, for instance, that mail
robberies or black-out crimes were increasing and that they constituted
most of the criminal cases at that time. Then he explained to me in
what manner criminal procedure had to be developed in order to present
effective measures against that undesirable development of criminality
and to manifest that in the way of jurisdiction. On that occasion, of
course, individual cases were also discussed. In addition to that, he
also mentioned matters of legal and political development; also in the
field of substantive law, matters which came to his attention in the
course of these proceedings, sometimes in the form of short dictation
or of handwritten slips which he prepared. It was not only that the
current cases were explained to show the development in criminality but
also anything that occurred in the field of law and had to be corrected
by higher offices, be it that it needed a negative or positive decision
that he wanted to have written down and reported to higher offices.
Q. Rothaug knew, I take it, that these notes and reports which he
handed to you were passed on by you in line with your official
duty--passed on to higher authorities in the Reich Security Main Office
and in the SS?
A. That he knew for certain, and in my opinion that was what he wanted.
It could be seen from remarks to the effect that such matters had
to be reported to higher offices so that from these higher offices
appropriate countermeasures could be taken.
Q. Did Rothaug discuss in these conferences with you the sentences he
expected to give in cases that were to be heard in his court in the
near future?
A. Yes, the proceedings in the next period of time which were to be
tried sooner or later, as far as they were important, were discussed
partly on the basis of the files, partly on the basis of his knowledge
of the files; he gave me a short explanation of the facts and also his
opinion about the legal procedure, the legal dealing with the cases as
far as the application of the facts was concerned in consideration of
the sentence to be expected.
Q. What in general was Rothaug’s attitude, so far as he reported it to
you, on the interpretation of criminal law?
A. Rothaug, in principle, was of the opinion that particularly in times
of war on account of a certain laxity of security measures, be it due
to shortage of personnel or other things, criminality would increase;
that not only an increase of serious criminal cases would occur, but
also of so-called political criminality; and that the activity of the
Special Courts should be conducted in such a manner that an increase
of serious criminality of that kind should be forestalled; that any
attempt against the State in a political, criminal, or other manner
would have to be wiped out by severe penalties.
Q. Can you tell us what Rothaug’s apparent attitude was toward
foreigners, especially Poles, so far as the application of criminal law
to them was concerned?
A. In my opinion, Rothaug’s position was that particularly toward
foreigners--Poles and others--that no clemency should be applied; that
especially these elements had to be met with severe measures in order
to assure that attempts which would be made to counteract the successes
of the armed forces should be choked off at the outset. It may be that
he would have used more clemency towards German criminals than to
foreigners.
Q. Can you tell us whether you are familiar with the decree against
Poles and Jews promulgated in 1941?[216]
A. Yes, that is a concept for me.
Q. You are in general familiar with the provisions of this decree, are
you not?
A. Well, in detail--of course today I couldn’t say--but in general, yes.
Q. What was Rothaug’s attitude toward Poles and Jews prior to the
time that this decree was promulgated so far as you know from the
conversations that you had with him and from the reports that you
passed on from him?
A. I believe that it was clear to Rothaug that here, if I may say so,
there was a gap in the law; that that gap should be bridged; but that
a judge with the right political attitude should be in a position, in
spite of this gap, to sentence accordingly. He found the juridical way
to pronounce the sentences which he considered appropriate.
Q. In other words, would you say that Rothaug achieved, without a
decree, and prior to the time that it was promulgated, the same legal
effect that later could be achieved under it?
A. That is correct, beyond doubt. As a Special Court judge in
Nuernberg, he achieved the same success. I should only think that
perhaps measured by conditions all throughout the Reich, he thought
that a formulation of these principles was needed.
Q. Is it your feeling that Rothaug’s outspoken comments on the need for
such a decree, as was later formulated, was influential in the final
promulgation of that decree?
A. Well, as far as the various things are concerned that finally led
to the decree, I am not well informed about that; but that Rothaug’s
information may have contributed, that I believe.
Q. In any event, prior to the time that that decree was formulated in
1941, you had sent up in line with your official duty many of Rothaug’s
comments on what the law, or what the situation lacked at that time?
A. That was certainly the case.
Q. In discussing the cases with Rothaug in these Saturday morning
conferences, do you recall any particular case to which Rothaug
referred?
A. You mean in a particular category of a criminal act?
Q. No, I do not refer to that. Perhaps my question was not clear. I
meant in spectacular cases which were to be tried by Rothaug, or other
judges in his court. In other words, did you discuss, or did he discuss
with you the more spectacular cases at any time?
A. Yes, he did. I remember, for instance, the case of the Dachau
criminal, I think it was Poelmann.
Q. One moment. I did not get that name.
A. Poelmann. That man Poelmann, if I remember correctly, had taken
a large quantity of lard from a barn in Fuerth, I believe at night.
There may have been several hundred pounds and also other things. If
I remember correctly, Poelmann was sentenced to death by Rothaug. The
verdict I believe was not executed, but through a pardon was commuted
into a long prison term, I think 8 years of hard labor. Rothaug talked
to me at that time about that pardon, which technically reduced the
death sentence, which in Rothaug’s opinion was a correct sentence, to a
prison term.
Q. Do you remember any other cases that you discussed with Rothaug?
A. Yes, one typical case, the case of Katzenberger. That case Rothaug
and I discussed also once, and I expressed my opinion that on the basis
of information I had received, and also on the basis of opinion on what
was known of the criminal, that the sexual relationship was not an
accomplished fact, because the law, insofar as I knew, required the act
of sexual relation between a German and a party of non-Aryan descent.
DR. KOESSL: May it please the Tribunal, I object against the
examination. I object to the examination in this manner, because the
opinion which is stated by the witness, the legal opinion which is
stated by the witness shows that he is not an expert, and furthermore,
he has not been called as an expert witness.
PRESIDING JUDGE MARSHALL: We see nothing in the answer in
the nature of which shows anything other than he was just stating a
conversation, the way we get it.
WITNESS ELKAR: I do not in any way wish to give an expert
opinion here. I only wanted to explain why I came to speak about the
case of Katzenberger, because I was asked whether he spoke of any other
case, and particularly this case is one which was mentioned as the
case of Katzenberger. Therefore, may I continue with my statement? At
the time the facts were not complete, because it was not proved so far
as I know that the German woman was doing anything more, according to
the proof, other than that she was sitting on his lap, and Rothaug--I
remember that quite clearly here--said that one had to take the human
facts into consideration and could hardly expect that a man of that
kind, he meant the man Katzenberger, would act otherwise once the girl
had been sitting on his lap, and that consequently, he considered the
proof as given.
MR. KING: Now may I for a brief moment digress to another
subject. In your position with the SD you undoubtedly had an
opportunity to observe the political influence that various people with
whom you came in contact exercised?
A. Yes.
Q. What do you know about Rothaug’s influence with the Party men who
ran the Gau Franconia. What are your impressions?
A. Rothaug had some close connections to the Gau Inspector Haberkern.
Haberkern as Gau Inspector could gain an insight in all matters going
on in the Gau, and in my opinion for a discussion of such matters,
particularly in the legal field, he took the advice of Rothaug, so
that, since the Gauleiter depended on Haberkern, Rothaug certainly
could have his opinion go to the Gauleiter on legal matters.
Q. What men besides Haberkern were influential in directing the affairs
of the Gau Franconia?
A. Well, first, Streicher was Gauleiter. After he left, there were
several staff office chiefs who were acting, and then Holz became
acting Gauleiter. Then Holz went to the army, and at that time the
Kreisleiter Zimmermann was in charge of the official business of the
Gauleiter and as far as I know, the relationship between Zimmermann,
Haberkern, and Rothaug was very close.
Q. May I at this point ask you to clarify one matter. You say that
Streicher, Haberkern, Holz, and Zimmermann, as leaders of the Gau,
were, of necessity, members of the Party Leadership Corps?
A. Yes.
Q. Now in your opinion from what you were able to observe, did
Haberkern’s reliance on Rothaug, and Rothaug’s influence over him
result in Rothaug having a very great influence on the Party Leadership
Corps here in the Franconia Gau?
A. Insofar as Haberkern could indulge in the influence as to the
Leadership Corps, Rothaug through Haberkern had the same influence, and
I should like to assume that in the question of law Rothaug certainly
was the man who was the higher authority so far as the Gau was
concerned.
Q. Do you know whether Rothaug had ever taken an oath of secrecy as a
collaborator with the SD?
A. Yes, he did.
Q. Do you know when that happened?
A. That must have been in 1940, because in May 1940, approximately in
the spring of 1940, that is before the French campaign, the conference
of prosecutors which I had mentioned took place, and I believe a short
time afterward Rothaug was drafted for the SD and was put on oath by
the SD.
Q. What was the higher, more responsible position in the SD, the
position of informer [Nachrichtenmann], or the position of collaborator
[Mitarbeiter]?
A. May I correct that? There were no official informers. You mean the
confidential agent [Vertrauensmann]? Then there was also the term of
honorary collaborator [ehrenamtlicher Mitarbeiter]. The confidential
agent was the man who in a certain field of law, penal law or the
administration of justice, occasionally was used for information that
had to be kept secret. On account of the shortage of men, which existed
during the war, it had become necessary to bring in also honorary staff
members [ehrenamtliche Maenner] who had certain functions, and who in a
definite special field, also had the function of rendering information;
the informative material which had come from other places was digested
by them and put together in reports. All such people in the special
field, that is the field of penal law, were a source of information.
The honorary collaborator I would like to put on a higher level than
the confidential agent.
Q. I think I did use the wrong term in referring to the confidential
agent as informer, but in any event, you understood my question, and I
think I understand your answer.
Did you ever attend a trial which was presided over by Rothaug?
A. Yes.
Q. From your observation, can you tell us briefly how Rothaug conducted
his trials?
A. Once it was the case Heller and Muendel, well known highway
trap-setters [Autofallensteller]. Then the case Feldstengel. There were
several others. These were cases of burglary during the black-outs,
black-out crimes.
May I pick out here the principal matters such as they presented
themselves to me after my experiences as an SD man. I think I am
not mistaken in assuming that Rothaug considered the trial before
the Special Court as a means of direction and education and that
accordingly he conducted the main trial on a broad basis and facts
which constituted transgressions against the program of the Party,
the directives of the political leadership, such facts were developed
to such an extent that the illegal elements which were contained in
the opposition against the political leadership were brought to the
foreground. I would like to say that he rather disregarded other
circumstances concerning the defendant, his office, his position. He
wanted to remove those circumstances, to leave them aside, in order
to develop clearly the criminality of the act of the defendant, and
just because he considered the trial as a means for the direction and
education of the people, he used every means to make it possible for as
many people as possible to attend and underline matters which offered
possibilities for the political education in order to exert influence
on the listeners in that manner.
Q. In your conferences with Rothaug did he express the view that trials
were to be used as a means of political education?
A. Yes, of course.
Q. From your observation of Rothaug’s conduct of trials where he was
the presiding judge, your answer is that in practice they actually were
conducted that way, as a means of political education; that was the
purport of the answer to the next to the last question, I believe.
A. Yes, that was my personal impression, which I gathered from the
comparatively few trials which I attended myself and also from
information on the basis of the material about the trials. From those
reports, it could be seen that Rothaug had the intention to use the
many trials as a means for political education.[217]
* * * * * * *
_CROSS-EXAMINATION_
DR. KOESSL (counsel for defendant Rothaug): Witness, your
position was that of chief of a department?
WITNESS ELKAR: No, in an Abschnitt. May I point out that there
was no such expression as Abteilung; there were special departments,
Referate.
Q. So it was Referat III-A?
A. Referat III-A.
Q. Referat III-A was part of the home forces?
A. Yes.
Q. Your work with Rothaug was based on general directives, on the basis
of which the SD groups had to get in contact with the Special Courts;
is that correct?
A. The real cause for the contact with Rothaug as presiding judge of
the Special Court was, as I explained yesterday, the desire of the
inspector of the Security Police and the SD in Munich to be informed
about the decisions of the Special Courts, or to remain currently
informed about their decisions, because the inspector of the Security
Police and the SD in Munich was, at the same time, supposed to send
reports to the Reich defense commissar who, at that time, was in
Munich, but whose field was all of Bavaria. A measure of that kind was
of a local nature, at first only for Bavaria, an internal instruction,
let us say, from the RSHA, because a contact of that kind did not exist
at that time.
Q. But it was a contact which was taken up all over Bavaria?
A. Yes.
* * * * * * *
Q. Do you still know what the purpose of the visit of the SD leaders
with Doebig and Bens was and what considerations, what principal
considerations were discussed on that occasion?
A. As I have already explained, subject at first on the occasion
of that official contact, taking up of contact, was that from an
authoritative source the reports should be received about pending
criminal cases, and of course also about legal problems in connection
therewith. The SD through all its reports from the outside, received
information about the consequences of court decisions on morale. It is
clear to us today that the layman’s point of view frequently deviates
quite essentially from the facts established in court. And in order
to provide a correction, a possibility of checking our reports, it
was necessary that we establish the official connection to the court
authorities.
Q. Therefore, it was intended that this contact should correct mistakes
in the reports received from other sources, which mistakes were based
on reports from laymen and frequently caused misunderstandings of the
facts?
A. That is essentially true.
Q. Now, you discussed at first the conferences. You came to Rothaug
first on Saturday mornings in order to get information?
A. Yes.
Q. Did you stick to that in the course of the following period, or were
there larger intervals between these meetings?
A. If I should indicate a period first--
Q. I asked only, was that regularly on Saturdays?
A. In the beginning yes, the first half year.
Q. And later?
A. Later, either if an inquiry had been sent to us from some other
source or when, on the basis of reports which we had received from
other sources we had questions to put before him, or when Rothaug on
his part had to report anything on the basis of his activity, and
I emphasized yesterday that he was very productive for us, that in
the field of political law, not only in the field of general law,
but beyond that and also in the field of civil law, he brought to us
experiences and inspirations.
Q. If I understand you correctly, Rothaug dealt with matters of
principle of a general nature not, for instance, the treatment of
individual cases, the manner in which individual cases were handled.
A. You have to distinguish here between the--you have to start here
from the assignment which the SD had as information sources for
the whole country. As I emphasized yesterday, the purpose was to
eliminate wrong developments first, to point them out. In case of
these developments in the wrong direction it could only be matters
of principle in the beginning. According to the instructions we had
received, it did not suffice to point out a principal wrong, that is
to say a gap in the law, but it was necessary that on the basis of
concrete examples of definite individual examples that gap be proved,
and if possible at the same time in this case, of course, by the
expert, recommendations had to be made for modifications. And on the
basis of this activity individual cases were the subject of discussions
and conferences. Frequently, as far as I remember, it occurred that at
times the individual case itself was discussed as, for instance, the
case of Katzenberger and another case which I still remember.
Q. So it was a matter of justifying opinions if individual cases were
mentioned?
A. Yes.
Q. It was not a matter of interfering into an individual case on the
part of superior offices, an interference into a pending, into an
actual proceeding?
A. Well, of course it was possible that the individual case itself,
through the leadership office, became known to the Ministry and caused
individual measures. I can give you an example. In the directives
concerning files there is a provision according to which wills
are to be attached to the files of the court. Furthermore, there
is some directive of some sort according to which last letters of
soldiers who have been killed could be considered, under certain
circumstances, as having the force of a “last will.” That was
particularly customary in the air force, that, in case a flier died,
these letters were considered, and if there were any provisions in
these letters concerning the heritage, and there was no other proof
of any will existing, they were considered to represent the will. That
happened, for instance, in one case. There was a soldier by name of
Schneiderbanger. The woman who had lost her husband in the First World
War, and I believe already one son in this war, lost her last son. It
was in air combat over London, I believe. She presented to the court
the letter in which some provisions were included about his luggage, I
believe. The court considered that letter to represent his will, and
asked for the original from the woman--asked that the original be put
in the files. Since for sentimental reasons she objected to that, she
was threatened with a fine or a prison term. That affair raised a lot
of discussion. Various offices of the Party intervened, and it came
before us. I reported that case. In the opinion of the RSHA it was
not a rare case, but a development which would have to be taken into
account either by law or by directive from the Ministry. It was strange
that in this case the reaction of the Ministry of Justice was not the
issuance of a general instruction, but an order through channels that
the woman in this particular case be permitted to keep the letter.
PRESIDING JUDGE MARSHALL: One moment, please. The witness
answered, some little time ago, that these reports to the RSHA and the
answers from them were for the purposes of justifying the opinions of
the lower court. At that point, Dr. Koessl asked the question whether
it was intended as an interference of those opinions. I couldn’t
observe that the witness answered that question, and I should like
to know whether it was an interference and not merely an attempt to
justify.
WITNESS ELKAR: In as much as we discussed these cases at our
level, one could not speak of interference in the individual cases. How
far the RSHA, through conferences with the various ministries--in this
case, the Ministry of Justice--could interfere, I am not in a position
to estimate.
Q. I am not so much concerned as to how much they could do, but I am
very much interested in knowing what they did do, if anything, in the
matter of interference.
A. Well, of course we reported with the intention that a wrong
development in individual cases should find correction occasionally,
but I am not so familiar with that in the legal field. We received
instructions from superior offices that in this one or the other case a
measure from the Ministry or the respective superior office was caused
by the report.
DR. KOESSL: Wasn’t it so that at that time the fact had
become apparent and noticed that offices which were outside the
administration of justice were frequently concerned with matters of
justice; for instance, offices of the NSDAP, Kreisleiters, and so on?
WITNESS ELKAR: Yes.
Q. Were the conferences also concerned with the attempt of preventing
such interference?
A. I can hardly remember that when speaking to Rothaug that problem
was ever discussed to any extent. Occasionally, when mention was made
from the outside, that question was touched too; but if I remember
correctly, Rothaug was of the position that the Party, for instance,
was definitely justified to make its intentions known to the court; he
said in the same manner which, for instance, the administration of mail
service--in case of a fraud on the part of one of the officials--gives
its expert opinion about the case, then in the same manner that right
should be conceded to the Party. For that reason, he offered at all
times information to the Party and gave also advance information about
pending cases and an opportunity to state its--the Party’s--point of
view.
Q. That was originated by law, if I remember correctly, Witness. Wasn’t
it provided that in penal cases against members of the Party, on the
basis of a legal decision, the Party had to be informed?
A. Yes, that of course.
Q. That is what I mean. Was there more involved?
A. For instance, in cases of insidious attacks[218], a directive by the
Ministry of Justice was required. That directive, as far as I know,
came about in cooperation with the Party Chancellery.[219] It is true
that the Party Chancellery, certainly before it rendered its decision,
received information from the Gauleitung concerned with that case. But
I believe that I am not mistaken to assume that Rothaug, even beyond
that in local cases of political significance, tried to get the opinion
of the Gauleitung concerned.
Q. You told us yesterday that you discussed pending cases on the
points of view of the general development of criminality. Was that the
basis of your conferences on Saturdays and later on at more frequent
occasions?
A. Perhaps I can make the answer a little clearer by emphasizing the
circumstances under which this more intense cooperation with the
Special Court under Rothaug, in particular, came about. The conference
between Doebig and the others was concerned with the official
agreement, as I have said. The position and the tasks of the SD are
known to you. I assume that the SD was in a position to obtain these
official informations and opinions from the official sources, but we
had to try to find out about the matters which were, for instance, in
the more detailed files--matters about which information cannot be
obtained through regular channels--or to find out about matters which
went beyond the pattern of an official opinion about a penal case; that
is to say, as we have explained before, a particular experience or an
opinion about another court. The obtaining of that information could
only be the case if as an SD man I had a closer connection to Rothaug
beyond the official character of my mission. And Rothaug, after that
first official conference with Doebig--in a conference between himself
and myself--stated that he was prepared to do so.
Q. Did you take up contact with other officials of the administration
of justice in your position at that time?
A. Here again I have to deal with the administrative organization. As
you have heard yesterday, the Abschnitt, after the SD Main Office, was
the next lower echelon. It was not our task as such in all fields,
let’s say of law and of administration, to obtain and to collect
material of information. That task remained to the so-called field
offices. I believe we had five in Nuernberg. These field offices as far
as I am informed had their confidential agents again; and that there
were legal men--members of the court--among those, is quite known. As
far as my mission was concerned, that is to say, in order to appraise
and evaluate the material which came from the field offices, I needed
of course a qualified person, an expert, who had a wider field of
experience; and for that purpose I needed Rothaug. He agreed, and he
also had the right attitude.
Q. Yesterday you spoke about the slackening of the security machinery
during the war. Could you remember that preventive measures against
danger arising through conditions of war was part of the discussions
and conferences with Rothaug?
A. You mean measures to be taken by leadership offices?
Q. In order to prevent possibilities of dangers arising from special
conditions, arising from emergencies of war.
A. Of course.
* * * * * * *
Q. Witness, I want to go over to another point. What concrete reasons
do you have for judging what influence Rothaug had on Haberkern in
regard to the leadership of the Gau; what influence was exerted through
Haberkern on the Gau leadership?
A. I know that Rothaug was at the Hotel Haberkern, at the so-called
Stammtisch [club table], that he was seen there frequently; I know,
furthermore, partly from having been present there myself, in the
“Blaue Traube” restaurant [Hotel Haberkern] that other leading men
of the Gau were also present there. For example, the Kreisleiter
Zimmermann occasionally; also the Higher SS Police Leader Dr. Martin
and several other people; and I know furthermore that, at this
Stammtisch, matters concerning the Gau were discussed. I can further
say with quite a good deal of certainty that Haberkern, especially in
legal questions, based himself on the advice and actions of Rothaug,
since Haberkern, as I believe I emphasized already yesterday, as Gau
Inspector, at any time could have insight into any matters which were
of interest to the Gau and what was going on inside the Gau; he could,
of course, on the basis of this insight inform the competent Gauleiter.
Q. Did the Gau not have a definite office for handling legal questions?
A. Yes, the Gau had a legal office, the Gaurechtsamt.
Q. Was Rothaug in charge of this office?
A. No. Rothaug was in the National Socialist Legal Workers Association
[NSRB] the head of which in Gau Franconia, at times was also the head
of Gaurechtsamt, namely Oeschey. In the NSRB, Rothaug had the position
of a Gau group leader of the [group] judges and prosecutors; you know
that the NSRB was composed of [several] groups.
As Gau group leader of [group] judges and prosecutors, Rothaug was in
the Gau Franconia, the judge, the leading jurist, politically; who also
from the political point of view, especially the personnel policies
of the Party had the primary influence on it--the most important
influence, that is, on the Gau leadership. The Gau leader depended a
great deal on its own initiative or due to the questions by the Party
Chancellery, who had to advise and give opinions on certain personnel
policies, questions of personnel policy. The Gau leader and the
Gaurechtsamtleiter had to find out Rothaug’s attitude.
Q. But, Witness, is it not evident already from the fact that the Gau
leadership had to turn to Rothaug via the Gaurechtsamtleiter that
the Gaurechtsamtleiter was the decisive man, the advisor of the Gau
leadership?
A. One should suppose that from the outside, just from looking at the
organization, but actually I should suppose--I think I can say that
with certainty, that the Spiritus Rector, shall we say the guiding and
thinking spirit even under the leadership of Oeschey, was Rothaug.
Q. Now, did you have an insight into the attitude of Rothaug with his
associates from the political point of view?
A. Do you mean the association on the Special Courts?
Q. Yes.
A. In order to do so it is necessary--
Q. Please, did you have an insight or not?
A. Yes.
MR. KING: May I ask if the witness wants to expand his answer
or not. I think the witness should be permitted to if he so wishes.
What is the ruling of the Court on that?
PRESIDING JUDGE MARSHALL: Yes, he may answer it further if his
answer requires an explanation. Sometimes a question calls for a direct
answer; sometimes that answer is not fair to the witness unless he
explains why. In this instance he may answer.
WITNESS ELKAR: Rothaug was operating on the principles from
the National Socialistic point of view, that was correct; that a judge
in a Special Court had to fulfill a certain minimum requirement from
a political point of view; that it was not enough for Rothaug that
Special Court judges were appointed who, from the technical point of
view, met the requirements, but they must also have, politically, a
certain maturity--shall we say, a certain political maturity.
DR. KOESSL: Are you finished?
A. Yes.
Q. Insofar as the political maturity of the associate judges goes, did
Gross and Ferber fulfill that and Hoffmann--were all of those taken
from the Special Court by Rothaug removed from the Special Court, or am
I correct?
A. It was so, the basic attitude of Rothaug toward the requirements
of judges in the Special Courts was that he emphasized occasionally,
again and again, that these requirements were, of course, not fulfilled
in all the points of the requirements, because in his opinion the
political orientation did not exist to the extent he desired it. He
said, however, that under his leadership, weaker judges would, shall we
say, fall in line.
Q. Did the associate judges of Rothaug suffer politically in any way,
such as through the SD, because they had different legal opinions and
different conceptions of law, because they had voted differently in the
discussions?
A. By the SD? Do you mean to say by that that steps were taken from the
higher authorities?
Q. Did Rothaug report about the unfavorable comments about his
associate judges in order to have them reprimanded?
A. That was not the case, for Rothaug stated again and again that under
his leadership the judges followed the corresponding course.
* * * * * * *
Q. Can you remember whether it was Rothaug who made efforts to have the
severity of wartime legislation explained to the people--whether these
efforts of his were successful?
A. You mean to say that the hints upon the enlightening form of these
sessions brought it about also that the population would understand it
better now?
Q. Understanding on the part of the population, of the severity as well
as a warning.
A. As far as I remember, the material that was reported was not
sufficient in order to judge this--in order to draw such summary
conclusions.
Q. Did you, yourself, make observations that the people, the
population, felt that they had been warned?
A. That there was a fear of the Special Court is a matter of general
knowledge. That this was in connection with the efforts of Rothaug, I
cannot judge whether this was so.
* * * * * * *
Q. You, yourself, were SS Hauptsturmfuehrer or SD Hauptsturmfuehrer,
how was that called?
A. During the course of the war I came to the rank of SD
Hauptsturmfuehrer, in 1942.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[220]
_DIRECT EXAMINATION_
DR. SCHILF (counsel for defendant Klemm): I shall now ask
you to describe to the Tribunal the work you performed at the Reich
Ministry of Justice. First of all, how was it that you got into the
Reich Ministry of Justice?
DEFENDANT KLEMM: That happened in the course of the
centralization [of the administration of justice in Berlin]. The
Minister of Justice, Dr. Guertner, appeared to have the desire that
the Reich Ministry of Justice, which comprised the administration
of justice of 16 states [Laender], have the Laender represented at
the agencies of the Ministry approximately according to their size
and their importance. That is how it happened that on 1 April 1935,
officials from every former Ministry of Justice in the states were
at that time, I believe, transferred to Berlin. From the Ministry of
Justice for Saxony, four officials were transferred to Berlin. I never
expressed the wish to be transferred to Berlin. The fact that I too was
transferred to Berlin is probably due to the fact that negotiations had
been held between Thierack and Guertner. I don’t know though. About my
being transferred to Berlin, I heard at the middle of March 1935. A
fortnight later, I was due to start work in Berlin.
Q. What was this sphere of work which was transferred to you at the
Ministry in Berlin?
A. Because from 1929 I had worked for the prosecution, and also because
at the Ministry of Justice for Saxony, I had dealt with special
measures concerning penal law, I was given at the Ministry of Justice
a position in Division III at that time, which later became Division
IV. I was appointed auxiliary advisor on high treason cases, and as
district Referent [Bezirksreferent] for several districts of district
courts of appeal, both in political and nonpolitical cases.[221]
* * * * * * *
Q. As an expert on political penal cases in those days, that is in 1935
and 1936, did you have close connections with the Gestapo?
A. The Referent for political penal cases for district courts of appeal
entertained no relations with the Gestapo. When general questions,
questions of particular importance arose, they were dealt with by the
Special Referat, or if there was just one question, it was handled by
the one Referent charged as the SS liaison officer to the police.
Q. The prosecution submitted a document, which is Exhibit 31, NG-266.
Unfortunately, I can only quote the pages of the German text. In the
German document book, page 44, following. Mr. Klemm, I suppose you have
Exhibit 31 before you?
A. Yes, I have.
Q. You know the contents?
A. Yes, I know the contents.
Q. This is a letter of 13 June 1936 from the Reich Minister of
Justice to the chiefs of the various agencies, particularly the
Oberlandesgerichtspresidenten, and general public prosecutors,
informing them that in September or October of the same year, that is
1936, a discussion with experts of the Gestapo was to be held, I ask
you now whether that document is suitable to confirm your personal
statement that you never had anything to do with the Gestapo?
A. That conference was a conference of prosecutor generals and of the
Presidenten of Oberlandesgerichte. They were to be informed about
stopping crimes, particularly concerning high treason and treason.
For that reason police experts discussed the subjects. I did not
attend this conference, but the speeches made there dealt purely with
technical matters. They were speeches by experts from the central
organization of the police, which had the most comprehensive view of
these matters. I know that it has been tried to find out a little more
about this exhibit.
Q. Mr. Klemm, in this connection the prosecution has submitted another
exhibit, that is, Document NG-323, Exhibit 32.[222] The first part
of the document is a letter from the Reich Leader SS, Himmler, of 18
February 1937 to the Gestapo office in Berlin; and on that subject
the Reich Ministry of Justice stated his opinion on 10 March 1937
giving instructions to the general public prosecutors concerning the
collaboration between the office of the public prosecutor and the
Gestapo.
I ask you whether what you have said before is to be changed by this
Exhibit 32?
A. No, I do not have to change it. That circular instruction by the
Ministry of Justice, as one can see from the file note, was drafted
in Department II, not in Department III to which I belonged. Besides,
this regulation is a purely technical one as to how the files are to be
handled during the investigation made by the police.
DR. SCHILF: May it please the Tribunal to refer to the fact
that the file note which the witness mentioned is to be found on the
letter of 10 March 1937, left upper corner. It is IIA and then there
are some Arabic numbers. In this connection, the prosecution has not
submitted any further documents against you.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[223]
_DIRECT EXAMINATION_
* * * * * * *
DR. WANDSCHNEIDER (counsel for defendant Rothenberger): Now
[beginning in 1933], a great change occurred in your career. Could you
tell the Court when and on the basis of what considerations you decided
to give up this quiet and secure life?
DEFENDANT ROTHENBERGER[224]: The year 1933 came. On 5 March
1933, there were parliamentary elections in Hamburg, as everywhere
throughout the Reich. In these elections the National Socialist Party
obtained about 40 percent of the votes. Therefore, it was ordered
to form a new government, because it was the strongest Party in the
Parliament.
Until that time Hamburg had the government majority which consisted of
Social Democrats and Democrats. The NSDAP, which was ordered to form
a new government, formed a coalition government with the Democratic
Party, the German People’s Party, and the German National People’s
Party.
The day after the election, that is on 6 March, the Reich Governor
and Gauleiter of Hamburg Kaufmann, called me up. Until that time I
had not known him personally. He asked me whether I would be willing
to assume the position of the acting mayor in this new government of
Hamburg. He told me that he had heard about me, and therefore he was
making this offer to me. I requested him to give me one day to think
the matter over, and then I refused his offer. I gave as a reason that
I considered that my task lay in the administration of justice, that I
wasn’t inclined for representative nor for political tasks, and these
were connected with the position of mayor of a city like Hamburg.
Thereupon, he asked me whether in that case I would be willing to take
over the administration of justice of Hamburg as its chief, and I
answered that I would.
Q. In the subsequent time did you again refuse leading positions in the
Reich? Perhaps you can mention that in this connection here now.
A. In March 1933 I thus became Justizsenator, as he was called, in
Hamburg, chief of the administration of justice. And the Tribunal
already knows that these Ministries of Justice of the individual
states, of which there were, I believe, 18 at the time, in 1935,
were dissolved by the so-called centralization of the administration
of justice. Therefore, toward the end of 1934, the Reich Minister
of Justice, Dr. Guertner, approached me in Kiel where we met on the
occasion of a university festival, and asked me whether I would be
willing to become presiding judge of the People’s Court, which at
that time was being created. I rejected that offer, even though this
was the second position of a judge in Germany next to the president
of the Reich Supreme Court. But for administration of criminal law
I had neither the experience nor the inclination. The political
development of the People’s Court, of course, one could not predict
in any way at that time. But I remained in Hamburg and when in 1935
the administration of justice was incorporated into the Reich and my
office as chief of the administration of justice, Justizsenator, was
eliminated. I became president of the Hanseatic District Court of
Appeals. That is a position of judge which, however, at the same time
also includes administrative jurisdiction. I believe that the Tribunal
is already familiar with the fact that, from 1935 on, Germany was
divided into, I believe, 35 or 37 areas of district courts of appeal,
and at their top there was each time a president of the district court
of appeal. In 1936 to 1937 the Reichjustizfuehrer [chief of NSRB]
Frank[225] approached me through a representative and asked me if
I would like to be his representative in Berlin in his capacity as
Reichjustizfuehrer. It was not difficult for me to reject that offer,
because during the course of those 2 years I got to know Frank. The
personal characteristics of Frank have repeatedly been emphasized
in this trial, but I want to add one more attribute, that he was
extraordinarily vain and that he never forgave me that I could refuse
to become his assistant.
Q. In conclusion, in regard to this question, would you please state
something about your additional positions in Hamburg which you had in
addition to your position as president of the district court of appeals?
A. In Hamburg I had several extra duties during the years when I was
still in Hamburg, that is, from 1935 on. That is in addition to my
main duty. I was Honorary Professor at the Hamburg University for
civil law, and there I, in a certain sense, continued my activity as
repetitor, that is, tutor, so to say. That is, I held lectures for
students. From 1938 on I was president of the Reich Maritime Office.
That was the final authority in decisions about collisions at sea and
about the litigations regarding the withdrawing of a license which
resulted from this for captains who were found guilty in case of a
collision. From the beginning of the war I was president of the Prize
Court [Prisenhof] in Hamburg. The Tribunal probably knows the functions
of such a Prize Court. Until August 1942 I remained at Hamburg,
and from August 1942 until December 1943 I was in Berlin as Under
Secretary. In December 1943 I again left there, returned to Hamburg,
and was a notary in Hamburg.
* * * * * * *
Q. We now come to the question as to why you became a Party member
and a Gau Leader [Gaufuehrer] of the NSRB. Those are phases of your
political life during which you participated actually and formally in
the NSDAP. Can you explain why you first became a Party member?
A. For reasons of full conviction I became a Party member in 1933,
because at that time this party appeared to me to be more united and
less split up than the other, earlier parties; and in 1934 or 1935
when Gauleiter Kaufmann approached me and asked me to take over the
Gau leadership of the NSRB, I had already gained my first impressions
and experiences in the struggle between the administration of justice
and the Party. It has been emphasized here time and again how, during
the first period, after the revolution of 1933, every Kreisleiter
attempted to interfere in court proceedings; the Gestapo tried to
revise sentences, and it is known how the NSRB tried to gain influence
with the Gauleiter and Reichsstatthalter in order to act against
the administration of justice. In this respect I gained very bad
impressions in Hamburg with the Gaufuehrer at this time of the NSRB,
Dr. Haecke. The Reichsstatthalter removed him from office and asked me
to take his place, and I do not regret having taken that step because
only owing to the fact that I myself held that office, I was in a
position to eliminate attacks on the part of the Party against the
administration of justice from the outset. And that may only have been
possible because I had a Reichsstatthalter in Hamburg who was smart
enough and objective enough to realize pretty soon that any fight
against the administration of justice can only lead to the destruction
of the state itself. I gained influence on the man particularly by
two events. First, because at the first opportunity when the attempt
was made to put an incapable man in charge of a penal institution, I
refused to do so. I asked to be sent on leave and asked him to assure
me that that man would be removed. The case was mentioned here again--a
man by the name of Laatz.
Q. I shall submit an affidavit about that case.
A. To describe the attitude of the Reichsstatthalter in Hamburg, it
is important also to stress that the mayor of Hamburg today, who,
after the surrender in 1945 was appointed officially and publicly
expressed his gratitude for the calm and objective attitude displayed
by Reichsstatthalter Kaufmann during all these years in Hamburg. It
belongs to the same field that 2 years later I took over the Gau legal
office and thereby excluded any competition; and it belongs to the
same complex of questions that during the same year my membership in
the Party was put down as 850,000, which gave me a possibility to
stand up more strongly against the so-called “old fighters” [Alte
Kaempfer--earliest Nazi Party members]. On account of the identity,
of course, between president of the district court of appeals and
Gaufuehrer, I was envied by all other district court of appeals because
they continually had to struggle against the Party while I was saved
this struggle.
Q. How long did you hold these offices?
A. I held these offices until August 1942 when I was transferred to
Berlin; then the Gau legal office was dissolved; and the office of the
Gaufuehrer of the NSRB, I gave up.
Q. Then, you became deputy [Under Secretary in the Reich Ministry of
Justice] in Berlin.
A. Yes, I became deputy in Berlin until December 1943.
Q. What was your attitude toward the SD in Hamburg; could you tell us
something about that? I am referring to Document NG-825, Prosecution
Exhibit 433,[226] in that connection.
A. The SD in Hamburg during the first few years had a bad selection
of personnel. There was the usual system of informers; I was spied
upon; the Reichsstatthalter was spied upon and that led to their
removal. The Reichsstatthalter, when he found out about that, removed
the entire personnel from office from Hamburg. The new men whom he
appointed, as far as they were concerned with matters of administration
of justice, came to me in 1939. In the meantime, the directive had
been sent down from the Reich Ministry of Justice to the effect that
the SD should be considered and used as a source of information of
the state by agencies of the administration of justice; and here also
I was independent to nominate individuals who would not submit reports
intended to go against the interests of the administration of justice,
but who themselves were in favor and sympathy with the principles of
the administration of justice, and that is the basis for the conference
with the SD Fuehrer in Hamburg which is contained in NG-825, the fact
that I made suggestions to nominate men who were judges and whom I
knew would never submit reports which were against the administration
of justice. Since that time, also in Hamburg, no SD informer appeared
in court proceedings, and, as far as I know, no reports were submitted
which were against the administration of justice.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG[227]
_DIRECT EXAMINATION_
* * * * * * *
DR. KOESSL (counsel for defendant Rothaug): In what places and
what official positions were you employed before you became presiding
judge of the Special Court of Nuernberg?
DEFENDANT ROTHAUG: I have already mentioned that after the
result of the state examination had become known, I was soon called
into the Bavarian administration of justice. My appointment was first
with the public prosecutor’s office in Ansbach for the so-called
post-practice [Nachpraxis]. This post-practice was supposed to last
for about 3 months. In my case, however, it was interrupted after only
3 weeks. Perhaps I had proved myself a good student, and after that
I was first transferred to the local court in Weissenburg. I want to
mention that I was called to the prosecution in Ansbach on 1 May 1926.
Until approximately August 1926, I was working at the local court at
Weissenburg. Subsequently I came to the local court at Pfaffenhofen on
the Ilm.
Q. You just mentioned Pfaffenhofen on the Ilm. Where were you living at
that time?
A. I would consider it more to the point if I would first describe my
official positions now, up to the Special Court in Nuernberg. That’s
what you asked me, isn’t it?
I believe I have already mentioned that I came to the local court at
Pfaffenhofen on the Ilm. There I was employed until the turn of the
year 1926–1927. Subsequently I came to the local court at Ingolstadt
on the Danube. I was court assessor during all this time up till 1
June 1927. At that time I became public prosecutor in Hof. In the late
fall of 1929 I became Amtsgerichtsrat at the local court of Nuernberg.
In the middle of 1933, I became first public prosecutor at the public
prosecutor’s office of Nuernberg-Fuerth; in the late fall of 1934,
district court judge at the Schweinfurt District Court; and on 1 April
1937, district court director at the District Court Nuernberg-Fuerth,
and there I was, among other positions, employed as presiding judge of
the Special Court of Nuernberg.
Q. You mentioned Pfaffenhofen on the Ilm. With whom were you living at
the time?
A. In Pfaffenhofen on the Ilm I was looking for a room. I was advised
to take a room with a family who were from Franconia because I myself
was from Franconia. This family had a small meat factory outside of
Pfaffenhofen on the Ilm. The family’s name was Haberkern. That was in
1926.
Q. Is that the later Gau Inspector Haberkern who was the owner of the
“Blaue Traube” where the club table [Stammtisch] was that was supposed
to have been the basis for your political position of power?
A. That is correct. That is the same Haberkern who later on became Gau
Inspector of Nuernberg or more correctly was working with Gauleitung of
Nuernberg.
* * * * * * *
Q. On 1 May 1947 [30 April 1947], the witness Elkar[228] called you,
and I quote, “the highest authority on legal questions in the Gau of
Franconia.” (_Tr. p. 2896._) A little later he calls you “the
Spiritus Rector in the NSRB.”
Doebig says you had been the leading spirit in the NSRB. (_Tr. p.
1775._)
What influence did you exert on the NSRB as a whole?
A. First of all, may I say in general, particularly to the introductory
question, that I consider that those opinions expressed about me are
considerable exaggerations. As for having been an authority on legal
questions, that is out of the question. I have always found that other
people found it a great deal easier; they always dealt with problems
far more quickly, particularly those who passed these opinions. In
effect, the way with us was that questions which concerned my Gau
group, that is to say, the judges and prosecutors’ groups, were passed
on to me. I then gave my opinion on those questions. My opinion was
passed on to the Gauwalter and he then passed the matters on in the
routine way which is the custom in every state; it was just passed on
then to the next authority.
I really don’t think that at any time or at any place I had to cope
with a problem of world importance.
Q. Did you receive immediate instructions from the NSDAP and the
Gauleitung concerning your work in the NSRB?
A. I never received such direct instructions from the Gauleitung.
Q. What were your duties as Gaugruppenwalter in the NSRB for the
judges’ and prosecutors’ groups?
A. In part, that question has already been answered. All problems which
fell within the scope of that professional organization, the Jurists’
League, all problems which reached that organization could come to us
from any quarter, as they could come from the population itself. All
those problems were passed on to the Gaugruppenwalter to deal with, and
they were forwarded to that group, the members of which were in some
way affected by the event under discussion.
On the other hand, naturally, we also had to cope with the particular
difficulties and problems of our members and we had to take care of
their affairs because, after all, they had joined a professional
organization like ours for that purpose.
I should like to give a practical example to explain this matter, and I
will give an example of an event which actually occurred, an event with
which we had to deal.
When the administration of justice was centralized, certain offices
of judges were downgraded. Here at the district court of Nuernberg,
for example, the department chiefs who had had the rank of local court
directors [Amtsgerichtsdirector], overnight, and only because the
administration of justice was being centralized, were downgraded by one
grade. That was done without it being their fault in any way. Naturally
that caused a tension, and naturally the people whom it affected were
very much annoyed. They came to see me and told me about the matter.
As far as I remember they were not Party members, they were of the
older generation, and they said that they had been treated in a way
in which people should be treated only if they had violated service
regulations. I then gave a precise account of the occurrence, made a
report, and drew attention to the fact that such treatment of officials
was untenable. To begin with, Berlin was against taking any interest
and they used the well known slogan, “The interests of the people have
to take precedence over the interests of the individual.” However, by
again and again digging away at the matter, we succeeded in solving the
problem in a way which was satisfactory to everybody concerned.
That was, for example, one of the duties with which we had to deal.
Q. As Gaugruppenwalter for the judges’ and prosecutors’ groups, did you
have an office of your own?
A. I neither had an office of my own nor a staff of my own. I merely
had my chair and my two hands. The work that I had to do there I did as
an individual, and as a rule I wrote it out with my own hand. I then
submitted the matters to the Gauwalter.
Q. Did you wear a uniform in that capacity?
A. Except when I was in the army, all my life I have never worn a
uniform.
* * * * * * *
Q. What offices were asked about the political attitude of a judge and
a prosecutor, and who made out the final qualifications?
A. Political qualifications were exclusively made under the
responsibility of the competent bearer of the sovereignty, that is,
the Kreisleiter or the Gauleiter. For these questions they had a
so-called Kreis personnel office, or Gau personnel office. When a
so-called political qualification of a civil servant was to be made,
these offices addressed inquiries to offices where the civil servant
or official concerned was known; that is to say, if he was a member of
the NSRB, they addressed an inquiry to the Gauwalter of the NSRB, or in
another instance to the competent office of the Civil Service League,
or to the Ortsgruppe, local group of the Party, or to the SA, or SS.
The answers to these inquiries were then gathered at these offices and
from there, if necessary, by reviewing or examining the facts that
were reported the so-called political qualifications report of an
official was made out. This political qualification report was made out
because the supervisory offices of this civil servant by provisions of
the law were obligated to form a judgment on this question with the
intervention of the Party.
Q. How did this develop in your case, and according to what principles
did that proceed?
A. That was an affair which caused the least difficulty. The Gauwalter
gave the slip that had been sent in by the competent Party office
to the Gau group administrator who was competent for that official.
That was I, myself, in the case of inquiries regarding judges and
prosecutors, as long as I was entrusted with that function. I then
returned the slip after it was filled out to the Gau administrator
again, who on his part then reported to the Party office.
It is important to know here that according to an express order a man
who was a Party member was not permitted to be judged as politically
unreliable as long as a Party disciplinary proceeding had not been
carried out against him because of some established facts.
During the time of my activity in regard to that function, it is of
significance that at that time almost all judges and prosecutors were
members of the Party on account of the well known action on 1 May 1937.
Q. Did you hear of a case in which a judge or a prosecutor was
described as politically unreliable? And if so, what happened to that
man?
A. In my time I did not hear of such a case. The declaration which
we made in every case had the following stereotyped contents:
“Circumstances which could raise doubts as to the political reliability
of the person concerned did not occur.”
* * * * * * *
Q. The witness Elkar said literally, and I quote, “As far as I know,
the relations between Zimmermann, Haberkern, and Rothaug were very
close.” (_Tr. p. 2896._) [Page 374, herein.]
How did you come to know Zimmermann, and what were your relations with
him?
A. I have already pointed out that it was only in the course of 1940
that I met Zimmermann by accident when he was at the Blaue Traube.
Q. How often did he attend sessions of the Special Court when you were
presiding judge, and do you know why he attended those sessions?
A. I cannot remember one single case when Zimmermann attended one of
my sessions. However, it is possible that he attended at the case of
Schmidt-Fasel, which has been discussed here several times.
Q. As to Haberkern, you have already testified that quite by accident,
as a young assessor, you met him in 1926 and that for many years you
had no contact with him. How and when did you hear that Haberkern was
in Nuernberg?
A. That was in connection with the National Socialist change-over in
1933. In those days his name often appeared in the newspapers, and
that was how I discovered that he was in Nuernberg and that he played a
political role.
Q. You have already said that you did not resume contact, not even
when against your will you were transferred to Schweinfurt. You have
also given us your reasons. When and how was it that you renewed your
relations with Haberkern?
A. It was in 1938 as far as I recollect. One day Haberkern rang me up
and asked whether I was that Rothaug who in 1926 had stayed in his
home. I told him that I was that man, and he was very pleased and asked
me to come to see him and his wife. They were the owners of the Hotel
Blaue Traube, Nuernberg. I told him that I would go to see him some
day, and one day I did go to see him. That was how I came to the Blaue
Traube.
Q. What were Haberkern’s offices in Nuernberg and the Gau Franconia?
A. He was Gau inspector, the leader of the Hotel and Restaurant
Association, and he was also an Ortsgruppenleiter. I believe he was the
Ortsgruppenleiter of the old city.
Q. Through this function did he have any contacts with your official
position as judge?
A. No. The Gau inspector, according to his official duties, has to
take care of internal matters of the Party. As a leader of the Hotel
and Restaurant Association all he could have done was to find me some
rooms for my summer holidays. I had nothing to do with his local group
[Ortsgruppe] because I belonged to a different group.
* * * * * * *
Q. Witness, did the Party offices in Party affairs have their own legal
consultants?
A. In this connection, one must point out that every Party office, even
the Ortsgruppenleiter, the leaders of the local groups, had their own
legal offices. I had nothing to do with that matter.
Q. When were matters concerning legal questions brought to you?
A. Only if simultaneously they affected the interests of the NSRB, and
even then only if they affected the interests of the Gau Group for
judges and public prosecutors.
Q. Did the Gauleitung take any interest in the general administration
of justice?
A. I never noticed that the Gauleitung of Franconia ever took any
interest in the development of the legal situation.
Q. Did the legal situation play a decisive part in the Gauleitung?
A. I never noticed anything of that sort.
Q. At the table at the Blaue Traube that has been mentioned here so
often, were there ever any discussions which have been laid down
previously?
A. May I summarize my statement and perhaps say for the last time
that I went to the Blaue Traube with the same intentions that other
people had when they went there, and with which other people are in the
habit of going to other pubs. As for conferences with agendas, they
weren’t held there for the simple reason that that would have been
parliamentary. I met other people there, too, but I didn’t meet anybody
who went there with any political aims.
Q. Were official matters discussed there?
A. Not official, though Party matters were discussed there; but
there, as I think happened in those days at every table in every pub,
political things were discussed, and the war was discussed. If somebody
were to ask me today what we talked about, I would not be able to give
an account of even one trend of ideas that we discussed there.
Q. Did you ever go to Haberkern with your own affairs, that is to say,
to get any of your own wishes of a personal nature fulfilled?
A. I never bothered Haberkern on any matter of that kind.
Q. Do you know whether other people from your entourage asked Haberkern
for his help on their own behalf?
A. I heard that they did.
* * * * * * *
Q. When the witness Ferber[229] mentioned the doubts which the Reich
leadership harbored for your political reliability, he said that the SD
took an interest in your remaining at Nuernberg. From the account of
the witness Elkar, English transcript, page 2888, [page 369, herein,]
we know that approximately in May 1940, you were called to a conference
which was attended by Doebig, Bens, and the SS section leader,
Friedrich, and that in that way you got into contact with the SD. What
was the topic of those discussions when you joined in?
A. That matter was rather different. To begin with, Elkar came to me
at my office. Then Obersturmbannfuehrer Friedrich called and also a
Standartenfuehrer whose name I no longer remember. All those three
men belonged to the SS. Those three men told me that they had come to
call on me because they wanted to introduce themselves to me, and they
wanted to try and establish good relations between their office and the
administration of justice authorities.
Conditions in general were then discussed, in particular the fact
that the administration of justice in certain press organs, above all
the Schwarze Korps, was being subjected to continuous attacks. They
considered that state of affairs undesirable, all the more so as they
also knew that those articles were generally written on the basis of
one-sided information. They also asked for my opinion as to what I
would think of all questions which arose here in Nuernberg concerning
the administration of justice, if they were to be dealt with to start
with on a lower level before a report was made on a higher level. I
thought that was a good idea. They asked me whether I would care to be
the mediator. I suggested district court of appeals and the general
public prosecutor since as it was, they had told me that they intended
to call on those officials, too.
I would like to point out that the three of them had only called on me
because Elkar had brought them along. As you know Elkar had been with
me for training as a Referendar. At that time I had no idea what the
SD was about, and what its functions were. The conference with Doebig
and Bens was along the same lines and both men saw the point and agreed
that it was quite a reasonable plan which had been submitted to them.
They suggested that it might be a good thing to let these matters be
dealt with through me because the cases which occurred with me were
cases which were to be treated later.
I would subsequently be asked to attend that conference. I, myself--and
I think it would have been the same with every human being--couldn’t
imagine, or anyway, couldn’t imagine very well what was going to happen
at that conference. That was the basis on which developments went along.
Q. What was Doebig’s attitude to Friedrich’s wishes?
A. I believe I have already answered that question. As usual, he was in
favor of cooperation.
PRESIDING JUDGE BRAND: May I ask you a question. It wasn’t
entirely clear what you meant in your testimony. You suggested that
investigations on a lower level should take place before the higher
level. Investigations of what--what kind of matters?
DEFENDANT ROTHAUG: Investigations is not the word I meant to
say. I wanted to say that by negotiations, matters which concerned the
administration of justice were to be settled on a lower level.
Q. What kind of matters--which concerned the administration of justice?
A. What we had in mind was attacks which within the sphere of the Party
were made against the administration of justice. I can illustrate that
by an example.
Q. It is not necessary now. No, I understood you to act under this
suggestion as an intermediary. Was that your word?
A. That I was to become the intermediary?
Q. Yes, between what parties or what groups?
A. Between the SD and the administration of justice.
Q. Yes, and then you said since these matters are all matters to be
dealt with by me afterwards, it was reasonable that you should be the
intermediary. Did you refer to legal matters?
A. That concerned matters--cases which might be brought before me or
which were already pending before me. Matters in which those agencies
were interested for reasons of criminological developments, but they
were not interested in the individual case as such, in its treatment,
or in the decision.
Q. And what was the lower level where the matters were to be first
discussed?
A. The main difficulties which arose and which gave cause to discuss
this matter at all were made from up above--from a higher level. A
report was made on some occurrence or other to the SD; the SD passed
the matter on to Berlin; from there it was passed on as a rule without
having been settled or even examined to the press where it caused a
great deal of sensation.
Q. Was this lower level, to which you refer, the local representatives
of the SD?
A. Yes, naturally.
PRESIDING JUDGE BRAND: Go ahead.
DR. KOESSL: Now, Witness, tell us please, what was to be
prevented by the discussions, the report to the higher level; what was
it--was it that things were to be clarified after the higher level had
dealt with it?
DEFENDANT ROTHAUG: One cannot state all that in one reply in
such a general way. With these questions it always depended on what
the individual case was like; what the attending circumstances of the
individual case was like; and it depended upon what the aims and
object of the participants were. Without going into the matter of the
individual case, it is impossible to give an objective answer.
Q. The witness Doebig said, “It was only a great deal later after I
had left Nuernberg that I heard for certain that Rothaug worked in
the SD.”[230] Later, Doebig stated that he remembered that the SD
Leaders Friedrich and Elkar paid him a visit, but that he could not
remember the subject which was discussed. Anyhow, he had never given an
inference that the administration of justice would cooperate with the
SD. (_Tr. pp. 1865–1866._) What position did Doebig take?
A. I have already answered that question when I said that Doebig was
altogether in favor of settling matters in that way.
Q. How often would Elkar call on you in the subsequent periods?
A. He said on Saturdays, and that makes it sound as if he had come
every Saturday, but that is quite out of the question. He came on some
Saturdays, but sometimes weeks passed or months until he came to see
me again about some matter or other. As was the case with many other
things that were organized within the sphere of the Party, they dragged
on and finally nothing much was done.
Q. What did Elkar tell you during these discussions about the functions
of the SD, regarding the state of the Party?
A. He told me, and I think that was probably right, that the SD as we
saw it was an institution of the nature of an official agency; that is
to say, it was an organization of the police type; its activities and
functions can best be described as an agency that gathered the opinions
of the people; one intended to find out what the people really thought
on official measures taken by the government, that is to say what
they thought about laws, about judgments, about other administrative
measures, etc. Those reports were then to be evaluated and passed
on the competent Supreme Reich Authorities to enable them in their
governmental transactions and measures, to remain aware of the thoughts
of the people. In all these reports therefore, what mattered was not
to find out who the people were who were critical and undesirable, but
on the contrary, the intention was to find out what people were really
thinking; and therefore, it was undesirable and prohibited to prosecute
in any way an individual who stated his opinion in this connection.
That was roughly the scope of the functions of the SD.
Q. In the English transcript at page 2912, the witness Elkar mentioned
the official character of the SD. I am showing you a book, and would
ask you to tell the Tribunal what the title is.
A. The book is entitled Ministerial Gazette [Ministerialblatt]; it was
issued by the Reich Minister of the Interior; it was published in 1938.
Q. Please turn to page 1906. At the right hand corner you will find a
circular decree by the Reich Leader SS and Chief of the German Police
at the Reich Ministry of the Interior, dated 11 November 1938. Please
read out section 1 of that circular decree.
A. Under the heading police administration, it says, “Collaboration
of the authorities of the administration with the SD was the subject
of the Reichsfuehrer SS (SD) circular decree by the Reich Ministry
of Interior, dated 11 November 1938.” Then, there is a file note.
Then--“one: The SD of the Reichsfuehrer SS (SD), as information
organization, intelligence organization for Party and State, has to
work in particular in support of the security police and has to fulfill
important duties. The SD thereby acts on the instructions of the
State. That necessitates close understanding and cooperation between
the SD and the authorities of the general and internal administration.
In reply to inquiries by the SD, information has to be imparted
therefore to the same extent as if inquiries had come from a government
authority. The official agencies of the SD, in the same way, are
under obligation to reply to inquiries of the general and internal
administration.”
Q. Witness, what were the motives for which you met with Elkar and
discussed matters with him?
A. The main cause was that he knew me from his former training period.
Q. You may continue.
A. I said Elkar knew me since the time when he was in training, because
he was assigned to me. He was by nature a very faithful person, and
at the time when he was not yet with the SD, I was connected with
him by purely human relationships. That is how it came about that at
that time, after he had taken up service with the SD and a connection
with the administration of justice and the SD was sought, he came to
me first for I was known to him; and that is how in the subsequent
period the entire relationship was purely a matter of comradeship.
This is shown best perhaps by the fact that one day Elkar informed
me that he would probably be transferred to the RSHA in Berlin for
further training. Thereupon, I told him that in that case I would also
discontinue my activity because I would not start all over again with a
new man.
Q. What descriptions did Elkar give you about the further handling of
the SD reports in Berlin?
A. He said that the information which I gave him--which was usually
an opinion on problems which were connected with the collection of
comments from the people--he would incorporate into his reports.
These reports in Berlin would then be divided according to whichever
participating Reich agency was interested and put at the disposal of
those offices.
Q. Did you have an insight into questions and tasks which were outside
of the administration of justice?
A. I did not gain any insight into those questions.
Q. Did Elkar tell you anything about the activity of the SD
Einsatzgruppen in the east?
A. No. I only found out about that now.
Q. Did Elkar speak to you about the so-called final solution of the
Jewish problem by extermination, execution, or gassing?
A. No word was ever spoken about this. I do not believe that Elkar was
informed about matters of that kind either.
Q. Did Elkar tell you about individual SD Fuehrers being entrusted with
special tasks, as for instance, the feigned attack on the Gleiwitz
radio station, or similar undertakings which were the subject of the
IMT Trial?
A. Matters of that kind were not discussed among us. The examples you
have cited became known to me only here in Nuernberg in the course of
this trial.
Q. What was the basic line of your conversations with Elkar, or the
basic topic?
A. As I have already stated, the conversations were mainly on problems
which were raised by opinions which were gathered from the population.
That then led to problems of a general nature, for example, the general
development of wartime criminality in one field or another.
In general, that was the direction in which our conversations developed
and that was also the aim of such conversations.
Q. Could everything be said in such conversations without restrictions?
A. I believe that that was the only possibility at that time in Germany
where a person could say exactly what he was thinking; and the reason
for that is because, in this connection in particular, only the
truth was at stake for they were interested in finding out what the
population was actually thinking in regard to certain events, measures,
laws, speeches, judgments, etc.
Q. Do you know in what form these reports were forwarded?
A. That is not known to me; I never read such a report.
Q. According to Elkar’s testimony you directed your attention to the
development of criminal and penal proceedings. (_Tr. p. 2890._)
What ideas did you represent?
A. I believe I have already stated my position on that question. I do
not remember a great deal in detail regarding what was discussed at
that time. One question, for example, which interested us and which
demonstrates how we came to speak about these matters and what opinion
we represented is the question which was frequently discussed in this
trial, and that is the contact of the prosecution during the trial
with the court because of the application for penalty. Opinions from
circles of lawyers and judges and from the prosecution were gathered
for this purpose at that time. I myself represented the opinion that
this problem grew into a problem only because it was treated in a
wrong manner on the part of the administration of justice. The entire
question could be solved by a small remark in the “Deutsche Justiz,”
namely, by pointing out that the law does not provide that a formal
application has to be made, and therefore it would have been sufficient
to instruct the prosecutors to refrain from a formal application for
penalty and to be satisfied with adducing the evidence and then stating
the reasons which spoke for and against the defendant. With that, the
entire excitement and fuss which was caused by the formal application
for penalty could have been avoided.
Q. What reason did you give for this suggestion?
A. The reason which I have just explained.
* * * * * * *
Q. Elkar alleges that you had also talked about pending trials and had
discussed also the facts as well as the legal situation and future
judgment. (_Tr. p. 2891._) Was the name of a defendant ever
mentioned as long as trial was still pending?
A. The names of defendants never played any importance in these
conversations. The manner of expression was general. The individual
cases, as such, were of no importance at all and their outcome even
less so. It is possible that in the most infrequent cases--as an
example of a definite criminal deed, in order to demonstrate, for
example, the method of the consequences of this crime and to use
it in the discussions of general questions, that an individual case
was mentioned, but not in a single case was it like this that Elkar
ever was interested in a certain pending trial or even wanted to get
information about the final outcome in advance; such an evaluation was
not possible in practice at all for the decision could be given only on
the basis of the trial after it was concluded. Thus, Elkar’s activity
was not aimed at such a goal.
Q. By mentioning an individual case, did you ask for the opinion of
the RSHA in order to find a basis for the political evaluation of the
offense?
A. Never. I had no connections whatsoever to the RSHA. Moreover,
such a method even in the Third Reich would have been an absolute
impossibility, and it was never alleged that this occurred.
Q. Did you, in any individual case, receive an instruction from the
RSHA or a recommendation to direct the trial in a certain direction
under a certain point of view, or to pronounce a certain definite
penalty?
A. This, too, was never alleged so far. Such a procedure, too, would
have been an absolute impossibility. No office would have dared to
suggest anything of that nature even.
* * * * * * *
Q. We started with your relationships to the SD. On what formal basis
were your relationships with the SD? Were you a member of the SD?
A. I was never a member of the SD; I don’t know either whether there
was such a thing as a membership in the SD; or, whether the people
were assigned to the SD from the SS. Only during this trial did I hear
that there was such a thing as an actual membership in the SD. At that
time I assumed that it was an institution of the nature of an official
agency, the personnel for which was appointed by the SS. I never made
any application for any membership in this institution; I never signed
anything.
Q. Elkar says that in 1940 you had taken an oath as collaborator of the
SD; that is in the English transcript at page 2896. Did you take an
oath?
A. I can say this with absolute certainty, that I never took an oath
in that connection. The possibility exists that it was called to my
attention that matters which I found out in connection with such
conversations were supposed to be kept secret. However, I do not have
the slightest recollection of this either, so I cannot imagine that
I was approached on this matter in a solemn ceremony. It is a fact,
in any case--and this is why the people who worked for me also knew
about these occurrences--that the matters which were discussed there,
without exception, I believe, I had also discussed with them and among
them. Thus, I had no thought of violating any secrets or any pledges of
secrecy.
Q. What was the status called that you had with the SD?
A. In former times I never worried about that because for me it was not
a question of practical importance as to what I would be designated as,
since I had agreed to hold conversations of the type that I used to
carry on with Elkar. Thus, in former times, there was no need to have
some kind of a rank for that, or whatever you want to call it.
Q. Did you ever become a member of the SS?
A. I was never a member of the SS.
* * * * * * *
b. New devices to change final court decisions--The
“Extraordinary Objection” and the “Nullity Plea”
PARTIAL TRANSLATION OF NG-715
PROSECUTION EXHIBIT 112
EXTRACT FROM LAW, 16 SEPTEMBER 1939, AMENDING REGULATIONS OF GENERAL
CRIMINAL PROCEDURE, MILITARY CRIMINAL PROCEDURE, AND THE PENAL CODE
1939 REICHSGESETZBLATT, PART 1, PAGE 1841
* * * * * * *
Part 2
Extraordinary Objection [Ausserordentlicher Einspruch]
Article 3
Extraordinary Objection to final judgments [rechtskraeftige
Urteile][231]
(1) Against final penal sentences the Chief Reich Prosecutor at the
Reich Supreme Court can file an objection within 1 year after the
sentence has become final, if, because of serious misgivings as to the
justness of the sentence, he deems a new trial and decision in the case
necessary.
(2) On the basis of the objection, the special penal senate of the
Reich Supreme Court will try the case a second time.
(3) If the first sentence was passed by the People’s Court, the
objection is to be filed by the Chief Reich Prosecutor at the People’s
Court, and the second trial is to be held by the special senate of
the People’s Court. The same applies to sentences of courts of appeal
in cases which the Chief Reich Prosecutor at the People’s Court has
transferred to the public prosecutor at the court of appeal, or which
the People’s Court has transferred for trial and sentence to the court
of appeal.
(4) If there is a connection with a case which is under the
jurisdiction of the military courts, the proceedings can be transferred
to the jurisdiction of the armed forces by agreement between the Reich
Minister of Justice and the Chief of the High Command of the Armed
Forces. On the basis of the objection the case will then be decided by
the special senate of the Reich Supreme Military Court (art. 410b of
the Military Code of Criminal Procedure).
* * * * * * *
Fuehrer Headquarters, 16 September 1939
The Fuehrer and Reich Chancellor
ADOLF HITLER
The Reich Minister of Justice
DR. GUERTNER
The Chief of the High Command of the Armed Forces
KEITEL
EXTRACTS FROM THE TESTIMONY OF DEFENDANT LAUTZ
CONCERNING THE EXTRAORDINARY OBJECTION[232]
_DIRECT EXAMINATION_
* * * * * * *
DR. GRUBE (counsel for defendant Lautz): When, in effect, did
you assume your office as Chief Reich Prosecutor at the People’s Court?
DEFENDANT LAUTZ: Due to illness, I only assumed office on 20
December 1939, in Berlin.
* * * * * * *
Q. * * * Witness, first of all what general remarks do you have to make
on the subject of the extraordinary objection?
A. The extraordinary objection, which was introduced in 1939, was based
on a bill which had already been drafted. The purpose was to be able to
correct obvious mistakes in judicial decisions, and thereby to effect
uniformity in the practice of the courts.[233]
Q. In article 2, section 3 of the law of 16 September 1939, it says:
“Against final criminal sentences, the Chief Reich Prosecutor at the
Reich Supreme Court can file an objection within 1 year after the
sentence becomes final, if, on account of serious misgivings against
the justness of the sentence, he deems a new trial and decision in
the case necessary.” In paragraph 3 of the same section, it says, “If
the first sentence was passed by the People’s Court, the objection is
to be filed by the Chief Reich Prosecutor at the People’s Court, and
the second trial is to be held by the special senate of the People’s
Court.” According to this, one should assume that the two Chief Reich
Prosecutors were those who had to decide whether an extraordinary
objection was to be made or not. Please comment on this.
A. This assumption would be incorrect. According to all the regulations
and the constitutional basis of this law, it was without doubt that
such a far-reaching statement could be made only by the head of the
State for the government, because the extraordinary objection repealed
the sentence which had been pronounced, and returned the case to the
stage at which it was before the trial. Thus, if an extraordinary
objection was raised, a new trial had to take place as if nothing
had happened before. Therefore, through internal instructions, it
was assured that the two Chief Reich Prosecutors, the one at the
People’s Court and the other at the Reich Supreme Court, could raise
an extraordinary objection only by virtue of an order of the Minister
of Justice as the representative of the leadership of the State. And
this is not expressed in the law because according to the German
conception of a trial, the Minister of Justice cannot make any direct
statements in a trial. The two Chief Reich Prosecutors, therefore, made
these statements, as I said, only from case to case on orders of the
Minister, which as a rule, were even issued so unequivocably that the
statement which had to be made, with the reasons for it, was in each
case prescribed to the Chief Reich Prosecutors. Thus, the Chief Reich
Prosecutor just as the other authorities, for instance, the attorneys
general or the presidents of the courts were not prevented, if they
thought that there was a cause for it, from suggesting on their own to
the Minister of Justice that he should issue such an order.
Q. Witness, the material decision as to whether an extraordinary
objection should be raised or not was thus made in the Ministry?
A. The material decision was made exclusively by the Minister of
Justice. That is, only he personally made it on the basis of a report
made to him by his Referent personally. In particular it was like that;
in case of every decree issued by the Ministry it had been assured that
either by the signature of the Under Secretary or the Minister, or the
division chief, it was made clear that the decision had actually been
made by the Minister in this case.
Q. Did you ever raise an extraordinary objection without having an
order from the Minister?
A. That never happened.
Q. You just said that the two chief Reich prosecutors as the officials,
as supervising authorities of the administration of justice, for
example, attorneys general, presidents of the courts of appeal, etc.,
had the right to suggest to the Minister of Justice that he should
issue an order to raise an extraordinary objection. Did you make use of
that possibility?
A. I only did so very infrequently on my own initiative. I still
remember a few cases in which sentences pronounced by the senate
presided over by Freisler were concerned. We were _per se_ not
very much inclined to attack sentences pronounced by our own court by
such a legal recourse. However, Minister Thierack, though not much
inclined to admit objections, occasionally could be made to do so in
cases presided over by Freisler. The cases which are pertinent here, I
may perhaps describe briefly. The first Senate of the People’s Court in
one case had condemned a person to death because of treason. The facts
were as follows: The defendant had transferred a model 38 machine gun
into the hands of the enemy; he had obtained the machine gun and given
it to an enemy agent. The enemy had known about this machine gun for a
long time because they had captured many of these machine guns on the
battlefield. Thus, only attempted treason could be the case, and the
indictment was filed in that manner. Nevertheless, the Senate passed
the death sentence. Here the extraordinary objection was permitted. A
second case was a death sentence against a member of the Protectorate,
the opinion of which consisted of three-quarters of a page by Freisler.
In this case I suggested that this was not an opinion at all, since
from the facts one could not find out at all what the defendant had
done; and because of this legal mistake the extraordinary objection
should be allowed. This extraordinary objection, therefore, was
permitted.
Q. Witness, could the defense suggest an extraordinary objection?
A. Yes, the defense counsel could do it, too. The contents of such
petitions frequently showed that pure clemency reasons were used by
them as arguments in favor of an extraordinary objection, and not basic
legal questions. In such cases it was suggested to them that they make
a clemency plea. But, if the extraordinary objection was based on such
grounds that there was a hope that it might succeed, I submitted it to
the Minister of Justice and supported it. However, and I have stressed
that here before, it was very difficult to get Thierack to allow
extraordinary objection to be made in favor of a defendant.
Q. May I interpolate a question? Were you, as chief prosecutor, the
competent official who had to deal with such extraordinary objections?
A. No, no, that was the Chief Reich Prosecutor of the Reich Supreme
Court at Leipzig.
Q. Can you tell us something as to whether extraordinary objection was
made frequently?
A. During the early part of the war, when the extraordinary objection
was introduced, that is, until approximately 1942, it was a very
infrequent occurrence. It was altogether the exception that it
was made. From that time onward, however, their number increased
slowly, but I cannot even give a rough estimate as to the number of
extraordinary objections that were ordered. Originally, the Ministry
of Justice, if a report was made by me as to whether an extraordinary
objection was to be made--for example, in the case of a sentence
passed by the court of appeals--originally the ministry was agreeable
to my using again and again the phrase that the sentence gave rise to
misgivings on some points, but these points were by no means of such a
serious nature that the unusual recourse of the extraordinary objection
should be used. That became different only when the new chief of
Department IV of the Ministry of Justice, Ministerialdirektor Vollmer,
assumed office. I asked him about this one day, and inquired from
him how it was that these days the Minister more frequently ordered
an extraordinary objection to be made. In reply he said, since the
Fuehrer decree of August 1942, Thierack had all authority in the field
of the administration of justice and, therefore, in the sphere of the
extraordinary objection, too, he had more scope than hitherto.
* * * * * * *
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
DECREE OF 21 FEBRUARY 1940 CONCERNING THE NULLITY PLEA
1940 REICHSGESETZBLATT, PART 1, PAGE 405
Decree concerning the jurisdiction of the criminal courts, the Special
Courts, and additional provisions of criminal procedure of 21 February
1940.
* * * * * * *
Part V
Nullity Plea [Nichtigkeitsbeschwerde] of the Chief Reich
Prosecutor
Article 34
Prerequisites of the Nullity Plea
The Chief Public Prosecutor may lodge a nullity plea with the Reich
Supreme Court against a final judgment of the local court, the penal
chamber of the district court, or the Special Court, within 1 year from
the date of its becoming final, if the judgment is unjust because of an
erroneous application of law on the established facts.
Article 35
Decision on the Nullity Plea
(1) The nullity plea is to be filed in writing with the Reich Supreme
Court. This court will decide thereon by judgment based on a trial;
with the consent of the Chief Reich Prosecutor it can also reach a
decision without a trial.
(2) The Reich Supreme Court can order a postponement or an interruption
of the execution. It can order a warrant of arrest already before the
decision on the nullity plea. Outside of the trial, the penal senate,
composed of three members including the president, decide thereon.
Article 124, paragraph 3, of the Code of Criminal Procedure remains
unaffected.
(3) If the Reich Supreme Court reaches a decision based on a trial,
articles 350 and 351 of the Code of Criminal Procedure apply
accordingly. The president can order the personal appearance of the
defendant.
(4) If the Reich Supreme Court quashes the contested sentence, it can
make its own decision on the case if the facts found by the contested
judgment are sufficient for this; otherwise it will refer the case
to be retried and newly decided upon to the court whose sentence is
quashed or to another court.
* * * * * * *
Part VI
Final Regulations
Article 40
Validity in the Protectorate
This decree is also valid for the German courts in the Protectorate of
Bohemia and Moravia.
Berlin, 21 February 1940
The Plenipotentiary for the Administration of the Reich
FRICK
PARTIAL TRANSLATION OF DOCUMENT NG-677
PROSECUTION EXHIBIT 188
EXTRACTS FROM AFFIDAVIT OF DR. ESCHER, GERMAN ATTORNEY,[234]
CONCERNING THE USE OF THE NULLITY PLEA
Dr. Ernst Escher, Attorney Fuerth, 7 December 1946
Rudolf Breitscheidstrasse 8
_Sworn Affidavit_
As a result of questioning by the American prosecutors in the Nuernberg
courthouse, I have the following declaration to make in connection with
the questions set before me concerning the procedure of the so-called
nullity plea by the Chief Reich Prosecutor:
1. Previous legal situation--It is true that the legal principle that a
man cannot be tried twice for the same offense [_ne bis in idem_]
is not clearly stated in the German Criminal Code, dated 22 March
1924, and since subjected to frequent editorial changes; this maxim,
however, was repeatedly acknowledged in the so-called “motives” of that
law. In all of the German legal terminology and literature, no doubt
had ever occurred that an individual, once legally tried, could not
be resummoned before a court for the same criminal act, without the
introduction of additional evidence of proof. New proceedings against
an accused who had been legally acquitted, could only be initiated in
accordance with the rules concerning such a reconsideration of a once
legally concluded trial (arts. 359 ff., in particular, art. 362 of the
Criminal (Penal) Code).
The accused was therefore assured that, once he had been legally
acquitted, he would not be summoned a second time before the court on
the same charge.
These principles were never repealed in the Code of Criminal Procedure
itself; they remained unaltered until the present, and the Criminal
Code of 1946, issued by the [Allied] Control Council also incorporated
them.
2. During the war, Hitler’s government, in a decree pertaining to
the competence of the criminal and Special Courts and covering
other regulations of criminal procedure, dated 21 February 1940
(Reichsgesetzblatt 1940, I, p. 405, in art. 5, pars. 34 to 37), created
the procedure of the so-called nullity plea[235] by the Chief Reich
Prosecutor and thereby annulled and destroyed this fundamental legal
maxim. Within a year after a verdict became valid, according to this
decree, the Chief Public Prosecutor at the Reich Supreme Court was
empowered to use the nullity plea against the final sentences of the
local courts of the criminal divisional courts and of the Special
Courts if, due to an error in the application of the law to clearly
established facts, the sentence could be regarded as unjust.
In a later decree, dated 13 August 1942, allowance was made for a
further extension in the use of the nullity plea. Published in the
Reichsgesetzblatt in 1942 (p. 508 ff.), this decree in article 7,
paragraph 2, established the right of the Chief Public Prosecutor at
the Reich Supreme Court to employ the nullity plea, if the decision
due to an error in the application of the law was unjust, or if there
were serious objections to the validity of the evidence on which the
decision was based, or to the sentence itself.
By this decree, it became practically possible to employ the nullity
plea against every final judgment and of summoning an accused man the
second time before a criminal court despite the fact that his case had
already been legally decided.
As is evident in the literature, and especially in the published
decisions of the Reich Supreme Court, the nullity plea was not
infrequently employed. I refer to the official collection of Reich
Supreme Court decisions, volumes 74, 75, and 76 of the published
decisions involving the nullity plea.
* * * * * * *
I have been asked how the nullity plea of the Chief Public Prosecutor
at the Reich Supreme Court was obtained legally. In this connection,
I am only able to state that, according to regular procedure, the
chief of the local prosecution--thus in Nuernberg, the Chief Public
Prosecutor at the district court of Nuernberg-Fuerth--Chief Public
Prosecutor Schroeder in the cases with which I was concerned--would
send the documents with an appended suggestion to use the nullity plea
first to the attorney general at the court of appeal (during the last
years, Bens) and from there to the Chief Public Prosecutor at the Reich
Supreme Court in Leipzig.
According to the text of the law, the nullity plea could also be
employed to the advantage of the condemned. In one case, I myself filed
a nullity plea with the Chief Public Prosecutor at the Reich Supreme
Court. I was, however, informed that there was no justification for the
instigation of the nullity plea.
[Signed] DR. ERNST ESCHER
Attorney
EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS
ERNST ESCHER[236]
_CROSS-EXAMINATION_
* * * * * * *
DR. SCHILF (counsel for defendants Klemm and Mettgenberg):
Now I am going to refer to the factual contents of your affidavit.
(_NG-677, Pros. Ex. 188._[237]) This statement concerns itself
exclusively with the problem of the nullity plea. Therefore, Witness, I
will ask you whether you consider yourself a particular specialist on
this problem and held yourself to be such an expert when, on 7 December
1946, you made that statement.
May I point out that the first part--I should like to say one half, the
first half, is concerned with theoretical matters, that is to say, with
the interpretation of the law. The remainder is concerned with facts.
Furthermore, you refer to literature and also to decisions made by the
Reich Supreme Court. May I ask you to give me your point of view?
WITNESS ESCHER: On no account can I say that I am an expert or
that I have special knowledge of the problem of the nullity plea. We
defense counsels, generally speaking, do not have much time to devote
ourselves to scientific problems. As a rule we deal with problems only
when they have been brought to us by our practical work. Concerning the
theoretical aspect of the nullity plea, I have never in my practice
studied it, in detail, but when the nullity plea, became topical, I
examined the questions which a defense counsel has to investigate. When
in December 1946 I was asked what I knew about the nullity plea, what I
had to say about my knowledge of this matter, I mentioned the two cases
which occurred in my practice. It seemed necessary to me, however,
to give a brief introduction concerning the situation such as it was
before the introduction of the nullity plea and such as I saw it after
the introduction of the nullity plea. I read several decisions, but I
would consider it conceit if I were to say that I possessed thorough
knowledge of the problem of the nullity plea.
Q. Witness, in your practice you only came across two cases, isn’t that
correct?
A. Yes.
Q. In spite of your statement, Dr. Escher, I have to discuss one
theoretical question with you. In your introduction such as you
characterized it just now, on page 2 under 2 of your affidavit,
you have drawn a conclusion, that is a conclusion as to what the
introduction of the nullity plea led to. You said, and I am going to
quote literally: “The so-called nullity plea of the Oberreichsanwalt
was created and thereby the basic legal principle, _ne bis in
idem_, double jeopardy, was revoked and destroyed.” As you made such
a far-reaching statement on that point, I would like to hear in brief
as to what, at the time you deposited your affidavit, you understood by
the legal principle _ne bis in idem_, double jeopardy. I noted you
mentioned that principle twice. May I ask you to give a brief account
to the Tribunal of your opinion as you held it at that time?
A. The principle of double jeopardy meant that a person on whom a
legal verdict had been passed could not without new facts having
emerged or without the condition of articles 359 and following of the
Code of Penal Procedure applying, be retried by a court. Neither the
prosecution nor the defendant after legal sentence had been passed
could demand a new trial unless the conditions such as they are laid
down in the law were fulfilled. That is, for example, perjury on the
part of a witness, the finding of new documents or similar fundamental
new aspects. By that principle the possibility of the nullity plea was
eliminated. And that and not more is what I believe to have stated in
my affidavit.
* * * * *
Q. Witness, concerning your opinion on the principle of double
jeopardy, your view that that principle was eliminated by the nullity
plea, will you maintain your opinion in the face of what I am going to
read to you now? It is a paper by Oberreichsanwalt Retzer, Leipzig,
published in _Deutsche Justiz_, volume 1941, No. 20, page 562, I
quote:
“It is doubtful whether the nullity plea is possible if the
violation of the law which occurred refers to a condition of
the trial. It is undisputed in the case of a violation of the
principle of double jeopardy. The Supreme Reich Court in a great
number of cases revoked sentences where the principle of double
jeopardy had been violated.”
That is the end of the quotation. To make it clearer, the Supreme Reich
Court revoked these decisions by way of the nullity plea, and four
cases are quoted and the file numbers are given. My question--now that
I have read this to you--do you maintain your opinion?
A. May I say briefly the nullity plea could only be made by the
Oberreichsanwalt, but not only against the defendant but also in favor
of the defendant. It was, therefore, altogether possible that the
Oberreichsanwalt, if he considered a verdict unjust, should use the
nullity plea in favor of the defendant. Such a case does exist, even
if through certain circumstances or errors a man is sentenced twice
for the same crime by different courts, which happened occasionally
because, for example, it wasn’t known in the case of a Nuernberg case
that this man had already been sentenced in Berlin. When that was
revealed, the Oberreichsanwalt naturally could make use of the nullity
plea in favor of the defendant. Such cases evidently are discussed in
the decisions which my colleague has just put to me. In those cases,
the nullity plea was a blessing and worked in favor of the defendant,
but in most cases, or at least in very many cases, the nullity plea was
used without any new facts or conditions, according to article 359 by
the Oberreichsanwalt against the defendant.
Q. Witness, the essence of what I put to you is this: You said, by the
nullity plea, the principle of double jeopardy has been destroyed, and
the other author says that the nullity plea was in fact to protect that
principle. I wanted to ask you whether you maintain your opinion, and
you have not answered that question as yet.
A. I am of the opinion that the question, the way it is put, contains
a little misunderstanding insofar as Retzer deals only with one
special case of the nullity plea where it was made in order to revoke
decisions which had been made in violation of the principle of double
jeopardy. Naturally, the principle of double jeopardy was not expressly
eliminated by so many words, but the effect of the introduction of the
nullity plea was that a man, on whom a legal sentence had been passed
without new facts or circumstances having come to light, could be
retried by a court. Sometimes it could operate in his favor, but in the
majority of cases it went against his interest, in my experience, that
is.
* * * * * * *
EXTRACT FROM THE TESTIMONY OF DEFENDANT ROTHAUG CONCERNING A CASE
WHERE, AFTER A NULLITY PLEA, THE REICH SUPREME COURT CHANGED A PRISON
SENTENCE TO THE DEATH SENTENCE WITHOUT REFERRING THE CASE BACK TO THE
SPECIAL COURT OF FIRST INSTANCE[238]
_DIRECT EXAMINATION_
* * * * * * *
DEFENDANT ROTHAUG: * * * In order to elucidate how severe,
for example, the Reich Supreme Court, in particular, generally judged
the situation in those cases [sabotage cases during wartime] is
demonstrated by the case in the list of the death sentences of the
Special Court Nuernberg in which the notation is made--Sentence of the
Reich Supreme Court. I believe it was in 1941. The following were the
facts:
A Pole had given a civilian pair of pants to a Serbian PW in order to
enable him to flee into his home country. In fact, the Serbian prisoner
did escape. The Pole confessed; however, he denied decisively that he
had intended that the Serb should join the Tito forces; that he only
did it out of compassion. Therefore, we sentenced him to a penal camp,
3 years in a penal camp. Thereupon, a nullity plea was filed, the Reich
Supreme Court changed the sentence, did not even refer it back to us,
but quickly sentenced the Pole to death by stating that, in their
opinion the facts which we had already determined ourselves, as I have
just told you in a few brief sentences now, were absolutely sufficient
to pronounce the death sentence.
And I still recall that the important point of view was--and I remember
it, because I was interested--that it could not matter in wartime what
concrete intentions he had but that it was absolutely sufficient that
the Pole could have counted upon the possibility that the Serb would
join Tito’s forces.
* * * * * * *
2. FURTHER DEVELOPMENTS PRINCIPALLY DURING THE PERIOD WHEN THE
DEFENDANT SCHLEGELBERGER WAS ACTING REICH MINISTER OF JUSTICE (JANUARY
1941–AUGUST 1942)
a. The Influence of Hitler and Others upon the
Administration of Justice
PARTIAL TRANSLATION OF DOCUMENT NG-152
PROSECUTION EXHIBIT 63
LETTERS FROM DEFENDANT SCHLEGELBERGER TO HITLER AND LAMMERS, MARCH 1941
AND MARCH 1942, CONCERNING JUDICIAL SENTENCES DISPLEASING HITLER AND
PROPOSING PARTICIPATION IN CIVIL PROCEEDINGS BY PUBLIC PROSECUTORS
[Stamp]
Reich Chancellery 5197 B-4 April 1941
The Acting Minister for Justice
Berlin, 10 March 1941
My Fuehrer,
In continuing the work of the deceased Reich Minister Dr. Guertner, I
will do my utmost to install the administration of justice with all
its branches more and more firmly within the National Socialist State.
In the course of the large number of verdicts pronounced daily there
are still judgments which do not entirely comply with the necessary
requirements. In such cases, I will take the necessary steps. In
order that such judgments be dealt with rapidly you, my Fuehrer, have
created the nullity plea and the extraordinary objection for criminal
cases. For civil proceedings, the right of application by the Chief
Reich Prosecutor at the Reich Supreme Court for the resumption of the
procedure, could serve the same purpose as provided in an ordinance
drafted by myself. So as to avoid all such wrong verdicts, the public
prosecutor’s office is called on, in this draft, to participate
in civil proceedings, and should stress the right of the national
community against the individual interests of the opposing parties.
Apart from this it is desirable to educate the judges more and more to
a correct way of thinking, conscious of the national destiny. For this
purpose it would be invaluable if you, my Fuehrer, could let me know if
a verdict does not meet with your approval. The judges are responsible
to you, my Fuehrer; they are conscious of this responsibility and are
firmly resolved to discharge their duties accordingly.
I feel that it is my duty to you, my Fuehrer, to bring it to the
attention of the judges if a decision does not conform to the opinion
of the State leadership.
Heil, my Fuehrer!
[Signed] DR. SCHLEGELBERGER
[Stamp] 3868 B
[Handwritten] 1508/1
The Acting Reich Minister of Justice
Berlin, 10 March 1941
[Initial] L. [Lammers]
[Handwritten] 11 March 2 enclosures
Dear Reich Minister Dr. Lammers:
In connection with our telephone conversation of today, I am sending
you a copy of my letter addressed to the Fuehrer.[239] I consider it
of great importance that the Fuehrer receive this letter as soon as
possible. It has come to my knowledge that just recently a number of
sentences passed have roused the strong disapproval of the Fuehrer.
I do not know exactly which sentences are concerned, but I have
ascertained for myself that now and then sentences are pronounced
which are quite untenable. In such cases I shall act with the utmost
energy and decision. It is, however, of vital importance for the
administration of justice and its standing in the Reich, that the head
of the Ministry of Justice should know to which sentences the Fuehrer
objects; for nothing is more dangerous than the creation of a so-called
atmosphere, of the causes of which the Minister of Justice is unaware.
That is the reason for my request to the Fuehrer in the last paragraph
of my letter. I repeat, this attempt to establish a direct contact
between the Fuehrer and the Minister of Justice must be made at once if
irreparable damage is to be avoided.
In explanation of the first paragraph of my letter, I enclose the
mentioned draft of the decree, which is to be provisionally discussed
here on the 17th of this month with the Reich Chancellery. Basic
approval has already been received from the Reich Finance Minister, the
Reich Minister of the Interior and the Reich Minister of Economics.
Participation by the prosecuting authorities in civil cases was already
known in Roman law. Nowadays, in the recently published Italian code of
civil procedure, this participation has been extended, following the
general line of my draft, because, as is indicated in the report to the
king, a purely platonic participation is no longer sufficient.
The deceased Reich Minister Dr. Guertner, during the last days he was
still in office, advised me to examine the question of whether an
extraordinary objection should be created for civil as in criminal
cases. I have adopted the right of the Chief Reich Prosecutor to ask
for the reopening of a case but deliberately with such limitations,
that by human standards no offense can be created thereby; this special
reopening will only be put into practice in so-called secular cases.
With best regards and Heil Hitler!
Yours very truly
[Signed] DR. SCHLEGELBERGER
Enclosure to the Letter of 10 March 1941 from Defendant
Schlegelberger to Lammers
Draft of a Decree Concerning Participation by the Public Prosecutor in
Legal Proceedings of matters of Civil Law
dated....................1941
The Ministerial Council for the Defense of the Reich issues the
following decree with force of law:
Article 1
(1) The public prosecutor is authorized to participate in civil law
proceedings in order to plead the circumstances which have to be
considered from the point of view of the national community and for the
final judgment. For this purpose, the public prosecutor may be present
at all proceedings and may give his opinion regarding the judgment
which is to be passed. He may submit facts and evidence insofar as
this does not affect the rights of either party with regard to the
disagreement.
(2) Regulations which already provide for participation by the public
prosecutor in matters of civil law, are not affected.
Article 2
In matters of civil law where a valid final judgment has been passed,
the Chief Reich Prosecutor at the Reich Supreme Court may, within a
year after the decision has become valid, file an application for
reopening the proceedings if there are serious legal and factual
objections against the justness of the decision, and if he considers
new proceedings and a new judgment to be necessary because of the
special importance of the judgment to the national community.
Article 3
(1) The high senate for civil matters at the Reich Supreme Court makes
a decision by writ, on application.
(2) The participants in the previous proceeding may be heard.
Article 4
(1) If the Reich Supreme Court grants the application of the
Chief Reich Prosecutor, it will again take up--as far as this is
necessary--the previous proceedings and the judgments passed, and will
order new proceedings and a new judgment.
(2) The Reich Supreme Court determines whether the new proceedings and
judgment will be dealt with by the court previously concerned with the
case, or will be replaced by another court of the same standing, or
whether it will be dealt with by a senate of the Reich Supreme Court.
Article 5
(1) The new proceedings will be considered a continuation of the
previous proceedings.
(2) The court is bound by the legal and factual judgment on which the
Reich Supreme Court based its writ.
(3) No court fees will be charged for the new proceedings and judgment.
Article 6
The president or a member of the high senate for civil matters,
appointed by him, may issue temporary orders regarding the execution of
judgments concerned in the application of the Chief Reich Prosecutor at
the Reich Supreme Court.
Article 7
The Reich Minister of Justice is authorized to issue supplementary
regulations and regulations for the implementation of this decree.
Article 8
In the Protectorate of Bohemia and Moravia, this decree is only valid
for proceedings before German courts.
The Acting Reich Minister of Justice
Berlin, 24 March 1942
My Fuehrer:
When I took office, I asked you to inform me whether, if a sentence did
not meet with your approval, you would allow me to correct it. I ask
permission to consider the telephone call made on Sunday, 22 March,
concerning the case of Schlitt at Wilhelmshaven as granting my request,
and I express my sincerest thanks for this.
I entirely agree with your demand, my Fuehrer, for very severe
punishment for criminals [Verbrechertum], and I assure you that
the judges have honest will to comply with your demand. Constant
instructions in order to strengthen them in this intention and the
increase of threats of legal punishment have resulted in a considerable
decrease of the number of sentences to which objections have been made
from this point of view, out of a total annual number of more than
300,000.
I shall continue to try to reduce this number still more, and if
necessary, I shall not shrink from personal measures as before.
In the criminal case against the building technician Ewald Schlitt from
Wilhelmshaven, I have applied through the Chief Reich Prosecutor for
an extraordinary objection against the sentence at the special senate
of the Reich Supreme Court. I will inform you of the verdict of the
special senate immediately it has been given.
Heil my Fuehrer!
[Signed] DR. SCHLEGELBERGER
To the Fuehrer and Chancellor of the Greater German Reich,
Adolf Hitler
TRANSLATION OF DOCUMENT NG-280
PROSECUTION EXHIBIT 70
CORRESPONDENCE BETWEEN THE REICH CHANCELLERY AND DEFENDANT
SCHLEGELBERGER, MARCH AND APRIL 1941, AFTER HITLER HAD EXPRESSED
DISPLEASURE AT A SENTENCE GRANTING EXTENUATING CIRCUMSTANCES TO A POLE
Berlin, 28 March 1941
Pertaining to Reich Chancellery 4729
Subject: Sentences against Poles
1. Memorandum:
According to information from Reichsleiter Bormann a sentence of the
Lueneburg District Court (apparently in a rape trial) against a Polish
farm hand has been submitted to the Fuehrer, in which the defendant is
granted extenuating circumstances because it was felt that he did not
have the same restraint in his relations to female co-workers as German
farm hands have. The Fuehrer rejected this view of the court as totally
misleading. Under Secretary Schlegelberger is to take the necessary
steps to preclude a repetition of this view.
[Initial] F [FICKER]
The Reich Minister and Chief of the Reich Chancellery
Berlin, 29 March 1941
Dispatched 30 March
Reich Chancellery 4729 B
[Handwritten] See Reich Chancellery 5021 B
2. To: Under Secretary Dr. Schlegelberger
Reich Ministry of Justice
Dear Mr. Schlegelberger:
The sentence of the Lueneburg District Court of 21 October 1940 on the
Polish farm hand Wolay Wojcieck from Rolfsen has been transmitted to
the Fuehrer. In it the court states:
“The defendant is granted extenuating circumstances in respect
to the crime. The court considered in the defendant’s favor
that, as a Pole, he does not have the same restraint in his
relations with female co-workers as the German farm hand would
have.”
The Fuehrer rejected the view of the court as totally misleading. The
Fuehrer urges you to take immediately the steps necessary to preclude
repetition in other courts of the view of the Lueneburg court. I should
be obliged if you would inform me what steps you have taken in the
matter.
Heil Hitler!
Yours very truly,
(Name of the Reich Minister)
[Handwritten] with final copy
3. To Reichsleiter Bormann
Dear Mr. Bormann:
I transmitted the instruction of the Fuehrer as contained in your
letter of 26 March 1941, concerning the consideration of extenuating
circumstances in crimes committed by Poles, to Under Secretary Dr.
Schlegelberger with the request for information about what steps he has
taken in the matter.
Heil Hitler!
Yours very truly,
(Name of the Reich Minister)
[Initial] L
(with original copy)
4. [to be submitted again] on 28 April
[Initials] Ri 29/3
F 28/3
Reich Chancellery 5021 B--2 April 1941 Kri-Fi Record RH
4729 B 1b, 392 B
The Acting Reich Minister of Justice
Berlin, 1 April 1941
[Initial] /L. [LAMMERS]
1. Office: 2 April
[Stamp] Enclose previous records
2. Miss Frobenius:
See Reich Chancellery 5194
[Initial] L. [Lammers]
2 April
Dear Reich Minister:
Upon receipt of your kind letter of 29 March 1941 I immediately
consulted the files of the criminal case against the Polish farm hand
_Wolay Wojcieck_. In the statement of the court the passage
quoted in your letter is indeed to be found. By means of a _circular
letter_ with the order for immediate transmittal to all judges and
public prosecutors I brought the mistake in the viewpoint, as it is
shown in this passage of the court’s statement, to the attention of
the administration of penal justice [Strafjustiz] without delay. _I
consider it impossible that such an incident will occur again._
I also had the responsible president of the Appellate court and the
judges concerned ordered to report here tomorrow with the intention of
changing responsibilities at the Lueneburg district court with a view
to excluding the judges who cooperated in issuing the sentence from
further employment in criminal jurisdiction.
Heil Hitler!
Yours very truly,
[Signed] SCHLEGELBERGER
1. Reported to the Fuehrer. Also reported on the letter of Under
Secretary Schlegelberger of 3 April 1941.
2. Office--The above letter is to be filed.
3. To be submitted to me again.
Berlin, 3 April 1941
[Handwritten]
1. Schl. has been provisionally informed by phone.
2. [Illegible] above Count 2
3. Min. Counsellor Kritzinger [illegible] L 4 April
[Stamp]
Reich Chancellery 5914 B--4 April 1941
[Handwritten] submitted with File Reich Chancellery 5021 B
The Acting Reich Minister of Justice
Berlin, 3 April 1941
[Initial] L [Lammers] 3 April
Your Excellency, Herr Reich Minister:
In addition to my letter of 1 April 1941 I beg to inform you that the
presiding judge of the penal chamber which passed the sentence in the
case against the Polish farm hand Wolay Wojcieck is no longer presiding
and that the two associate judges have been replaced by other associate
judges.
Heil Hitler!
Yours very truly,
[Signed] SCHLEGELBERGER
[Handwritten]
Reich Chancellery 5021, 5194 B
1. No further steps will be taken.
2. The Reich Minister of Justice is going to transmit the [Illegible].
3. To be submitted again on 24 April.
[Initials] KR [Kritzinger] 10 April
See Reich Chancellery 5929 B
Justice 11
TRANSLATION OF DOCUMENT NG-611
PROSECUTION EXHIBIT 64
CORRESPONDENCE BETWEEN BORMANN, LAMMERS, AND DEFENDANT SCHLEGELBERGER,
25, 29 MAY AND 28 JUNE 1941, CONCERNING A SUGGESTION OF HITLER TO
CONVERT A PRISON SENTENCE INTO A DEATH SENTENCE
[Handwritten] Reich Chancellery 7593 B
Reich Leader Martin Bormann
To Reich Minister Dr. Lammers,
Berchtesgaden
Reich Chancellery
Fuehrer Headquarters, 25 May 1941
Bo/Si.
[Initial] L [Lammers] 26 May
1 enclosure
Personal
By messenger
[Handwritten]
1. [stamp] Miss Frobenius: (Reich Chancellery)
2. To Ministerialrat Ficker
[Initial] L [LAMMERS] 26 May
[stamp] See document of 29 May
Dear Mr. Lammers:
In yesterday’s edition of the “Voelkischer Beobachter” the Fuehrer read
the enclosed report according to which the Special Court of Munich
in a trial in Augsburg _sentenced the 19-year-old Anton Scharff to
10 years’ hard labor for theft under cover of the black-out_; the
public prosecutor had asked for the death sentence.
_In the Fuehrer’s opinion this sentence is entirely
incomprehensible._ The Fuehrer believes that in such cases capital
punishment must definitely be given if crimes committed under cover of
the black-out are to be kept to a minimum from the outset. The Fuehrer
has also emphasized time and again that the criminals should receive
severe punishment considering the heroic fighting of our soldiers.
The Fuehrer requests you to inform Under Secretary Schlegelberger again
of his point of view.
Heil Hitler!
Yours very truly,
[Signed] M. BORMANN
[Typed] (M. BORMANN)
1 enclosure
[Handwritten] War 12
[Enclosure]
JUST MISSED THE SCAFFOLD
10 Years’ Hard Labor for a Pickpocket--Death penalty demanded
Augsburg, 23 May
The 19-year-old Anton Scharff was tried for theft under cover of the
black-out before the Special Court of Munich in session in Augsburg.
On the evening of 18 April in the Jesuitengasse in Augsburg, the
perpetrator snatched the handbag from a young woman as she was going to
unlock the door of her house. Upon the woman’s screams for help, the
perpetrator was pursued and caught by passers-by. He was sentenced to
10 years’ penitentiary and corresponding loss of civil rights.
The public prosecutor had asked for the death penalty.
The Reich Minister and Chief of the Reich Chancellery
Reich Chancellery 7593 B
Fuehrer Headquarters, 29 May 1941
1. To Under Secretary Dr. Schlegelberger
[Handwritten] Charged with the management of the affairs of
the Reich Minister of Justice.
Subject: Crimes committed under cover of the black-out
Enclose copy of enclosure of Reich Chancellery 7593 B
Dear Mr. Schlegelberger:
The Fuehrer took from the Munich edition of the “Voelkischer
Beobachter” dated 24 May, a report, a copy of which is enclosed,
according to which the Special Court of Munich in a session in Augsburg
sentenced the 19-year-old Anton Scharff to 10 years’ penitentiary for
theft under cover of the black-out; the public prosecutor had asked
for the death penalty. The Fuehrer considers this sentence entirely
incomprehensible. The Fuehrer believes that in such cases the death
penalty must definitely be given, if crimes committed under cover of
the black-out are to be kept down to a minimum from the outset. The
Fuehrer has also emphasized time and again that the criminals should
receive especially severe punishment considering the heroic fighting of
our soldiers.
The Fuehrer requested that I reiterate his point of view to you.
Heil Hitler!
Yours very truly,
(Name of the Reich Minister)
2. To Reich Leader Martin Bormann
In reply to the letter of 25 May 1941--Bo/Si--
Enclose copy of 1
Dear Herr Bormann:
Enclosed please find a copy of my letter of today to Under Secretary
Dr. Schlegelberger for your information.
Heil Hitler!
Yours very truly,
(Name of the Reich Minister)
3. After dispatch to Ministerial Director Kritzinger for his
information.
[Initial] KR [Kritzinger] 2 June
4. To be filed.
(Name of the Reich Minister)
[Initial] L [Lammers]
[Initial] F [Ficker] 27 May
Berlin, 28 June 1941
Reich Chancellery 9687 B/29 June 1941
The Acting Reich Minister of Justice
III secret 23 1548/41
[Initial] KR [Kritzinger] 20 June
[Initial] F [Ficker] 30 June
To: The Reich Minister and Chief of the Reich Chancellery
Berlin W 8
Voss Strasse 6
Submitted to the Reich Minister for his information.
[Initial] KR [Kritzinger]
1 July
Subject: Crimes committed under cover of the black-out
Reference: Letter Reich Chancellery 7593 B dated 29 May 1940.[240]
[Handwritten]: To be filed. [Initial] L [Lammers]
Dear Reich Minister Dr. Lammers:
I am very much obliged to the Fuehrer for having complied with my
request to take the sentence of the Special Court in Munich against
Anton Scharff as an opportunity to have me informed about his views
as to the proper expiation for crimes committed under cover of the
black-out. I shall again inform the presidents of the district courts
of appeal and the attorneys general of this view of the Fuehrer as soon
as possible.
The short notice in the Munich edition of the “Voelkischer Beobachter”
dated 24 May, which was enclosed in your letter of 29 May, does not
make the sentence comprehensible in my opinion either. In the judgment
the following facts are stated. Scharff, who was not quite 19 years old
when he committed the crime, is the only child of a painter’s family
and comes from a very poor home. On account of an infection of the
lungs his father is unable to work as a painter and his only occupation
is in the office of the Nazi Party Public Welfare Organization in
Pfaffenhofen on the Ilm. The parents have barely the necessaries of
life.
Since the middle of 1937 the defendant was thrown on his own resources
and gained his living without parental help and away from home on
poorly paid jobs, first by agricultural work and recently as an
unskilled worker with a firm in Augsburg. His conduct and efficiency
were satisfactory. As the defendant, whose wages amounted to 50 pfennig
per hour, could not make both ends meet and contracted harassing debts,
he absented himself from work several times in order to get better
earnings through odd jobs, such as helping in the loading of wagons at
the railroad station and also in this way to obtain dismissal from his
employers who would not discharge him.
Around Easter 1941 he left his job after having spent his last wages.
He reckoned with his early drafting into armed forces, since he had
volunteered for an antitank unit and, with consent of his father, had
enlisted for 12 years in order to bring his financial troubles to a
final stop. This time he did not find work at the railroad station.
Thus, it happened that he soon found himself without means, and hit
upon the idea of getting money by stealing a handbag. After having
watched the district in question, he thought that on 18 April 1941 at
about 2200 hours he had found a fitting opportunity and snatched the
handbag from under the arm of a young woman whom he had followed for
some time when she was about to unlock the door of her house. When
the woman, a war widow, called for help and people approached, the
defendant fled and threw away the handbag but was arrested a short time
later without offering resistance.
On the basis of these facts which help to elucidate the peculiarity
of the offense and the character of the perpetrator, the court was
induced to pass a mild sentence. Since no violence could be proved,
the defendant was not convicted of robbery, but only of theft. As
extenuating circumstances, the clean conduct sheet, satisfactory
work, his youth and immaturity, as well as the hard life, full of
deprivations, led by defendant, were put to his account by the court
and for these reasons the death penalty was dispensed with.
I ask you to assure the Fuehrer that my unwavering attention is
directed to the safeguarding of the protection of the people against
public enemies through the severe punishment of criminals.
Heil Hitler!
Yours very truly,
[Signed] DR. SCHLEGELBERGER
TRANSLATION OF DOCUMENT NG-287
PROSECUTION EXHIBIT 88
CORRESPONDENCE BETWEEN LAMMERS, SCHAUB, AND DEFENDANT SCHLEGELBERGER,
OCTOBER 1941, CONCERNING TRANSFER OF MARKUS LUFTGAS TO THE GESTAPO FOR
EXECUTION[241]
The Reich Minister and Chief of the Reich Chancellery
Rk/ 15506 B
Fuehrer Headquarters
25 October 1941
[Handwritten] 393A
1. To: Under Secretary, Professor Dr. Dr. h.c. Schlegelberger,
charged with the management of the affairs of the Reich Minister
of Justice
Berlin W 8
Wilhelmstrasse 65
[Handwritten] Refer to newspaper
Dear Mr. Schlegelberger:
The enclosed newspaper clipping about the sentencing of the Jew Markus
Luftgas to imprisonment for 2½ years by the Special Court of Bielitz
has been submitted to the Fuehrer.[242] The Fuehrer wishes Luftgas
to be sentenced to death. May I ask you urgently to instigate what
is necessary and to notify me about the measures taken so that I can
inform the Fuehrer.
Heil Hitler!
Yours very truly,
(Signature of the Reich Minister)
[Handwritten] Justice 11
2. To: SS-Gruppenfuehrer Julius Schaub[243]
Fuehrer Headquarters
Subject: Markus Luftgas
Dear Mr. Schaub:
After receiving your letter dated 22 October 1941 I got into touch with
the Reich Minister of Justice and asked him to instigate the necessary
measures.
Heil Hitler!
Yours very truly,
(Signature of the Reich Minister)
3. Copy of the newspaper clipping to be filed.
4. After dispatch--For the attention of Ministerial Director
Kritzinger for information.
5. After 1 month.
(Signature of the Reich Minister)
[Initial] L [Lammers]
Copy
[Enclosure] to Rk. 15 506 B
“Berlin Illustrated Night Edition”
No: 246, Monday 20 October 1941
_Jew hoarded 65,000 eggs and allowed 15,000 of them to spoil_
By wire from our reporter
Breslau, 20 October--The 74-year-old Jew Markus Luftgas from Kalwarja
removed a huge number of eggs from the controlled economy and had to
answer for it at the Special Court in Bielitz. The Jew had hidden
65,000 eggs in containers and in a lime-pit, 15,000 of which had
already spoiled. The defendant was sentenced to 2½ years’ imprisonment
as a just punishment for a crime against the war economy regulations.
Berlin, 29 October 1941
The Acting Reich Minister of Justice
III g-14 3454/41
To the Reich Minister and
Chief of the Reich Chancellery
in Berlin W 8, Vosst. 6
[Initial] L [Lammers]
[Handwritten] 3/11
1. Submitted to the Minister for his information
2. To be filed.
[Initial] KR [Kritzinger]
Subject: Case against the Jew Luftglass (not Luftgas) Sg 12 Js
340/.41 of the Chief Public Prosecutor in Katowice
--Rk. 15506 B dated 25 October 1941.
Dear Reich Minister Dr. Lammers:
In accordance with the order of the Fuehrer and Reich Chancellor dated
24 October 1941, transmitted to me by the Minister of State and Chief
of the Presidential Chancellery of the Fuehrer, I have handed over to
the Gestapo for the purpose of execution, the Jew Markus Luftglass
who was sentenced to 2½ years’ imprisonment by the Special Court in
Katowice.
Heil Hitler!
Very truly yours,
[Signed] SCHLEGELBERGER
TRANSLATION OF DOCUMENT NG-508[244]
PROSECUTION EXHIBIT 72
CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO PRESIDENTS OF DISTRICT
COURTS OF APPEAL, 15 DECEMBER 1941, QUOTING FROM A SPEECH BY HITLER AND
STATING THAT JUDGES AND PUBLIC PROSECUTORS MUST KEEP HITLER’S WORDS IN
MIND
The Acting Reich Minister of Justice
33/2-IIa2 3024/41
Berlin W 8, 15 December 1941
Wilhelmstrasse 65
Tel. 11 00 44
Long distance: 11 65 16
To: The Presidents of the District Courts of Appeal and the
Attorneys General
An important factor in keeping up the morale of the German people on
the home front is the prompt and purposeful administration of penal
justice.
The Fuehrer was referring to this when, in his speech before the German
Reichstag on 11 December 1941, he said:
“The memory of those who died for the existence and greatness
of the German people even before our time makes us realize the
extent of our duties.
“He who tries to escape this duty, however, has no right to live
among us as a member of the German national community.
“We shall be equally unrelenting in our fight for the
preservation of our people as we were in our fight for power.
“At a time when thousands of our best men, fathers and sons of
our people, are being killed in battle, nobody shall hope to
live who attempts to depreciate at home the sacrifice which is
made at the front. No matter under which disguise the attempt is
made to disturb this German front, to undermine the resistance
power of our people, to weaken the authority of the regime or to
sabotage production on the home front; the culprit shall die!
But there is this difference--while death brings highest honor
to the soldier at the front, the other who depreciates this
sacrifice shall die in shame.”
Every judge and every public prosecutor while doing his duty must keep
these words of the Fuehrer in mind. This will enable him to fulfill his
task in such a manner as is demanded by the Fuehrer.
I beg to give this outline immediately to all judges concerned with the
administration of penal justice and to all public prosecutors, and to
bring it to the notice of all judges who will in future be concerned
with the administration of penal justice.
[typed] Signed: DR. SCHLEGELBERGER
Certified: [Signed] MASSMUNDT
First Secretary at the Ministerial Chancellery
[Stamp]
Reich Ministry of Justice,
Office of the Minister
TRANSLATION OF DOCUMENT NG-445
PROSECUTION EXHIBIT 73
LETTER FROM THE PRESIDENT OF THE BERLIN COURT OF APPEAL TO DEFENDANT
SCHLEGELBERGER, 3 JANUARY 1942, COMMENTING UPON “INFLUENCE EXERTED UPON
THE JUDGES”
The President of the Berlin Court of Appeal
File number--3130.--A. 522/36
Berlin W 35, 3 January 1942
Eltzholzstrasse 32
Phone No. 27 00 13
To: Under Secretary Dr. Schlegelberger
in Berlin W 8,
Wilhelmstrasse 65
Subject: Report about the general situation in the districts.
Reich Ordinance of 9 December 1935--Ia 11012.
1. When I paid a visit to the criminal court a few months ago in
order to attend proceedings of the Special Court, I heard from the
representative of the president of the district court in Moabit that
“the Reich Ministry of Justice was expecting two death sentences”
in the criminal case which was on the docket. My investigations
produced the fact that the competent public prosecutor had informed
the president of the Special Court prior to the session that he had
received a directive from the Reich Ministry of Justice to ask for
a death sentence in two cases. The president of the Special Court
had informed me the representative of the president of the district
court hereof. I consider it undesirable that officials of the public
prosecutor’s office pass on prior to the proceedings such directives
given them by a higher authority to the president of the court, as
it has been done here. For I am afraid that judges, including those
sitting in the Special Court, are in some cases much more easily
inclined to pronounce a given penalty, especially the death penalty, if
they hear that “the Reich Ministry of Justice” has given a directive
to the public prosecutor’s office to ask for such a sentence or that
“according to the views of the Reich Ministry of Justice” this penalty
is necessary. I consider such a communication, given to the court by
the public prosecutor, as undesirable, also because the “opinion of the
Reich Ministry of Justice” conveyed by the public prosecutor, might
possibly, in an individual case, but represent the personal views of
a minor official of the Reich Ministry of Justice, about which he had
informed the competent official of the public prosecutor’s office.
2. The president of the Berlin district court, according to what he
reported to me recently, in the course of a visit to a criminal trial
in Moabit observed the following:
The trial was set for 0900 hours. Punctually at 0900 the president
of the district court had taken a seat on the witnesses’ bench. The
judges did not show up at first. Instead, loud voices could be heard
from the conference room behind the courtroom. The president of the
district court got the impression of a heated debate in which one
voice could be heard above the others. According to what the president
of the district court could observe, the defendant’s attention was
aroused, and he listened in the direction of the conference room. No
actual words could be understood by the president of the district
court, but he thought it quite possible that the defendant who was
very much nearer to the conference room could hear details. Therefore,
the president sent a marshal to the conference room with the order to
inform the court about that. Shortly afterward the public prosecutor
appeared first in the courtroom, then the members of the court. They
all came through the same door which leads directly to the courtroom
from the conference room. After the beginning of the proceedings the
president of the district court soon could undoubtedly recognize that
the extraordinarily loud voice he had heard before had been the voice
of the public prosecutor’s representative for that trial.
3. Recently I learned from an official complaint
[Dienstaufsichtbeschwerde] that immediately prior to the session the
president of a Special Court had conferred with the public prosecutor.
Thereby the punctual beginning of the session was prevented, and the
final results were that all other people involved in the trial had to
wait unnecessarily for the beginning of the session. The president of
the district court told the judge that if such talks seemed necessary
they should be timed in such a way that the punctual beginning of the
session would not be delayed thereby.
4. It has been reported to me that repeatedly, even after the beginning
of the session, especially after the end of the producing of evidence
and prior to the beginning of the pleadings, the public prosecutor’s
representative repeatedly got in touch with members of the court in the
conference room, during an intermission in the proceedings. In these
talks, as I have been told, the question of guilt, but above all the
sentence, had been discussed.
5. I have been informed confidentially that a Gau office for legal
affairs [Gaurechtsamt] has conveyed the following information to the
Reich Office for Legal Affairs of the NSDAP:
“According to a confidential instruction of the Reich Ministry
of Justice, details of which I do not know, the public
prosecutors have been requested to contact the judges about the
sentence to be asked for before the pleadings take place. This
request has caused extraordinary surprise, especially among
lawyers. The pleadings of the defense counsel have practically
become a mere formality. Prior to the pleadings of the defense
counsel the court and the public prosecutor have already agreed
upon the penalty. In practice, the court in almost every
case always agrees to the penalty asked by the Chief Public
Prosecutor.
“Naturally, this does not only strike the defense counsel, but
gradually also the population.
“In this connection, a change must take place immediately.
If a conference between the public prosecutor and the court
concerning the degree of the penalty is considered necessary at
all, at least it can be asked that the defense counsel, too, be
present at these talks and be permitted to clearly state his
point of view.”
It is my opinion that, as soon as the trial has begun, any contacts
between the public prosecutor and members of the court are undesirable,
because, as the events discussed above prove, misunderstandings are
provoked thereby.
The public prosecutor’s getting in touch with the court, as requested
in the decree of 27 May 1939--4200. IIIa-4-758, and as it was also
suggested in the concluding speech of the late Reich Minister of
Justice at the conference held in the Reich Ministry of Justice on 24
October 1939 (condensed report, pp. 50 and 51), therefore, will have
to be limited to the time before the beginning of the trial. It seems
practical to have it take place already the day before the trial or
even earlier. At any rate I do not think it desirable that the contacts
are made immediately before the beginning of the trial and that, in
addition, they happen in the conference room of the court, because then
occurrences such as I have described under 2 and 3 of this report
cannot always be prevented. I consider it an illicit contact when the
latter takes place after the end of the producing of evidence or, even
more, after the pleadings have been concluded. Therefore, the president
of the district court in Berlin, upon my request, has conferred with
the attorney general of the district court. The latter has instructed
the public prosecutors within his area of jurisdiction to get in touch
with the president of the court--as far as this is necessary--already
the day before the trial or still earlier, at any rate, however, to
refrain from making contacts after the beginning of the trial. The
presidents of the courts have been notified by the president of the
district court accordingly, and have been instructed to refrain under
all circumstances from any getting in contact in the conference room
immediately prior to the beginning of the session. The prevention or
limitation of discrepancies between the penalty demanded by the public
prosecution and the sentence passed in court, which was the purpose
of the decree of 27 May 1939 and of the detailed arguments of the
late Reich Minister of Justice, should be safeguarded by a timely and
comprehensive contact prior to the trial.
Moreover, and as stated above, I consider it as undesirable in the
interest of the administration of justice, and in order to remove any
fears concerning influence exerted upon the judges, that officials of
the public prosecutor’s office communicate “the opinion of the Reich
Ministry of Justice” in the case on hand, or any orders which may have
been issued to them concerning the penalties to be asked, to the court
outside of the proceedings.
In view of the general importance of the matter, I thought it advisable
to report about it.
[Typed] Signed: HOELSCHER
Certified.
[Signed] R. OTTILIE
[Seal] Berlin Court of Appeal Clerk
PARTIAL TRANSLATION OF DOCUMENT NG-752
PROSECUTION EXHIBIT 24
EXTRACT FROM HITLER’S SPEECH TO THE GERMAN REICHSTAG, 26 APRIL 1942,
REQUESTING CONFIRMATION OF THE RIGHT TO KEEP EVERYONE AT HIS DUTY AND
EXPRESSING HIS INTENTION TO INTERVENE WHERE JUDGES “DO NOT UNDERSTAND
THE DEMAND OF THE HOUR”[245]
* * * * * * *
I do expect one thing--that the nation give me the right to intervene
immediately and to take action myself wherever a person has failed
to render qualified obedience and service in the performance of the
greater task, a matter of to be or not to be. The front and the
homeland, the transport system, administration and justice must obey
only one idea, that of achieving victory. In times like the present, no
one can insist on his established rights, but everyone must know that
today there are only duties.
_I therefore ask the German Reichstag to confirm expressly that I
have the legal right to keep everybody to his duty and to cashier or
remove from office or position without regard for his person or his
established rights, whoever, in my view and according to my considered
opinion, has failed to do his duty._[246] And that just because
among millions of decent people, there are only a few exceptions. For,
today, one single common duty takes precedence over all rights, even
the rights of these exceptions. It does not interest me therefore
whether, in the present emergency, leave, etc., can be granted or not
to an official or employee in every individual case, and leave which
cannot be granted should not be saved up for a later date.
_If there is anybody who is entitled to ask for leave, it would be
first of all only our front soldiers and secondly the men and women
workers who supply the front._
For months I have been unable to grant leave to the eastern front, and
nobody at home, whatever his office, should dare therefore to insist on
his so-called “established right” to leave. I myself am justified to
refuse because since 1933 I have not taken 3 days’ leave--a fact which
is probably not known to these individuals.
_Furthermore, I expect the German legal profession to understand
that the nation is not here for them but that they are here for the
nation, that is, the world which includes Germany must not decline in
order that formal law may live, but Germany must live irrespective of
the contradictions of formal justice._ To quote one example, I fail
to understand why a criminal who married in 1937, ill-treated his wife
until she became insane and finally died as a result of the last act of
ill-treatment, should be sentenced to 5 years in a penitentiary at a
moment when tens of thousands of honorable German men must die to save
the homeland from annihilation at the hands of bolshevism, that is, to
protect their wives and children.
_From now on, I shall intervene in these cases and remove from office
those judges who evidently do not understand the demand of the hour._
The achievements and sacrifices of the German soldier, the German
worker, the farmer, our women in town and country, that is, the
millions of our middle classes, imbued only with the idea of victory,
demand the corresponding attitude on the part of those who themselves
have been called by the people to protect their interests. In times
like the present there can be no sacrosanct individual with established
rights but all of us are merely obedient servants of the nation.
Deputies!
Men of the Reichstag!
A tremendous winter battle is behind us. The hour will strike when
the fronts will come out of their rigidity, and then history will
decide who was victorious in this winter--the aggressor who insanely
sacrificed his masses or the defender who simply held his position.
During the past few weeks I have read continuously about the violent
threats of our enemies. You know that my duty is far too sacred to me
and that I take it far too seriously ever to be careless.
_Whatever man can do to forestall dangers, I have done and shall
continue to do in future._
PARTIAL TRANSLATION OF DOCUMENT NG-102
PROSECUTION EXHIBIT 75
FOUR COMMUNICATIONS, MAY-JUNE 1942, CONCERNING THE
AUTHORITY FOR THE CONFIRMATION OF SENTENCES[247]
1. A Letter from Schlegelberger to Hitler, Enclosing a Proposed Decree
for Hitler’s Signature
The Acting Reich Minister of Justice
Berlin, 6 May 1942
My Fuehrer!
Repeatedly, and finally in the session of the Greater German Reichstag
on the 26 April of this year, you expressed that the front and the
homeland require the unrelenting punishment of criminals, and that the
judgments of the courts which do not meet these requirements cannot be
tolerated.[248]
In order to accelerate the setting aside of such decisions, you, my
Fuehrer, created the extraordinary objection to the Reich Supreme
Court.[249] With the help of this legal resource the judgment against
Schlitt, which you mentioned in the session of the Reichstag, was
quashed within 10 days by sentence of the Reich Supreme Court. Schlitt
was sentenced to death and executed at once. I believe, however, that
the desired aim could be achieved even better and quicker if the Reich
Minister of Justice, by means of an authority of confirmation, were
given decisive influence on the award of punishment.
If you, my Fuehrer, could decide, by signing the attached draft of a
decree, to transfer to the Reich Minister of Justice this right of
confirmation for cases in which you do not want to decide yourself, the
following would be achieved thereby:
The entire administration of penal justice be placed under the
supreme control of the Reich Minister of Justice as far as the award
of punishment is concerned. He could then achieve an increase of
insufficient punishment in every case.
The Reich Minister of Justice would pronounce the nonconfirmation
either himself or, more probably, in view of the approximately 300,000
penal sentences per annum, through the presidents of the courts of
appeal.
In case of a nonconfirmation, the president of the court of appeal
would himself fix the punishment or bring about another judicial
decision on the measure of punishment.
The Reich Minister of Justice could, as soon as it is obvious that a
criminal court cannot master a case, transfer the matter to another
court.
It is guaranteed that the Reich Minister of Justice will immediately be
informed about all important criminal matters. The attorneys general
who, according to the draft, would have to propose the nonconfirmation,
are under his direction. I can absolutely rely on the insight and
willingness to serve of the 35 presidents of the courts of appeal.
Should they ever lack the necessary severity, I myself would pronounce
the nonconfirmation.
Therefore I believe that, if you, my Fuehrer, will agree to the draft,
I could assume the responsibility that the punishment awards of the
courts will no longer lead to complaints.
Heil, my Fuehrer!
[Signed] DR. SCHLEGELBERGER
[Draft]
Decree by the Fuehrer on the authority for Confirmation in
Criminal cases of 1942.
I
As far as I shall not decide myself, in my capacity as holder of the
supreme judicial power, I charge the Reich Minister of Justice to
regulate within his jurisdiction the confirmation of sentences passed
by special courts and other penal courts. In this connection the
following is ordered:
II
I authorize the Reich Minister of Justice to pass on to the presidents
of the courts of appeal the right to refuse confirmation to the amount
of penalty following a valid judgment upon application of the general
prosecutor in as much as such nonconfirmation of the sentence is not
pronounced by the Reich Minister of Justice himself.
III
In case the president of the court of appeal denies confirmation of
the sentence, he will return the case to the same or another court for
another award of penalty. In case it was wrongly denied or disregarded
that the culprit was a people’s parasite [Volksschaedling], brutal
criminal, dangerous professional criminal or a dangerous immoral
criminal, he is also entitled to quash the sentence for award of a just
penalty and to pass the case to the same or another court for a new
trial and judgment.
IV
Upon demand of the general prosecutor, the president of the court of
appeal, by calling in two judges as advisers, can also commute the
sentence in free procedure himself.
V
The court to which the president of the court of appeal has passed
on the case will, with the aid of the prosecutor, decide by writ or
judgment in a proceeding that will be freely determined by itself.
VI
In case of urgent reasons dictated by public interest, the Reich
Minister of Justice can pass a pending trial on to another court within
his jurisdiction.
VII
The Reich Minister of Justice, in accordance with the Reich Minister
and chief of the Reich Chancellery and the head of the Party
Chancellery, is entitled to issue instructions for the execution of
this decree.
1942
THE FUEHRER
The Reich Minister and Chief of the Reich Chancellery
2. File Memo by Lammers Concerning Discussion with Hitler’s Subject
Decree on Authority for Confirmation of Sentences
To RK. [files] 6832 u. 6833 B.
Fuehrer Headquarters, 11 May 1942
Subject: Draft of a Fuehrer decree on the authority for
confirmation in criminal cases
1. Miss Buege: (_a_) The enclosed letter[250] of the Reich
Minister of Justice, dated 6 May 1942, addressed to me and also the
enclosed notes of the Under Secretary Dr. Schlegelberger are to be
registered under Rk., (_b_) the original copy of the Fuehrer
decree is to be placed into a separate file.
[Handwritten] carried out.
[Initial] BG
11 May
2. I have presented the matter to the Fuehrer on 7th instant and
recommended the suggested decree. It seems to me indeed the only and
safe way to master insufficient punishment in legal sentences.
The Fuehrer agreed to the decree in principle but could not decide on
signing it; moreover, suggested whether it was not appropriate to soon
fill in the position of Reich Minister of Justice and to leave the
reform in question as well as the other reforms also to the new Reich
Minister of Justice.
3. Under Secretary Dr. Schlegelberger, who visited me here, has been
briefly informed by me on 8th instant about the state of the affair.
He told me that he had already interested the Reich Marshal [Goering]
also in the draft of the decree, and that he [the Reich Marshal] had
promised him to speak in favor of the decree.
Under Secretary Dr. Schlegelberger further stressed the fact that the
decree would naturally lose all its value for him if the confirmatory
authority would pass to party offices (Party Chancellery, Gauleiter).
To that I replied that one could perhaps consider to listen to the
party before using the confirmatory authority. With regard to this
question on 9th instant, Under Secretary Schlegelberger presented the
notes of the same day to me. (Rk. 6833 B). He promised me also to send
more material to the case in hand.
4. Office--Please enclose files for the filling of the position of
Reich Minister of Justice!
5. To UStS. Kritzinger with the request for consultation conferences
for further adaption of this matter. (Support of chief of Party
Chancellery, contact with the Reich Marshal.)
[Handwritten]
Rk. 1527 H 41
Mg. Rk. 553 Bg. 41
3. Letter by Bormann Opposing Schlegelberger’s Proposed Decree and
File Note by Lammers Concerning It
[Stamp] Reich Chancellery 8457 B 13 June 1942 Fi
[Handwritten] Submitted with Reich Chancellery 7964 B 13 June
NATIONAL SOCIALIST GERMAN WORKERS PARTY
PARTY CHANCELLERY
The Chief of the Party Chancellery
Fuehrer Headquarters
10 June 1942
[Stamp] See affair of 10 June--III C--Ku.
[Stamp] Submitted through adjutant
[Handwritten] Duly submitted to the Reich Minister
13 June
Settled R 15 June
[Initial] F [Ficker]
[Initial] L [Lammers]
To: The Reich Minister and Chief of the Reich Chancellery
Dr. H. H. Lammers
Berlin W 8
6 Voss-Strasse
Subject: Draft of a Fuehrer decree concerning the authority for
confirmation [of sentences] in criminal cases
Reference: Your letter dated 21 May 1942--Reich Chancellery
7010 B.
Dear Dr. Lammers:
During the session of the Reichstag held on 26 April 1942, the Fuehrer
requested the Greater German Reichstag expressly in consideration
of the exigencies of the war, for the authorization to take all
measures he deemed expedient without being bound by the existing legal
provisions.[251] The Fuehrer’s choice of [expressing his desire] this
way shows the importance he imputes to sovereign acts of the State
[Hoheitsakten]. It is not proper to limit pronounced sentences--which
have a certain effect on legal affairs--in their guiding effect on
legal and factual circumstances by questioning their irrevocability
through further unpredictable interventions, after all lawfully
provided legal resources have been exhausted. This applies to a special
degree to the judgments of courts which, in every case, represent a
considerable intervention into the personal conditions of the people
involved and, moreover, have a certain effect on the entire nation,
be it as an intimidation or as a satisfaction with the strong,
order-establishing hand of the State. Moreover, the arrangement of
the life of the people requires that the further development of legal
conditions starts from certain fixed basic conditions which cannot be
shaken from any side, and that the security of the law be guaranteed.
If the Fuehrer expressly requested the right of direct intervention
over all formal legal provisions, then this emphasizes particularly the
importance of the modification of a judicial sentence.
The proposal made by the Reich Minister of Justice, however, is likely
to obliterate the impression of this authorization, and to impair its
importance. However, this would be an inevitable consequence of the
transfer of the correcting authority to the presidents of the court
of appeal and of the strong decentralization originating thereby. The
proposed decree of the Fuehrer would be nothing more than another
effort to correct insufficient sentences as has been repeatedly
undertaken before by the Reich Justice Ministry. In addition to the
analogy provision of article 2 of the Reich criminal (penal) Code, I am
especially thinking of the extraordinary objection, the nullity plea,
the participation of the public prosecutor in civil proceedings, the
public parasite decree, the decree against desperate criminals, and
the provisions concerning dangerous professional criminals and immoral
criminals.
[handwritten] Justiz 3
Despite all these provisions we were not in the position to silence the
complaints on judgment inadequate in consideration of the exigencies
of war. We observed again and again how these provisions were applied
as mildly as possible, and not at all with the required readiness for
responsibility and strictness which actually would have been possible.
It is my conviction that the proposed decree of the Fuehrer will
have the same fate as the measures whose execution remained with the
administration of justice.
It must be expected that the presidents of the courts of appeal will
shrink from an intervention into the independence of the judge,
of which they still have the old conception. They will bring the
judge concerned on to the right path, not so much guided by their
own conviction, but in order to get him to pass a sentence which
will satisfy the threatening criticism. Even less, however, can one
expect, for the same reason, more rigorously enhanced measures against
an obstinate or incapable judge. Therefore, we must not expect the
elucidating and guiding decisions hoped for in the material and
personal field, the value of which lies first of all in the educational
influence on other judges and on the public, but only measures or
indications limited to individual cases.
In a formal respect, the following misgiving should be stressed: With
the wording provided under paragraphs I and II of the draft, the
Fuehrer literally deprives himself to a vast extent of the right of
correcting sentences. In all cases which are brought to the Fuehrer’s
knowledge only after the president of the court of appeal or the
Minister of Justice has decided on the confirmation of a sentence,
this decision was taken “by order of the Fuehrer.” Even with regard
to the authorization by the Reichstag there would not be any room for
the Fuehrer’s decision, since by the proposed decree he would have
renounced the authorization legally assigned to him, in favor of the
Minister of Justice or even of the president of the court of appeal.
Because of these considerations I am not able to agree with the draft
of a Fuehrer decree as suggested by Under Secretary Schlegelberger.
In view of the importance which I assign to these fundamental
objections, I have refrained for the time being from showing the
additional objections I have to the structure of the decree and its
individual provisions.
Heil Hitler!
Yours very truly
[Signed] M. BORMANN
[Typed] (M. BORMANN)
1. During yesterday’s conference with Under Secretary Schlegelberger
I informed him of the basic ideas in Reichsleiter Bormann’s letter
dated 10 June 1942. Schlegelberger would appreciate a copy of this
letter. I do not think that there are objections to this. However, I
wish to answer Reichsleiter Bormann’s letter and perhaps make my reply
available to State Secretary Schlegelberger.
[Initial] KR [Kritzinger]
26 June
2. a. UStS. Kritzinger
b. RKabR. Dr. Ficker
With request for conference
[Initial] F [Ficker]
26 June
Berlin, 25 June 42
[Initial] L [Lammers]
4. File Memo Noting Postponement of Proposals for Judicial Reform Until
a New Reich Minister of Justice is Appointed
Following report to the Reich Minister [Lammers]
To RK. 8457 B Berlin, 26 June 1942
Subject: Confirmation of sentences in criminal cases
1. The Reich Minister does not consider to pass on the letter written
by Reichsleiter Bormann to State Secretary Schlegelberger and intends
to discuss the matter orally with Reichsleiter Bormann on occasion.
2. Submitted to the Reich Minister according to instructions.
Reichsleiter Bormann’s objections are aiming essentially at two points:
[Initial] L [Lammers]
_a._ He does not expect much from a delegation to presidents of
courts of appeal as these would not interfere with sufficient energy;
_b._ He fears the Minister of Justice’s proposal would flatten the
impression made by the Fuehrer’s Reichstag speech.[252]
As to the doubts of a more editorial nature expressed at the end of the
letter, it should be possible to remove them by another formulation,
which will also be necessary for other reasons. This reediting might be
taken in hand as soon as an agreement exists on the fundamental points.
3. In file Bormann.
[Initial] F [Ficker]
Turn over
[Reverse side]
1. Discussion with Reichsleiter Bormann took place.
We agreed that further handling of all proposals regarding justice
reform must be reserved to the new Minister of Justice.
2. _a._ To UStS. Kritzinger. [Initial] KR [Kritzinger] August 3
_b._ To RKabR. Dr. Ficker. [Initial] F [Ficker] July 31
Who are requested to take notice.
3. To files.
Fuehrer Headquarters, 28 July 42
[Initial] L [Lammers]
TRANSLATION OF DOCUMENT NG-387 PROSECUTION EXHIBIT 400
REPORT FROM DEFENDANT ROTHENBERGER TO DEFENDANT SCHLEGELBERGER, 4 JULY
1941, CONCERNING CRITICISM OF JUDGES BY THE SS PERIODICAL, THE DRAFT
LAW ON “ASOCIALS”, AND THE LACK OF SUITABLE CANDIDATES FOR JUDGESHIPS
The President of the Hanseatic Court of Appeal
3130 E-1a/3/ (3x)
Hamburg 36, 4 July 1941
_Registered_
To: Under Secretary Dr. Schlegelberger
Reich Ministry of Justice,
Berlin
Subject: Report on the general situation
Reference: Your No. Ia 11012/35
I
The article “Mental Black-out” in the “Schwarzes Korps” of 17 April
1941 had a disastrous effect on the morale of the judges; in the last
paragraph of this article the actions of the judges are compared
with the conduct of a people’s parasite, who takes advantage of the
black-out to commit his crimes. If the judges read the correction in
the bulletin of the Reich chamber of attorneys of 20 May 1941 and then
see there is no vindication of the judges to the public, a further
increase of the displeasure among the German judges can scarcely be
imagined.
II
I was confidentially informed of the draft of the law of April 1941
concerning the treatment of asocial elements.[253] According to this
law the custody of these persons is exclusively in the hands of the
Reich Security Main Office, and so the sterilization insofar as the
decision of this office as to whether a person is asocial has been
declared binding on the eugenics court. I consider so extensive a
disregarding of a judicial authority very dubious, and I propose that
the local court consisting perhaps of a judge, a physician, and a
representative of the police should decide whether an asocial element
should be kept in lifelong custody or should be sterilized.
III
Day before yesterday I undertook a careful review of the courts of
Bremen, and I learned anew that there is in Bremen a complete lack of
suitable younger men to become judges. One of the reasons for this
lack was the fact that the customary manner in which lawyers had
hitherto applied for the judicial career has been made impossible
because only up to 4 years of their activity as attorneys may be
included in their service age for purposes of calculating salaries. As
the Finance Minister has agreed, for the annexed eastern territories,
three-quarters of the period of service as an attorney may be added
to the service age for purposes of calculating salaries. I propose
that this provision shall also be issued for Bremen, because of the
special circumstances. In view of the whole development of the judicial
situation in Bremen, I should consider it very regrettable if the
Bremen lawyers were deprived of the opportunity of becoming judges.
[Signed] ROTHENBERGER
TRANSLATION OF DOCUMENT NG-395
PROSECUTION EXHIBIT 74
REPORT FROM THE PRESIDENT OF THE COURT OF APPEAL IN HAMM, 7 JULY 1942,
CONCERNING THE ALARM AMONG JUDGES CAUSED BY HITLER’S REICHSTAG SPEECH
OF 26 APRIL 1942, AND CERTAIN ACTIVITIES OF THE GESTAPO AND THE NAZI
PARTY AFFECTING LEGAL MATTERS
The President of the Court of Appeal
File No. 3130 I
To: The Reich Minister of Justice,
Berlin W 8
Hamm (Westphalia), 7 July 1942
Telephone 1780-1786
Subject: General situation, Decree of 9 December 1935--Ia
110/2
Enclosures: 2 copies of the foregoing report.
3 copies of a report by the senior judge of the local
court [at] Haltern, of 22 June 1942.
1. The Fuehrer’s speech at the meeting of the Reichstag on 26 April
1942 has, as far as the administration of justice is concerned,
caused alarm among the judges of my district. Uncertainty in the
administration of justice was threatening, since the Fuehrer’s
reproaches--except in the Oldenburg case, particulars of which were,
however, not given either--were held in general terms, and the question
on what reasons the Fuehrer based his reproaches could not be answered.
As soon as possible, I called together the judges of the court of
appeal and informed them, and through the presidents of the district
courts, the judges of their courts, and of the local courts that I,
too, did not know the reasons for the Fuehrer’s reproaches, but that
it was the duty of all of us to examine ourselves earnestly as to the
extent to which he was to blame; the judges were to continue to do
their duty and were to hold themselves responsible to the Fuehrer and
to their own conscience; the sentences passed by the courts of this
district have always been severe, except for some cases, and this
standard should be kept up in the future. It has been reported to me
that my words have had a calming effect; the administration of justice
in this district continues to proceed along the proper lines, and
according to my observations the standards of sentences have remained
the same.
Among the population, the Fuehrer’s critical remarks about the
administration of justice have given rise to spitefulness as well as
to sympathy for the profession of the judges. At the moment the matter
is hardly talked about, but it has not been forgotten. Above all, it
is painful for the judges that the number of persons is increasing who
do not believe that the judges pass unbiased sentences. In my opinion,
endeavors must be made to restore the confidence of the people in the
unprejudiced administration of justice. At any rate all things have
to be avoided which could further that impression. I have asked the
attorney general to take measures to prevent the sentence demanded by
the prosecution from leaking out previously. It is quite natural that
if it becomes known before the trial that the prosecutor will demand
the death sentence with the approval of the Ministry of Justice, it
will easily be believed that the judges are prejudiced.
According to my observations, information about the sentence which
the prosecutor will propose with the approval of the Reich Ministry
of Justice, is disturbing to the judges, even if mentioned only in
the course of conversation, which is understandable on account of
the authority of the Ministry of Justice and the position of the
judges. Even old, experienced judges find their unprejudiced state
of mind upset. But according to my observations, the judges are
absolutely ready to accept general directives and to follow them in the
administration of justice. Therefore, I think it highly desirable that
the directives which are issued at the conferences of the presidents
of the courts of appeal in the Reich Ministry of Justice as well as
those given some days ago at the meeting of the attorneys general in
the Reich Ministry of Justice should be submitted in writing to the
presidents of the courts of appeal for the information of the judges. I
think this will greatly assist the administration of justice.
2. The number of death sentences passed within the area of this court
of appeal shows the following development. There were--
1940 27 death sentences.
1941 52 death sentences.
1942 (first 6 months) 45 death sentences.
The increase is due to wartime conditions and to the extension of the
sphere of the death sentence by the law of 4 September 1941. Of the
death sentences passed this year, 6 were passed for offenses against
war economy, 10 for sexual offenses, 8 for crimes of violence, and 20
for theft.
On an average, 5 to 6 weeks elapse between the pronouncing of the
sentence and the execution.
3. Since last May, police officials have appeared frequently in the
criminal court in order to report to their superior office about
the proceedings. The president of the district court at Dortmund has
reported the following cases to me:
“(1) In the middle of May 1942, a habitual criminal was
tried before the criminal court and was sentenced to death.
A Kriminalsecretaer [detective] of the local criminal police
attended the trial as an observer. He told the president
himself, and expressly pointed out during the trial, that the
Reich criminal police office had instructed him by teletype to
attend. I heard that this criminal police official telephoned
the prosecuting attorney before the trial and told him that
he could imagine why he had been sent. The official had a
conversation with the prosecutor during the deliberation of the
court. During this conversation he declared that the police
would have no reason to take action if an order for security
detention would be made. He indicated that his presence was
connected with the speech of the Fuehrer. I have neither spoken
to the prosecutor nor have I had any reason to ask for a written
statement. For the president who informed me vouches for the
truth.
“(2) At the end of May, a trial was held before the criminal
court against another criminal who was condemned to death. An
official of the criminal police was summoned as a witness.
Before the opening of the trial this official submitted to
the court a letter from the Reich criminal police office, in
which the local police authorities were requested to inform
that office of the result of the trial--especially whether the
demand for the death penalty, which was to be expected, had been
complied with--and of the mitigating circumstances mentioned
in the court’s findings in the event that a punishment other
than the death penalty be awarded. Unfortunately, the president
failed to take note of the exact contents of the letter. The
official attended the proceedings after having been interrogated
in the witness box.
“(3) At another trial held before the criminal court, at which
the death sentence had been demanded but was not passed, a
criminal police officer who had been summoned as a witness took
the court’s findings down on a sheet of paper.
“(4) An SS member in uniform, holding the rank of a sergeant,
attended a trial before the Special Court in which, among other
persons, the wife of a Landrat was involved. He asked for
permission to be present at the hearing and said that he was
coming from _Kassel_ on behalf of a police or security
authority.
“(5) An official of intermediate rank of the local secret State
police office participated as observer at another out-of-town
trial of the Special Court lasting several days. No further
details are known.
“(6) A detective from Bochum participated as witness at
the trial of a juvenile perpetrator by the Special Court
in Bochum. He compared the penalty imposed by the Special
Court with another penalty--a term of imprisonment for many
years--allegedly imposed the day before by the penal chamber at
Bochum upon a juvenile perpetrator (because of poisoning?). On
this occasion he remarked, with regard to the sentence handed
down by the penal chamber, that the police had but to examine
whether there was a motive, in order to interfere. This remark
was made after the trial.”
4. As the attorney general has already reported to the Reich Ministry
of Justice, the Secret State Police recently did not commit two
civilian workers from the Ukraine who had shot a forest keeper in the
Dortmund district court area to the court for prosecution, although
the court had issued a warrant for arrest and the Special Court was
prepared for an immediate conviction. They were hanged later on by
the secret State Police. Furthermore, it was reported to me by the
local court at Haltern that on 19 June 1942 a Polish laborer was
hanged in its district by the police because he was said to have
had sexual intercourse with a German woman. I enclose a copy of the
report dated 29 June 1942. If the rumors are true that the Fuehrer
has transferred capital jurisdiction to the police to this extent, it
would be desirable to inform the judges and public prosecutors of this
arrangement through official channels, as it is assumed that the police
are engaged in unauthorized and unlawful activity. Publications in the
daily newspapers give the impression that these were executions of
sentences which had been legally imposed.
5. The office of racial policy [Rassenpolitische Amt] of the NSDAP
issued a treatise on “National Socialistic policy with regard to
foreigners” for official use by the Party of which I received
confidential information. It contains regulations for marriages between
Germans and members of other nations which are of importance with
regard to the exemptions of foreigners from the marriage clearance
certificates which are subject to the approval of the presidents of
the courts of appeal. I propose to ask the office of racial policy
to submit this treatise to all presidents of the courts of appeal.
Applications for exemptions from marriage clearance certificates have
assumed large proportions within my district. The procedure which I
have adopted is in accordance with the principles of the treatise
“policy with regard to foreigners.”
6. The district of this court of appeal has been very disturbed by
air-raid alarms at night during recent months, until about two weeks
ago. Air raids occur only occasionally now, keeping within moderate
limits. In a number of places the Wehrmacht has started employing male
inhabitants to replace the antiaircraft personnel. Older age groups
have been trained for this purpose in daily courses from 1900 till 2200
hours. 15 officials and employees of the court of appeal have been
detailed for this.
[Signed] SCHNEIDER
TRANSLATION OF DOCUMENT NG-417
PROSECUTION EXHIBIT 23
SUMMARY BY DR. CROHNE OF THE REICH MINISTRY OF JUSTICE
CONCERNING GOEBBELS’ SPEECH TO THE MEMBERS OF THE
PEOPLE’S COURT, 22 JULY 1942
_Report on the Speech of Reich Minister Dr. Goebbels before the
Members of the People’s Court on 22 July 1942_
Reich Minister Dr. Goebbels stated at the outset that he had been asked
by President Thierack to address the members of the highest German
court of justice. He had gladly complied with this request. What he had
to say had a special political aspect owing to the Fuehrer’s approval
of his comments, the draft of which he had submitted to the Fuehrer.
The civil servants of the administration of justice had, owing to the
nature of their work, always been subject to public criticism. Also
today decisions of the courts were criticized and called alien to
the spirit of the German people. One must not reply to the reproach
that justice had failed by protesting that always only certain cases
of wrong decisions had been singled out and the great number of the
good and correct judgments had been disregarded. We are dealing here
with a principle, i.e., of a wrong attitude of many judges who could
not redeem themselves from their old ways of thinking. The one-sided
teaching at the universities is to be blamed for it to a considerable
extent and also the fact that the judge lived secluded in his
professional surroundings and knew too little of life itself. Decisions
alien to the spirit of the German people had, however, very detrimental
effects especially during wartime. All must be done to remedy the
situation before it is too late for the administration of justice. No
professional men except the judges had heretofore had the guaranty of
being irremovable. Even generals could be removed. A powerful state
could not renounce the right to remove officers unsuitable for their
office because of inaptness or other reasons. This had to apply to the
judge as well. The idea of the irremovable judges he went on to say,
originated in an alien intellectual world, hostile to the German people.
The Minister then referred to individual judgments that nowadays
were unbearable. He cited in the first instance the case of the Jew
Leo Sklarek. (In the Minister’s speech stated by error is the case
of “Barmat.”) He could not understand that this notorious Jewish
profiteer, who after his emigration to Prague had been a spy, had
only been sentenced to 8 years’ penitentiary (the judgment of the
People’s Court of justice of 16 April 1942 was delivered for having
incited to commit high treason, based on paragraph 92 of the Penal
Code). The judgment which the court of Eichstaedt had delivered, in
the case of a man killed in action in the East having been insulted,
was also untenable. A woman upon receipt of the news of his death who
had uttered, “Thank God,” had been acquitted by reason of impossible
justification. The Minister also referred to Moelder’s letter.
While making his decisions the judge had to proceed less from the
law than from the basic idea that the offender was to be eliminated
from the community. During a war, it was not so much a matter of
whether a judgment was just or unjust but only whether the decision
was expedient. The State must ward off its internal foes in the most
efficient way and wipe them out entirely. The idea that the judge must
be convinced of the defendant’s guilt must be discarded completely. The
purpose of the administration of the law was not in the first place
retaliation or even improvement but maintenance of the State. One must
not proceed from the law, but from the resolution that the man must
be wiped out. The criminal must know beforehand that he will lose his
head, should he assault the foundations of the State. These drastic
measures must not be left to offices outside of justice but are the
duty of justice. The big sacrifices of life which must be made by the
best part of the people during the war give us a special reason to
treat the offender with all ruthlessness. We must bear in mind that
during the winter 1941–1942 every criminal had better billets in the
prisons than 3½ million German soldiers. Today we have an entirely
different conception of certain offenses which in normal times would
not have been considered serious at all, but are now regarded as
deserving death penalty; (theft during an air-raid alarm, robbery
of handbags during black-out hours, and heavy penalties in cases
of listening to foreign wireless stations this action being mental
self-mutilation). Justice ridiculed itself by placarding summons to
missing persons prior to their being pronounced dead, as everybody knew
the missing person in the East or even in any enemy’s country could not
report at all.
In this connection the Minister went on to speak about the Jewish
problem. He went on to say that if still more than 40,000 Jews whom we
consider enemies of the State could freely go about in Berlin, this was
solely due to the lack of sufficient means of transportation. Otherwise
the Jews would have been in the East long ago. The officers of justice
must recognize their political task also while attending to the
Jews. To feel sorry for them would be a blunder. It was an untenable
situation that still today a Jew could protest against the charge of
a president of the police who was an old Party member and a high SS
leader. The Jew should not be granted any legal remedy at all nor any
right of protest.
In his final comments the Minister pointed out again that the State
must apply all means to ward off its foes at home and abroad. During a
war it was therefore necessary that the idea of the expedient decision
took the first place in justice. The people had to be possessed with
the will of absolute self-maintenance. He recalled the words which
the Fuehrer had said on 30 January 1933 to him on their way from
the “Kaiserhof” to the Chancellery of the Reich upon entering the
chancellery, “Nobody will ever get me out of here alive.”[254]
After this speech President Thierack expressed his thanks to the
Minister for his fundamental comments and said that the Minister had
greatly assisted him once before and asked him to repeat his inspiring
and directing instructions also in future.
[Typed] [Signed] DR. CROHNE
23 July
TRANSLATION OF DOCUMENT NG-071
PROSECUTION EXHIBIT 98
SECRET REPORT OF THE CHIEF OF THE SECURITY POLICE AND SD, 3 SEPTEMBER
1942, CONCERNING “THE CONTROL OF PENAL JURISDICTION” AND THE REACTIONS
OF JUDGES THERETO
5 September 1942
[Stamp] Reich Chancellery
The Chief of the Security Police and of the SD Office III
Berlin SW 11, 3 September 1942
Prinz-Albrechtstrasse 8
[Stamp] Secret!
Personal--Submit immediately
Reports from the Reich No. 314
1. To be secretly submitted to the attention of the Reich Minister.
[Initial] L [Lammers]
10 September
2. Circulation--
Cabinet Counsellor Dr. [illegible]
Cabinet Counsellor v. Stutterheim
Cabinet Counsellor Dr. Ficker
3. To be filed.
Berlin, 5 September 1942
This report is strictly for the addressee personally and contains news
material transmitted unreviewed in order to retain its character of
fresh news.
_ADMINISTRATION AND LAW_
_Reports on the Control of Penal Jurisdiction_
Under the impression made by the Fuehrer’s Reichstag speech of 26
April 1942 and by the general criticism of penal jurisdiction, the
former leadership of the Reich Ministry of Justice[255] had, according
to additional clauses already previously existent, been persuaded to
reinforce the so-called control of penal jurisdiction. This control
consisted in an extensive participation of the Ministry and of the
supervising judicial officials, and presidents of the district courts
of appeal and of the district courts in the sentencing-activity of
the individual criminal judge on the principle that, especially in
criminal cases with a political implication, the judge must receive
assistance when pronouncing a sentence. Actually, it involved then a
substantial extension of the already existing consultative obligations
of the public prosecutor to the Ministry and, on the other hand, the
introduction of a consultative obligation in the relations of the
courts to the Ministry as well. According to numerous reports from
the whole territory of the Reich, these measures have met with an
extremely _dissentient reception among juridical circles_. The
complete break with the hitherto prevailing conception of judicial
independence which the control of penal jurisdiction means, is said
to have been, to a certain extent, very unfavorably commented upon
within the judiciary. In certain cases, this is even said to have led
to outspoken expressions of opinion against the National Socialist
State which allegedly wished to suppress judicial independence in
order to surrender justice to a right of control by political offices.
The origin of this attitude on the part of certain judges in this
respect is always the conventional conception of judicial independence
according to which the judge was exclusively subordinated to the
written law and therefore did not need to follow any directives even of
the most general character, that may be issued by the administration of
justice with reference to any precise line of conduct in jurisdiction.
_Politically enlightened judges have_ likewise, according to the
reports, viewed _the control of jurisdiction with misgivings_.
In this, they have indeed not so much perceived a danger to judicial
independence, for it was clear to them that its implication up to now,
namely, exclusive subordination of the judge to the law, has been
deeply altered to suit the National Socialist juridical philosophy, as
in the fact that the obligations to the National Socialist ideology
must have precedence over the obligations to the law if jurisdiction
was not to be in opposition to the political objectives of the nation’s
leadership. Since the execution of law in the National Socialist State
has important _political_ tasks to fulfill, a certain influence
on the judges must be made possible in the form of instruction on
important political viewpoints which the individual judge cannot grasp
outright by himself.
As reported, however, these judges have likewise given an unfavorable
reception to the method of control of penal jurisdiction, for it
amounts only to an attempt with inadequate means to solve from a
wrongly selected principle _the_ very problem posed to the
administration of jurisdiction, namely _the uniform political and
ideological_ adjustment of the judge.
The intention of the administration of justice to gain influence
on legal jurisdiction through the channel of the Ministry and the
presidents of the district courts of appeal and of the district courts
was therefore doomed to failure. The indispensable prerequisite for
the possible success of such a gain of influence would have been that
the officials exercising the control base their action on a unified
political principle. As shown by experience, however, this has by no
means been the case.
On the whole, the objective pursued by the leaders, who have been
at the head of the Reich Ministry of Justice so far, in introducing
the control of jurisdiction in order _to reduce_ the far from
negligible number of _wrong sentences, can only be reached under
certain conditions_. Indeed certain sources of error have been
removed with great difficulty. Without active handling of the basic
problem of the political and ideological adjustment of the judiciary
itself, a real improvement [Gesundung] of the execution of law cannot
be expected in the long run.
The following example extracted from a series of similar cases is
characteristic of the situation created by the introduction of the
control of jurisdiction.
Roaming about at night at his place of domicile for several months, a
Polish civilian workman stole from gardens and dwelling places money,
numerous articles of underwear and clothing, as well as other articles
of daily utility. As the competent special court established, he had
carried this out under cover of the black-out.
In line with provisions, introducing reporting as a duty, the president
of the competent district court of appeal had brought the case by
telephone to the knowledge of the Reich Ministry of Justice. In its
reply to the telephone message the Ministry advised the following day
that the death penalty would probably not be deemed necessary for the
Pole. That in any case the public prosecutor would receive explicit
instruction before opening of the court hearing as to the penalty which
should be asked against the Pole. The Ministry thereupon instructed the
public prosecutor to propose 10 years of particularly rigid confinement
in a place of detention. The court ruled accordingly.
As reported, the hypotheses under which this verdict took place, as
well as the degree of the sentence itself, met with lively criticism
on the part of politically awake lawyers. On the one hand it caused
concern that by the direction of the administration of justice in
such a manner the judge might from the outset be relieved of personal
responsibility for his verdict. In as much as in a very great number
of cases it becomes known to the court that the public prosecutor is
being supplied with instructions regarding the application in criminal
proceedings, it merely needs to comply with the request of the public
prosecutor, thereby evading embarrassment which might possibly result
from mistrials through reference to the concept of the Ministry. On
the other hand, the case as described illustrates that the success
of such a control stands and falls with the persons to whom such
control is entrusted. If confusion prevails in the Ministry itself
as to the line which the administration of justice should follow in
regard to the Pole, there naturally is no guaranty that mistrials are
excluded through the concept of control. The verdict in the case under
consideration must be considered a faulty judgment; because under
prevailing conditions there is no justification for the leniency which
it expresses on behalf of a Pole who commits crimes under the cover of
the black-out.
In connection with this and a series of similar cases reports of judges
whom this development fills with serious concern stressed over and
over again the _need_ for informing the _judiciary about the
great goals of the leaders of the State_. At the present time there
is but a comparatively small number of judges who make an earnest
endeavor to analyze the State political necessities as such, and the
political foundation of the administration of justice. Unfortunately,
it has so far been a fact that any civil servant in the administration
who has just passed his second state examination in law has been more
fully informed about the political goals of the State leaders and the
political opportuneness than perhaps any president of a senate.
Also, this circumstance should be recognized as an important reason
for the failure so far experienced in the administration of justice.
Consequently, there exists a greater need than ever for bringing the
judges much closer to the problems of State leadership and of State
necessities as they arise newly all the time due to the war.
In the opinion of others, the former heads of the Reich Ministry of
Justice likewise failed to fully realize their intent of remedying the
lack of judgment of some judges in the case of decisions on penal cases
with political aspects by controlling the administration of justice. It
was said that in meetings held in the Ministry, the presidents of the
district courts of appeal had been instructed to explain in official
meetings to the judges under their jurisdiction how serious the
situation is which is now encountered in the administration of justice,
and in that connection to discuss examples for faulty verdicts, among
other things also dealing with such which the Fuehrer himself has
criticized. Some of the presidents of the district courts of appeal
and of the district courts had discharged this task in such a manner
that they manifestly refrained from expressing an opinion of their own,
thereby making known that they themselves held a different opinion.
This led to increased insecurity on the part of many judges.
An extension of report requirements yielded in some districts results
along similar lines. It was partly made compulsory for judges at local
courts, for example, to report every case of even moderate import to
the president of the district court who on his part passed it on to the
president of the district court of appeal and he to the Ministry. In
some districts every judge at the local court was held to make a report
each session on all cases which had come up. According to another
report all judges of a district court of appeal had met to consult on a
verdict which a judge of the local court was about to pronounce.
Going by the Fuehrer’s criticism of some individual verdicts, the
Ministry occasionally makes reference as to the Fuehrer’s opinion in
principle--so it is reported--in regard to certain delinquencies,
urging upon the presidents of the district courts of appeal to acquaint
their judges with the Fuehrer’s attitude as it more or less was assumed
to be. This, too, resulted, in part, in completely confusing the
concepts of the judges. To cite an example, a verdict was discussed at
a meeting of the presidents of the district courts of appeal held in
the Reich Ministry of Justice, according to which a woman, whose child
had fallen into a vessel of hot water while playing and scalded itself
fatally, had been sentenced to 6 weeks of imprisonment. The Fuehrer
criticized that case because the loss of the child was hard enough
a punishment for the mother and that, therefore, court proceedings
reflected the concept of justice in form but were not in harmony with
the natural concept of justice. When this case was passed on by the
presidents of the district courts of appeal and of the district courts
to the court judges, it was, in part, understood to mean that _in
principle_ it was the Fuehrer’s intent that women should be punished
very mildly only.
The following case is cited as an illustration of the practical result
of an interpretation of the Fuehrer’s will along such lines.--A woman
had planned to give to the judge, who was considering a civil complaint
made by her, a parcel with foodstuffs, a few days before the case
came up in court for a hearing. Thereupon, the judge initiated court
action against her because of an active attempt to bribe a judge.
Bearing in mind the purported will of the Fuehrer that mild sentences
should be imposed upon women and using such will as justification, the
instruction was given that the woman was not to be punished at all.
Only at a later date was this instruction modified in that it was ruled
that a small fine was to be paid.
In connection with these and similar cases it is reported that it is a
very doubtful principle to bring to the knowledge of the judges what is
merely the purported or assumed will of the Fuehrer. Naturally this is
bound to lead to constant conflicts for the judge. Considering things
from all angles it is evident from the numerous reports which have
come to hand that the so-called _directing of the administration
of justice_ met with but a _limited amount of the success_
at which it had aimed. Aside from the numerous doubts which arise as
a matter of principle, _the amount of work involved to make this
directing practically possible is not commensurate with results so
far achieved_. Compulsory reporting, which met with a considerable
amount of criticism by the public prosecution even before introduction
of the directing policy, has been considerably increased after the
introduction of the directing policy and now extends even to the
presidents of the district courts of appeal and of the district courts.
This is said to have brought about a very considerable delay and
burden in work which can neither be reconciled with the simplification
and acceleration nor with the number of personnel at this time still
available to the judiciary. Over and above this, the duty to submit
reports has considerably paralyzed the power of decision and readiness
to assume responsibility on the part of the judges, in as much as in
many instances they are relieved of responsibility by other instances,
as a result of which they feel to have been deprived of their essential
task as judges.
EXTRACTS FROM THE TESTIMONY OF
DEFENDANT SCHLEGELBERGER[256]
_DIRECT EXAMINATION_
* * * * * * *
DR. KUBUSCHOK (counsel for defendant Schlegelberger): I am now
starting on a new group of questions. Do you wish me to start on it
before the recess?
The prosecution charges you with directing the administration of penal
law through the Reich Ministry of Justice. Please state your views.
DEFENDANT SCHLEGELBERGER: Concerning these questions, we must
differentiate between the position of the public prosecutor and that of
the judge. The public prosecutor is an administrative agency dependent
upon the instructions from his superior agencies. The judge is
responsible merely to the law and his own conscience and judgment. The
question to what extent and under what prerequisites the prosecutor has
to report to his superior agency has been laid down in administrative
regulations. The more important the individual question, the higher the
agency the opinion of which is requested. It has therefore always been
a matter of course that the importance of penal cases according to the
case itself, or according to the punishment which is to be expected,
has to be reported to the higher authority. I notice the suggestion
was approved and an instruction was issued, an instruction which as
far as it concerned a matter which was being dealt with at the trial
always had to be interpreted in such a way that in the last analysis
the public prosecutor had to make his decision dependent on the course
of the trial. In 1939 Guertner--I myself had no part in these matters
at the time and I don’t know what part Freisler played--pointed out
to the public prosecutor that they should see to it that a great
difference between the demand for a sentence of the prosecution and the
actual sentence pronounced by the judge be avoided.
[Recess]
Q. Witness, we were discussing the guidance of the administration of
criminal justice. Please continue with your explanation.
A. Before the recess I had referred to a decree by Guertner which
required a constant connection with the courts in order to avoid a
discrepancy between the plea of the prosecution and the final verdict.
May I continue on this point?
I should like to assume that this decree or this order finds its
definite reason in the fact that at that time a large number of new
laws had been promulgated for which precedence in sentences did not
exist and could not exist. Only gradually it was possible, with regard
to these laws, to form a firm foundation based upon sentences and
opinions of the supreme judicial authority. Frequently, therefore,
surprises occurred if the prosecution in applying the law had a
definitely different position from the opinion of the Tribunal. The
purpose of that decree was to avoid this ambiguity as far as possible,
and to reduce these differences to the least possible measure, also
concerning the extent of punishment, which depended on the findings
of the court. That quite apparently, as a matter of course, could
only be achieved by a conference before the trial. The reports
submitted by the prosecution, by the president of the Kammergericht
on 3 January 1942, and from the same year by the president of the
district court of appeals at Hamm, revealed that some misuse had taken
place. It is stated there that the prosecutor after the presentation
of evidence--that is to say, during the proceedings--had pointed out
to the court what sentence with the approval of the Ministry he would
demand, and in so doing created the opinion in the court that he
expected that sentence and that penalty.
From this report can be seen that the presidents of the district
courts of appeal quite rightly considered this behavior a misuse. The
report by the president of the Kammergericht I had not seen until now.
I do not know what steps were taken after that report was received
by Freisler. Maybe this is a case again, one of these cases, where
important matters had been neglected by him.
The report from the president of the district court of appeal at Hamm
I remember very clearly. I had made up my mind to put this matter on
the agenda of the next meeting of the presidents of the district courts
of appeal. These meetings had the express purpose to discuss such
questions which had been raised in the reports. Owing to the fact that
I left my office soon thereafter, there was no longer any opportunity
for me to carry out these intentions.
Q. The two reports you mentioned were submitted by the prosecution
as Document NG-445, Prosecution Exhibit 73 and Document NG-395,
Prosecution Exhibit 74 with the Documents NG-505 and 508, Exhibits 71
and 72.[257] The prosecution also charges you with having influenced
the jurisdiction of the judges. I ask you to state your position with
regard to these documents.
A. In the course of the examination today I was compelled on various
occasions to explain to what degree the Party intended and tried to
wrest various fields from the administration of justice and turn
these competencies over to the police. In July 1941 that question was
especially acute because there was an attempt to take away from the
administration the prosecution of Jews and Poles. The opposition based
its arguments on sentences which revealed a certain ignorance on the
part of the judges of conditions of actual life. Under any form of
government one has heard complaints about the fact that the judges were
far removed from the facts and experiences of daily life. In the old
Reichstag there was hardly any debate on matters of justice without
these complaints, and such complaints naturally coming up during the
war and in the course of many events the complete changes of all
conditions of life and national economy found plenty of nourishment.
It was the duty of the central agency to acquaint the judges with such
general points of view and to demonstrate to them what the influence of
temporary conditions and recent conditions would have to be upon the
policy of criminal law. Apart from that, one had to be vigilant against
that danger which I have described, namely, that certain fields of the
administration of justice could be wrested from them.
At that time sex crimes of Poles were very frequent. The reason for
that could possibly have been that these laborers who had been brought
into Germany, in many cases, came into a living community with the
families of the employers, that the husbands were usually at the front,
and that the Poles themselves, that is, the greater part of the Poles
themselves were in Germany without their families. The ground for sex
offenses, therefore, was conditioned by these elements, and some judges
did not recognize that.
In the documents submitted by the prosecution one case is mentioned
which was tried before the Penal Chamber Lueneburg. It is the case
of a sex crime committed by a Polish agricultural laborer. That
defendant was granted extenuating circumstances, because, and I
quote, “He did not have the same restraint toward female co-workers
as a German agricultural worker would.” That opinion apparently was
untenable. The Reich Supreme Court sharply rejected it. It was also
very dangerous at the same time, because if reasons of that kind had
become known to Hitler there would have arisen a new grave danger to
the entire administration of justice. Therefore, I saw cause to find a
different job for this judge who apparently was not aware of prevailing
conditions. Cases of this nature and many others which may not have
been quite as wrong but could have made a certain impression gave cause
and reason for a type of propaganda which promised a great deal of
success and that made me write that letter of 24 July 1941 to the court
authorities in the provinces where I pointed out that in the cases
of definitely criminal elements a sexual crime as a rule should be
considered according to the legal provisions and regulations as a crime
to be punished with death. The actual documentary background for that
letter is to be found in the document of the prosecution. Therefrom
one can see in what cases the police may have corrected the sentences
by the judges, and one cannot overlook the fact that such frequent
interventions on the part of the police to improve on the sentences by
the judges represented a signal for the much desired event of taking
over the power to punish by the police, and the man in charge of the
Ministry conscious of his duty had to take that into account.
Document NG-508, which my defense counsel has mentioned, is the
reproduction of a passage from a Hitler speech concerning the
administration of justice; it was a speech before the Reichstag; and
that concerned in general the necessity of severe punishment in times
of war; and according to my duty I brought this speech to the attention
of the judges.
* * * * * * *
Q. In Document NG-102, Prosecution Exhibit 75,[258] you made the
suggestion for a confirmation of sentences by the presidents of the
district courts of appeal. Under what circumstances did you make that
suggestion?
A. This suggestion to have the sentences by the courts confirmed is in
close causal connection with this practice of transferring prisoners
to the police.[259] Hitler’s Reichstag speech of April 1942 left no
doubt in my mind that these interventions would increase, and my
suggestion was to the effect that Hitler should delegate the right,
the prerogative which he reserved for himself, to the Ministry of
Justice and to the presidents of the district courts of appeal. If
this had been achieved, the whole matter would have remained in the
hands of the administration of justice, for even the applications for
nonconfirmation according to my draft were supposed to be made by
the attorneys general who in turn had received instructions from the
Ministry.
My letter in regard to this question of confirmation shows again what
means I had to use. I could not reveal the real reason if I did not
want to be unsuccessful from the very beginning. Bormann, however, in
this case saw through my reasons. In a letter from Bormann to Lammers,
Bormann writes, this attempt was again a confirmation of the will of
the administration of justice to keep these matters in their own hands,
as, for example, the question of analogy [analogy provision of article
2, Reich Criminal (Penal) Code], or the extraordinary objection or the
nullity plea; but in the Ministry of Justice there was not the will to
apply these means with the necessary severity. Above all, Bormann saw
clearly that if my draft had become law, Hitler’s right of intervention
would have been destroyed with one stroke. All the presidents of the
district courts of appeal were supposed to pronounce their decisions in
Hitler’s name, and if they had confirmed in the name of Hitler, Hitler
could no longer have attacked their opinion. If I may use a common
expression, I can say that Bormann, the fox, did not fall for the trap.
In that connection, perhaps, I may point out two things. Lammers’
remark in the document shows that I refused to have the Party drawn
into this confirmation procedure basically. Furthermore, the document
shows how I had to go about such things. These confirmation sentences
existed in the case of military courts, that is also in the case of air
force courts which were subordinate to the Commander in Chief of the
Air Force, that is Goering. Thus, I could count an understanding for
my suggestion in the case of Goering, and, therefore, I secured his
support through a special oral report on my suggestion.
* * * * * * *
_CROSS-EXAMINATION_
* * * * * * *
MR. LAFOLLETTE: Doctor, I would like to go back, now, to
Prosecution Exhibit No. 75, which is Document NG-102. Briefly that was
the series of letters and correspondence beginning in May 1942, which
contains your proposed method of handling clemency matters after
Hitler’s speech of 26 April 1942. Do you remember?
DEFENDANT SCHLEGELBERGER: Yes, it is a question of confirming
the sentences.
Q. Yes. On 6 May 1942, you wrote Dr. Lammers--addressed the letter to
Reich Minister Dr. Lammers--
“Dear Sir:
“During our last conversation, I already told you that I
intended to propose to the Fuehrer the introduction of a
confirmation of judgment passed; a plan to which you agreed.”
I am leaving out a sentence; I don’t think it is necessary. It’s in the
record here.
“Today I am transmitting to you an open letter to the Fuehrer
along with draft of the decree requesting them to the Fuehrer.
“Copies for your files are attached.”
Then on the same day, 6 May 1942, you wrote to Hitler, and you started
the letter, “My Fuehrer,” and you stated, among other things:
“If you, my Fuehrer, could decide by signing the attached draft
of a decree, to transfer to the Reich Minister of Justice this
right of confirmation for cases in which you do not want to
decide yourself, the following would be achieved.”
Then it lists a technical analysis of the decree, as you see it. Then I
go to the last paragraph of your letter addressed, “my Fuehrer,” of 6
May 1942, which reads in the English text:
“Therefore, I believe that, if you, my Fuehrer, will agree to
the draft, I could assume the responsibility that the punishment
awards of the courts will not lead to complaints any more.”
Now that followed the speech of Hitler on 26 April 1942. Do you recall
writing that letter?
A. Yes.
Q. On 12 May 1942, in this same exhibit and document, you write again
to Dr. Lammers, and this time you say:
“Dear Reich Minister Dr. Lammers:
“With regard to your request, I am sending you today some
material from which, I think, follows that a Reich Minister of
Justice controlling criminal justice cannot dispense with the
possibility not to confirm a sentence. I may add that when the
draft of the decree was already under way to you, Reich Marshal
Goering explained to me in detail at a visit in Karinhall that
he in the sphere of Wehrmacht justice, sector Luftwaffe,
could only overcome the difficulties of heterogeneous legal
administration by this confirmation, and that in his opinion it
was definitely necessary to introduce the confirmation also for
civil justice.”
Then I am going to skip a sentence and I’d like to read the last
paragraph of the letter:
“I would be especially grateful to you, dear Reich Minister
Lammers, if you would present the matter to the Fuehrer again. I
have the hope therewith that, if the Fuehrer rejects the present
handling of criminal justice, and on the strength of your
argument, knows that the confirmatory proceeding is the only and
safe remedy, he will not withhold this remedy from the Reich
Minister of Justice.
“With best wishes and Heil Hitler,
“Yours very sincerely, signed Dr. Schlegelberger.”
As I recall your testimony, it was that Hitler had been very abusive to
you in his speech of 26 April 1942, and that after that you had made up
your mind to resign. Is that what you testified to?
A. Yes. I have said that I wanted to make it clear whether these
attacks were directed against the administration of justice, and in
that case I was determined to let matters drift toward a break and to
withdraw from my office.
Q. Now I know that you said in 1941 that Goering had said to you that
he would never forgive you and Dr. Guertner for centralizing justice,
is that correct?
A. Yes.
Q. And now when you desired to have a conversation with Goering, would
you go to Karinhall or would he come to the Reich Ministry of Justice,
as a rule?
A. No, no. In such cases when Goering wanted to speak to me, he called
me up and asked me to come and see him. Goering at that time dealt with
a case in which he wanted to have a legal opinion. That was why he
wanted to talk to me. On that occasion, we came into that conversation.
Q. Did Goering agree to support your plan at this conversation you had
with him between 6 and 12 May 1942, or do you recall?
A. I take the liberty to explain that. I told him what my plan was, and
he told me, “But that is the only possibility to handle these things.”
[He said] I could not get anywhere in my field if I did not have that
right of confirmation.
Q. Now in May 1942--about that time during May and June 1942--Reich
Marshal Goering would have had the capacity to be a very strong ally,
did he not?
A. That could be stated in that general way, and now in retrospect I
could not state for any particular month because the relations between
Hitler and Goering changed continuously. And with Goering it might have
been similarly. It depended upon the question in what temper Hitler was
met.
* * * * * * *
b. Defendant Rothenberger’s writings on judicial reform and
his guidance of judges in his district
TRANSLATION OF DOCUMENT NG-075
PROSECUTION EXHIBIT 27
CORRESPONDENCE BETWEEN THE REICH CHANCELLERY AND HITLER’S ADJUTANT, MAY
AND JUNE 1942, MENTIONING THAT HITLER HAD CONSIDERED “NOTEWORTHY” THE
ROTHENBERGER MEMORANDUM ON JUDICIAL REFORM
The Reich Minister and Chief of the Reich Chancellery
Reich Chancellery 6837 B
Fuehrer Headquarters, 11 May 1942
Subject: Memorandum regarding judicial reform
1. When I reported to the Fuehrer on 7 May, the Fuehrer informed me
that he had received a memorandum regarding a judicial reform from a
well known lawyer which appeared noteworthy to him. He will arrange to
have this memorandum sent to me.
2. On 8 May, State Secretary Dr. Schlegelberger casually remarked,
while visiting me, that he believed that the memorandum which the
Fuehrer mentioned was drawn up by the president of a district court of
appeal, Rothenberger.
3. Miss Buege: Enter (Rk.) Letter remains here.
4. To the personal adjutant of the Fuehrer Major General Schaub.
_Fuehrer Headquarters_
Dear Mr. Schaub,
The Fuehrer told me when I reported to him on 7 May, that he had
received, sometime ago, a memorandum regarding a judicial reform from a
well known lawyer, which appeared to him worthy of consideration. The
Fuehrer did not mention the name of the lawyer. The Fuehrer promised to
have this memorandum sent to me. I should be much obliged to you, if
you would take care of this matter.
Heil Hitler!
Yours obediently
(Name of the Reich Minister)
5. Resubmitted on 25 May 1942.
[stamp] Resubmitted
Office 25 May
[Handwritten] see Reich Chancellery 8230 B
[Initial] L [Lammers]
Reich Chancellery 8230 B/ 8 June 1942
1 enclosure
The Fuehrer and Chancellor of the German Reich
CS--The Personal Adjutant
NSKK--Major General A. Bormann[260]
Berlin W 8, Reich Chancellery
Fuehrer Headquarters, 7 June 1942
[Initial] KR [Kritzinger]
To Reich Minister Dr. Lammers
Berlin
Subject: Reich Chancellery 6837 B
My very dear Reich Minister:
In reply to your letter of 11 May, addressed to SS Gruppenfuehrer
Schaub, enclosed please find the memorandum which you requested
concerning the judicial reform drawn up by President of Senate Dr.
_Rothenberger_, Hamburg.
Heil Hitler!
[Signed] A. BORMANN
Personal Adjutant of the Fuehrer
Certified: [Signed] SCHROEDER
Enclosure
Reflections on a National Socialist Judicial Reform
I
Since 1914 the world has found itself in one of the greatest
revolutions of history. National socialism, which was born during
the First World War, is the pivotal point of this revolution. Having
welded the German nation together politically from 1918 to 1933
into a national community it is about in the present World War to
“organize” Europe anew and to create a new world philosophy. It goes
without saying that during such a “world revolution” certain fields
of human endeavor cannot keep pace. Among such fields belongs, in
particular--along with all the arts and sciences--jurisprudence. The
first decisions in history were always made by men and nations in
the elementary struggle for power. But the aim of this tremendous
reorganization of the world is that for the first time in history not
power, but justice will be victorious. In periods of transition this
justice must prevail in different ways from the ways it chooses in
untroubled times of peace. The scope of a peacetime administration of
justice is often too narrow to do justice to present events. Thus, a
historical revolution such as the present one will, of necessity, bring
about a crisis in law, and particularly a crisis in the administration
of justice; and the extent and intensity of this crisis depend on the
extent of the revolution. A crisis is customarily defined as a state
of the most violent intensification of the symptoms of a sickness,
which is followed by a decisive turn, either toward the worse, to
final descent--death in the case of man, and dissolution in that
of a public institution--or the pendulum swings to the other side
after the climax of the crisis, toward recovery. The present crisis
in the administration of justice today is close to such a climax.
A totally new conception of the administration of justice must be
created, particularly a National Socialist judiciary, and for this the
druggist’s salve is not sufficient; only the knife of the surgeon, as
will later be shown, can bring about the solution.
II
What is the present state of German justice? Complete and clear fronts
are drawn--on the one side are all the activist forces in Germany,
particularly the old guard of the Party, to whom today’s justice is a
hindrance in the pursuance of their aims. Natural friction occurs daily
between elementary law, such as it is experienced by the activists, and
the law as it is administered by the legal authorities of today. In
every German village, and in every German city, modern jurisprudence,
as the representative of the law, especially the judge and his verdict,
have lost their influence considerably in the ancient struggle
between might and right. We find that the pronouncement of justice
does not enjoy in our totalitarian state the authority it deserves. On
the other side are the representatives of justice who complain about
this condition, namely, about the extensive elimination of judicial
procedures; the lack of authority of the verdicts; the revision of
lawful judicial sentences by police measures; the dwindling confidence
of the people in their judges; the slight regard generally accorded
the judges’ position in the press, on the air, and in films, etc. The
German judge, the true representative of justice, stands alone and
unprotected, presuming upon his so-called independence, above all,
justice; and the German judges have hitherto not succeeded in gaining
the _confidence of the Fuehrer_. It is true, German justice
has become, organizatorially speaking, a united Reich justice, and
all efforts are being made to create a National Socialist justice.
Jurisprudence strives--if only with varied success--to fit into the
National Socialist ideology. A close relationship based on trust,
however, does not exist between the Fuehrer and German justice, nor
between the German nation and the NSDAP which represents the people on
the one hand, and German jurisprudence on the other. This distinguishes
the present crisis from all the previous ones. The fact that
jurisprudence has been greatly criticized at all times lies in the very
nature of the problem. It has even been stated that criticism follows
the pronouncement of justice as inevitably as the shadow follows the
body. From all periods of history, and from all civilized countries,
cases can be cited which originate in the excitement over an injustice
which a judge may have done to a person (Plato’s Apology; Voltaire’s
writings in connection with the trial of Calas; Zola’s J’accuse). He
who goes to the judge believes that he is in the right. If he triumphs,
he considers it a matter of course; if he is defeated, he thinks he has
been wronged. However, the present condition is basically different.
Justice today cannot turn to anyone. It has not gained so far the
confidence of the leaders nor that of the NSDAP, and it is about to
lose the confidence of the people. But without such confidence, without
a connecting link with the leaders and with the people, justice is
condemned to a final decline. It requires this confidence as man
requires the air he breathes, in order to be able to live.
III
In a situation of this nature those who are responsible
for the administration of justice have a historical
responsibility--_self-recognition_. There is a painting by Raphael
in one of the rooms of the Vatican, the “Stanza della Segnatura,” which
represents the goddess of justice [Justitia] with her three genii--the
genius of truth, holding her torch on high; the two-faced genius of
wisdom; and her third companion, holding up a mirror to the goddess,
the genius of self-recognition. Why does the Fuehrer, the Party, and
the people criticize the administration of justice? What are the
causes? What suggestions can justice itself make to the Fuehrer, in
order to eliminate this condition?
1. Occasionally, the opinion is expressed that an authoritarian
state can tolerate _no_ strong judiciary _whatsoever_. The dynamics
of national socialism exclude, it is said, the static which is the
very essence of justice. The independent judge is a sad remnant of a
liberalistic epoch, and there is no real justification for a separate
ministry of justice in addition to a national ministry of the interior
and the police. Also the National Socialist Reich came to power without
the support of law; indeed, it did so _despite_ the law. Consequently,
it can solve its future problems without the help of the law, or at
least without a strong legal system. History shows time and again--and
the period since 1933 has confirmed it in many spheres of public
life--that progress is a series of contradictions. White follows
black. It is understandable that many old Party comrades raise the
cry: fight against the judge _per se_; and they do so as a reaction
against the legalistic state of the 19th century, against the neutral,
unpolitical administration of justice, against judges who were trained
unpolitically, who were taught to follow closely to the letter of the
law, and whose independence finally resulted in the separation of the
people and the state. Two aspects of this reaction are valid.
_a._ The bourgeois-liberalistic state which, under the influence of
the doctrine of the division of power, empowered the courts to control
legislation and administration, has finally been superseded by the
unity of the Reich. The courts are merely an organ of the state, as
the arm is only a limb of the human body. However, this arm can never
set its own head aright. Law must _serve_ the political leadership.
Justice is not control of the leadership, neither is it protection of
the individual _against_ the state; rather, it is a function of the
community which should serve to _regulate_ the community life. The
functions and the jurisdiction of the judge, in particular his relation
to other departments, will therefore have to be redefined. But before
this decision is reached, which is of such far-reaching consequences
for the entire development of our Reich, the administration of
justice itself has to be reformed radically in the interests of the
Reich itself. This decision must not be influenced in any way by the
experiences which the leadership has had with the law during the
past 10 years. Otherwise, the danger exists that an unorganic and
planless undermining from within, and a gradual fragmentation of the
administration of justice will occur--as they have already set in,
because the administration of justice has failed. The criterion,
however, for the functions of justice and particularly of the judge in
the National Socialist Reich must be a justice which meets the demands
of national socialism. Therefore, suggestions must be submitted to the
Fuehrer which clearly define what such a justice, and particularly a
National Socialist judge, must be like.
_b._ In the second place, this reaction of “antagonism toward law”
is justified because the _present moment_ absolutely demands a rigid
restriction of the power of law. He who is striding gigantically
toward a new world order cannot move in the limitation of an orderly
administration of justice. To accomplish such a far-reaching revolution
in domestic and foreign policy is only possible if, on the one hand
all outmoded institutions, concepts, and habits have been done away
with--if need be, in a brutal manner--and if, on the other hand
institutions that are in themselves necessary but are not directly
instrumental in the achievement of a great goal and which, in fact,
impede it, are temporarily thrust to the background. All clamor
about lawlessness, despotism, injustice, etc., is at present nothing
but a lack of insight into the political situation. The question is
solely: Is a strong judiciary incompatible with the National Socialist
authoritarian state (Fuehrerstaat) _per se_, that is, permanently, or
only _temporarily_?
2. He who is used to thinking along historical lines and who
understands the essence of national socialism will have no doubts as to
the answer. Justice has at all times been the strongest pillar of every
great civilized state. Great empires fell when despotism and corruption
took the place of justice and of order; great empires rose to heights
beyond imagination when the central figure, the actual creator, the
embodiment of the concept of justice--the judge--represented authority.
It was accepted as a matter of course during the classical age of the
Imperium Romanum that the most exalted and honored place in the state
was occupied by the praetor along with the consul--not to mention the
enormous cultural influence that Roman praetorian law has exerted for
centuries on the whole of Europe. The judge was the highest official of
the state also during the height of the British Empire. Italian fascism
also recognized the importance of this question for the preservation
of its empire by agreeing with me on the following propositions at the
German-Italian Conference held in Vienna in March 1939.
Proposition 5
“The judge, in contrast to other civil servants, derives his
authority directly from the state leadership.”
Proposition 8
“Among civil servants the judge occupies a unique position in
the organization of both states.”
What a far-reaching influence was exerted on the Germanization process
of the East in the early Middle Ages by the highly developed city
laws, particularly by the law of Magdeburg and Luebeck! The law and
therefore the judge has always been one of humanity’s most prominent
representatives of civilization. Also the aim of the gigantic struggle
for existence in which the German people are at present engaged is to
replace power and despotism by justice and order (the new order) in
Europe and the entire world. There is no order without a strong law.
Likewise the inner worth of the National Socialist Reich consists in
the fact that every citizen does not think of it, his Reich, as the
embodiment of the interests of individual pressure groups or parties,
but of his sense of justice. In the eyes of the German people, more
so than in the eyes of many other peoples, justice is and remains the
most treasured gift; it is not the illusion of “equal rights for all,”
but is in line with the old Prussian saying, “to each his own.” The
superficial view that an authoritarian state cannot tolerate a vigorous
judiciary is therefore wrong. The better the inner strength of a state
is consolidated, the better is justice assured and the stronger is
therefore the judiciary. Only a state based on external force must be
afraid of a strong judge, and history has shown time and again that
nothing leads faster to self-annihilation than a paucity of laws and a
feeble administration of justice. The judge is the representative of
justice. It is he who in the eyes of the people is the guarantor of
justice, not the professional jurist nor the public prosecutor, nor the
attorney; because he, the judge, administers justice, uninfluenced by
friend or foe, unbiased and unswayed by the quarrels and tendencies of
the day, not prey to human foibles. With him rests the decision over
life and death; he intervenes decisively in every sphere of human life
and in the most treasured possessions of a people such as liberty,
honor, family, work, land, etc. Here the people expect an unflinching
representative of a strong law who seeks the truth and justice with
intense devotion and a clear mind. Nor can a political leader, even the
best, nor a Landrat nor a Gestapo official be at the same time a judge.
They all perform completely different functions; they must direct,
organize, plan, and look into the future. Their decisions too must be
just, but the idea of justice is not the guiding principle of their
vocation. They all require a counterpoise in the form of a magistrate
of whom the great Ulpian says: “Priests are we, because we foster
righteousness and preach the knowledge of what is good and just.”
Corruption, personal selfish interests, vanity and craving for power
which happen to play an important part in human life, cannot--apart
from having a rigid political leadership--be better prevented than
through the fact alone that a strict judiciary authority exists.
3. And this is where the awareness of their mission and the historical
obligation begins for the men responsible for the German judges.
They are to see that the fire of justice never quite dies not even
during the most difficult times of a great world revolution. The
German ideals of justice embodied in a strong judiciary must--since
it is timeless--be fitted into the future construction of a National
Socialist Reich. This, however, is possible only when the fire
continues to glow. Political situations require constant measures of
opportuneness, and every stubborn resistance to it--“on principle” or
“fundamental deliberations”--is senseless. But one must be constantly
aware of the danger that the very “convenient” putting aside of a
regulated administration of justice conceals the _tendency of
habit_. It is the task of a new German justice to prevent such a
development. This cannot be achieved, however, by bewailing the present
condition or even by resigning herself to it. She must look into the
mirror and ask herself: _What can I do to put at the disposal of the
Fuehrer a justice and judges in which he may have confidence?_
IV
Theoretically, the constitutional position of the German judge,
especially his position in respect to the Fuehrer, is not difficult to
solve. Overcoming the division of power the Fuehrer is not only the
legislator and executioner of power, but also the _supreme judge_.
Theoretically, the authority to pass judgment is therefore only his.
If he could carry out this authority also in practice, there would be
no more judiciary problem and no legal crisis. But he cannot do so.
Therefore, he has transferred his authority to the individual judge,
that is, directly without any further administrative channels. The
judge acts differently from any other official who is a member of a
sometimes rather long official hierarchy, by virtue of a decree issued
to him _direct_ by the Fuehrer. This is the meaning of freedom of the
bench. Every other private Party official or public office has to
abstain from all interference or influence upon the judgment. This
superior position corresponds to the obligations of the judge to find
justice exclusively according to National Socialist ideas. _Because a
judge who is in direct relation of fealty to the Fuehrer must judge
“like the Fuehrer.”_ In order to guarantee this, a direct liaison
officer without any intermediate agency must be established between
the Fuehrer and the German judge, that is, also in the form of a
judge, the supreme judge in Germany, the “_Judge of the Fuehrer_.” He
is to convey to the German judge the will of the Fuehrer by authentic
explanation of the laws and regulations. At the same time he must upon
the request of the judge give binding information in current trials
concerning fundamental, political, economic, or legal problems which
cannot be surveyed by the individual judge.
That only the best are considered worthy of a privileged position such
as the judge holds can also be seen from another reason. The former
legislation was suspicious and therefore casuistic toward the judge. It
attempted to regulate every conceivable fact of law, thereby degrading
the judge to a subsumptive mechanism. The Fuehrer as legislator,
however, knows that a living people’s law which can be understood
by every citizen and which is to reach a truly just sentence in the
individual case can be established only by an elastic legislation with
far-reaching opinions of the judge. The multicolored and versatile
life is therefore fettered as little as possible by the law today.
Every Reichsgesetzblatt teems with such general terms as--normal
sentiment [of the people], dignity and etiquette, honesty, National
Socialist ideology, etc. This loose binding to the law of the judge
without an excellent judiciary personality is, however, a contradiction
in itself and will forcibly endanger justice, unity, and security
of law considerably. National Socialist free method of legislation,
creation of a living people’s law, and quality of the judge therefore
necessarily act and react on one another.
Repeated theoretical demands for a National Socialist personality as
judge are not enough. One must recognize reasonably and clearly that
the present type of judge--no reproach should hereby be made to an
individual judge--in his historic development, his training, and his
selection does not and cannot meet this demand. And just as reasonable
are the practical deductions to be made from this.
V
The _historic development of the German judiciary_ is in short the
following:
At the same time at which the Roman law, which in no way whatever
was connected with the German national consciousness, was introduced
in Germany (15th century), the freely elected German _people’s_
judge was replaced by the _civil servant_, the professional
judge. He studied at first at Italian universities, and later--up
to the present time--his method of thought was influenced by legal
reasoning in accordance with Roman law. Originally he, though an alien,
was nevertheless, in his capacity as the highest official of the
individual sovereigns, an authority in the country; thus, 19th century
liberalism, with its hypertrophy of laws, its plethora of courts,
its wild pursuit of litigation, and its juridical thinking, led to a
steady increase in the number of judges, and indeed to a debasing,
vulgarization, and “bureaucratizing” of the judges. In a liberal state
these judges became independent simultaneously in the sense of a
complete detachment from people and state. The authority of the judge
can be determined by two entirely different means: Once by granting
him a superior position and by letting only few qualified men with a
strong personality become judges--then the authority and the so-called
independence will as a matter of course come out to a certain extent as
a by-product--or else the judge’s position will be formally converted
under severe stress into a bureaucratic civil service position in which
he will attempt to carry through his conception of law by being granted
independence through legal guaranty. Prussia, and with her the rest
of the German states, consequently the second German Reich, took the
latter way.
National socialism will have to proceed on the first path. Because
the nature of national socialism is in direct contrast to this
degeneration of the old German, nonbureaucratic people’s judge which
occurred historically through foreign influence. National socialism
will revive the concept of German judge as prototype the same as it
created the concepts of Fuehrer, followers, folk-community, honor,
loyalty, farmer, soil. It will also have to clear the concept of German
judge as prototype of human society from all that is foreign to him,
all that has stuck to him in the course of the developments of the
last centuries, and ask itself the question: What does a German mind
understand by the term “judge”?
According to the concept which every German has of a German community
the judge is a fundamental type of human life. Just like the farmer,
the soldier, and the various types of trade, the judge too belongs
to every community developed beyond the most primitive state. The
characteristics of the prototype of judge are--
1. That he is _independent and not confined to directions_. A judge who
has to ask someone else for the sentence is just as much a caricature
as a farmer without a plough and a soldier without a weapon. Upon the
fact that the judge can use his own discretion is founded the magic of
the word “judge.”
2. And a second item is in our description of a German community.
The judge has a strong inner _authority_. He is the interpreter of
law who is superior to all other servants of the state in knowledge,
experience, and humanity. That the German people have a fine feeling
for a strong, responsible, independent judge for the decision of its
interests, can be seen among other things from the following: In
spite of all judiciary crises and in spite of every reproach against
the judges and their decisions, national socialism has never called:
Dismiss the judges, we do not wish or require judges any longer! The
discontented have always turned only against the present ones and
have demanded better. Neither the laborer nor the farmer, neither the
businessman, nor the tradesman has ever voiced the desire to appoint
for the settlement of their arguments in place of a judge an official
who is bound by instructions. However, something entirely different has
occurred, with the Fuehrer a man has risen within the German people
who awakens the oldest, long forgotten times. Here is a man who in his
position represents the ideal of the judge in its perfect sense, and
the German people elected him for their judge--first of all, of course,
as “judge” over their fate in general, but also as “supreme magistrate
and judge.” The mail received in the Fuehrer’s office in one day would
prove this. No wonder, that next to this man, the German bureaucratic
judge who represents so little of long established judiciary grandeur
had to lose further authority. The special interest we have in this
election of the Fuehrer to supreme judge in the united Reich is the
acknowledgement of the _true_ judge. This does not infer a renunciation
of the concept of the judges itself, as is sometimes concluded, but it
does infer a renunciation of the bureaucratic judge. The spontaneous
recognition of the Fuehrer as supreme judge of the German people is
essentially due to the fact that the Fuehrer wholly independent,
separate from any influence or person, not supported by any machine of
state but solely by the loyalty of the people fights for the rights
of the German people within and without its borders, that is, all
qualities which personify a true judge.
3. And thirdly, there will be only _one_ judge in our community. Just
imagine! There is a judge on every corner of a market place which we
see before us. One feels that 3 of them are too many, while there may
safely be 4 tailors, even 40. That they might not have enough work
would not fundamentally disturb our imagination. But 4 judges. The
symbol that there is only _one_ right, only _one_ justice as presented
so clearly in the single judge, would be obliterated. One would begin
to compare as in the case of 4 stores--where do I get better right?
The authority of the judgment suffers if more judges than needed are
present.
Practical considerations also make a _radical reduction of the number
of judges_ imperative. During the next decades Germany simply will
not have enough young students who have the requirements for the
profession of a judge, who have the inclination and aptitude to become
a lawyer, and especially a judge, in such an active period. The
thorough laying off of personnel which must take place in the entire
German administration after the war is even more urgent and justified
in the case of judges, as this reduction is in line with the essentials
of judges, they being the representatives of the one _law_ and the one
_justice_.
VI
The historic evolution of the German judge is also in conformity
with his _training_ and his _selection_. To decide what is right
does not require constructive or scientific thinking but above all,
it presupposes the art to appraise human beings, to understand human
emotions and the ability to comprehend all phenomena of life. Training
methods of today lead to abstract thinking, to materialism, and to an
ignorance of the ways of the world. The theoretical scientific method
taught nowadays in universities is apt to imbue the student after
being first introduced to a juristic line of thought with abstract
conceptions and with a system of logic which makes it very difficult
for the student to find his way later on in a world of facts. The
outcome is the abstract lawyer, subject to so much criticism who does
no longer recognize human beings but only conceptions, moreover, it is
also the source of ever recurring disagreements between politically
trained National Socialists and lawyers. Very often there is a world of
difference between them. The point from which all training reforms must
go out must be paragraph 20 of the Party program, which reads:
“The curriculum of all educational institutions must be adapted
to _practical life_.”
In detail this means--
1. Substitution of the logical, abstract method of thinking by a
_method of conception taken from practical everyday life_. No
“lecture” with a deductive training method, given by a professor to
a hundred or more “listeners,” but some kind of working community of
perhaps twenty to thirty students who will be introduced inductively
to the system--that is empirically from life--by a teacher endowed
with scientific, practical and educational talents. These teachers are
either university teachers who carry out at the same time the duties of
a judge or administrative lawyer, or else judges in office who teach
simultaneously at a university. The selection of about 200 qualified
leaders who must be held in readiness at the end of the war for a
fundamental reeducation of our youth is the most pressing problem. Only
such men are able to guide the productive energies of the beginners
into the right channels, and so prevent a false, abstract education as
well as the cutting of lectures and the cramming down of lessons.
2. These working communities to be established in universities must
ever maintain close contact with practical work (court, administration,
Party). The strict division practiced heretofore--at first 3 years’
university training exclusively, then 3 years’ practical work--has
provided them with a dangerous, theoretical “preinoculation.”
3. A man who chooses to be a judge and who therefore administers
justice to all phases of human endeavor must know life itself, the
real and practical life. Therefore, anyone who after passing the
probationary state examination, at the approximate age of 26, has
worked for 2 years in the judicial sphere as a candidate with some
court--as has been customary heretofore--has not the “calling” of a
judge. He has only become acquainted there with a small sector of
life from a very definite angle. Only he who has steeled himself
and proved his mettle outside a safe civil service position shall
pass judgment and decide over human lives. He may stand his test in
accordance with his inclination in economic life (banking, industry,
shipping, commerce, agriculture), or as an attorney who looks at the
objects of justice from “another” angle, or by taking an active part
in Party or administrative life either at home or abroad. The decisive
factor is that the future judge has not lived his life only “behind
bars.” He also must have stood “before the bars,” in real life. These
requirements lead us to recognize two facts.
_a._ No one should be appointed a judge before the age of 35. To
judge requires a ripe judgment, a certain spiritual detachment, and a
very pronounced character; qualities which can hardly be asked of a
28-year-old candidate who has never had to struggle in real life.
_b._ No one who has acquired a life position in another profession
wishes to become a judge at the age of 35, unless the following
primary conditions are created: _The position of a German judge
must be of such high standard with regards to ideal and material
rewards as to attract even the best of our youth._ By an _elastic
legislation_ and the _freedom of the bench_, the leadership of
the State places such full confidence upon the judges--as are granted
to no one else in an autocratic state--that only the best can be
considered to deserve this confidence. He who has begun a thing must go
on with it; if there are to be men in an autocratic state invested with
the freedom of the bench, then this freedom should be granted to a few
and exceedingly well qualified men only.
VII
The demand to reduce the number of judges--I reckon with a reduction
from about 16,000 to about 8,000 for Germany proper--gives us the
problem of _a fundamental reform of the entire organization
for the administration of justice_. A mere reduction of the
personnel without a simultaneous reform of working methods and of the
organization would not result in improving the work but only to its
deterioration as is the case everywhere else in general administration.
I have laid down my conception of this reform of justice in the
following detailed proposals:
1. The general political satisfaction of the people and the concept of
a national community of interest, which is growing more and more, will
already _by themselves_ relieve the courts of much work.
2. Much work is done which is only in a general way connected with the
administration of justice and which is more of an administrative than
of a judicial nature. This work can well be done and without harm _by
other administrative departments_. I mean herewith a large part of the
work done by voluntary jurisdiction, such as recording of deeds and
general registry work. The core of the administration of justice from
a political point of view--that is, the administration of criminal
law--must, on the other hand, remain in its entirety in the care of
the judiciary as it should under no circumstances be torn and split up
among several other ministries.
3. The organization of the courts, comprised at present of four
levels--lower court of first level, district courts [Landgericht],
court of appeal, and the supreme court--must be converted into an
organization of _three levels_--district court [Kreisgericht], Gau
court, and supreme court--to conform to the new political organization
of the Reich and to party jurisdiction.
All proceedings at law must be based upon the district court
[Kreisgericht] which will no longer be provided with three judges
as at present the district court [Landgericht] but only with one.
Moreover, _trial by one judge only will be the ideal and the rule of
the administration of justice_. The district judge is the principal
link between the judges and the people. Establishing the facts at the
source is decisive for all subsequent findings, as this established
the closest contact with real life in respect of time and locality.
The “exodus from the country” to “higher” positions, observed with
much concern in the case of judges and which is in concurrence with
the exodus from the country by the people in general and also of
interior administrative organs, must be counteracted with all means
with the aid of political pressure on the personnel concerned. The
district judge must be--from a human and from a professional point of
view--the most efficient judge of all. Legislation has placed all means
at his disposal for a quick and correct judicial decision. It must be
_he_ who is directing all proceedings at law, and not the parties
as has been customary heretofore. A state of affairs is untenable
where the parties at times “just tested their ground” in the court of
the first level, and where they were reluctant to admit the truth and
the evidence, because “they will go to the Reich Supreme Court in any
case.” The better the guaranties created in the first level with regard
to personnel and proceedings, the less will be the justified demand
for the _means for legal redress_. Of course, the possibility
for a re-examination of each and every judgment (with the exception
of petty cases) must remain. The authority that goes with the word
“uncontestable” may be only accorded to the decisions of the Fuehrer.
But the primary conditions for the application of legal remedies will
be rendered more difficult. The capitalist conception of the value of
matter in litigation shall no longer be the standard as at present,
but the standard must be the importance and the effect a judgment will
have on the public in general and on the further evolution of justice.
The Gau court at the residence of the Gauleiter and Oberpraesident
will be designated as court of appeal and will be provided with three
judges in accordance with the _Fuehrer principle_; the Reich
Supreme Court with three or five judges sits as court of revision
also in accordance with the Fuehrer principle, therefore not subject
to the outcome of voting but to leadership. I am, in principle,
against all centralization. In spite of the foregoing, the place for
the Reich Supreme Court of Greater Germany is in the capital of the
Reich, consequently in Berlin and not in Leipzig (a compromise of the
second Reich). The Reich Supreme Court will not act as at present as
a court of revision for all cases of a certain value of the matter in
dispute. It is only competent with regard to maintaining a uniform
administration of justice and to guarantee stability of law.
Titles such as Amtsgerichtsrat, Landgerichtsrat, Oberlandesgerichtsrat,
and Reichsgerichtsrat are out of place to describe the activities
of judges of the future. A judge does not give “counsel” but passes
judgment. Therefore, the only title that corresponds to the matter in
question and with his activity is the title of “judge.”
4. The merger of the present day Amtsgerichte and the Landgerichte to
establish a Kreisgericht [district court] with its seat probably at
the residence of the Landrat [county councilor], or of the district
party leader, means the _abolition of many smaller courts not capable
of sustaining themselves_. Apart from this, the conception of the
“Amtsrichter” as the father of a small community has died out long
ago. In his place stepped the young and forever coming and going
assistant [assessor] who has to prove himself or the Amtsgerichtsrat
with his all too narrow outlook on life who has very often become
embittered because he had not been promoted or did not have enough to
do. The decisive factor is not his judicial wisdom but his authority as
a human being. Consequently, _the honorary (unpaid) justice of peace
shall_ try petty cases of every day occurrence in each community.
He is not requested to have a legal training, in as much as it is
his duty to reconcile the parties and to restore the peace between
neighbors. The man who enjoys the most authority of all men in the
community--in accordance with the prevailing characteristics of the
place, he may be a trusted senior party member, a pensioned officer, or
a farmer--will be given the chance to perform here a most beneficial
activity. Besides, for judicial matters requiring the attention of a
trained lawyer, the judge of the district court [Kreisrichter] in his
capacity as a circuit judge will hold court in case of need on special
court days in communities belonging to his district. In this way every
German fellow citizen has access to a court in his place of domicile,
moreover, the judge heretofore confined to a too limited sphere for his
activities will automatically disappear.
5. The duties of a judge must have an exclusively judicial character.
All duties not requiring for their discharge the special schooling,
experience, and training of a judge must be transferred to the
_judicial administrator_, the higher, intermediate civil servant
of the administration of justice. The satisfactory experience made
by the general interior administration, and by financial and postal
offices in regard to their well versed, old time magistrates and chief
inspectors may well serve as an example. _To relieve the higher
officials_ of some of their duties and to delegate them to lower
grade civil servants prevents the former from becoming narrow-minded,
short-sighted, and trivial and imbues the latter with the
_readiness to assume responsibilities_. The duties of a judicial
administrator--in places not provided with an official domicile of a
district judge--consists of preparing current work and applications
intended for the district judge [Kreisrichter] but also for the justice
of the peace.
VIII
Therefore, it will be possible to produce the type of National
Socialist judge only by--
1. A radical change of training methods.
2. A radical reduction in the personnel.
3. Removing the judges from the civil service.
4. A radical change in the entire judicial organization.
This means a sweeping judicial reform top to bottom, talked about
for decades, even for centuries, but which was not accomplished
either by the second or by the intermediate Reich [Weimar Republic].
Administrative work and decisions on each and every point require a
great deal of time. Consequently, these problems must be tackled as
soon as possible from within the administration, not “although,” but
“because” we are engaged in war; not because they will come into force
and practice during the war, but because they must be held in readiness
for after the war. Frontline soldiers returning from the war can be
assured that the preparation made for the appointment of National
Socialist judges will contribute its share of safeguarding for all
time the ideals they have fought for. And the judiciary system, if not
completely transformed and reorganized, will hardly attract to it the
best of the returning soldiers primed with energy, wanting to quench
their thirst for peaceful and constructive work. Well qualified and
vigorous judges are indispensable for the enormous peacetime tasks in
store for the great Germanic Reich.
Hamburg, 31 March 1942
[Signed] ROTHENBERGER
TRANSLATION OF DOCUMENT NG-389
PROSECUTION EXHIBIT 76
REPORT FROM DEFENDANT ROTHENBERGER TO DEFENDANT SCHLEGELBERGER, 11
MAY 1942, NOTING ROTHENBERGER’S INTENTION TO INTENSIFY “THE INTERNAL
DIRECTION AND STEERING OF THE ADMINISTRATION OF JUSTICE,” AND ENCLOSING
COPIES OF ROTHENBERGER’S INSTRUCTIONS TO JUDGES IN HIS DISTRICT
The President of the Hanseatic Court of Appeal
3130 E--1a/4
Hamburg 36, 11 May 1942
Personal!
Registered
To: State Secretary Dr. Schlegelberger Reich Ministry of Justice
Subject: Report on the situation
Reference: Your ordinance of 9 December 1935--Ia 11012
3 enclosures
I
In April of this year I made a trip through various provinces
[Gaue]--Dresden, Prague, Vienna, Graz--to inform myself to conditions
in central Germany and Austria.
II
The Fuehrer’s speech of 26 April 1942 did not surprise me very much. It
confirmed to me the regrettable fact that the Fuehrer has no confidence
in the German administration of justice and in the German judges. A
radical National Socialist reform of the legal system which I have
suggested for years in verbal and written reports[261] has therefore
become even more urgent.
The effect of the Fuehrer’s speech on the judges in my district was
absolutely crushing. It is impossible to gauge the effect on the German
judges of the proclamation regarding the removal of judges and the way
in which this was made known to the world in the form of an enabling
act[262] passed by the Reichstag with frantic applause. I therefore
considered it my first duty to counteract this effect by taking the
following measures:
1. On Tuesday, 28 April, I had a preliminary discussion with my
presidents to hear how my staff felt about the matter.
2. On Wednesday, 29 April, I discussed the present situation in detail
with the Gauleiter and asked him to address, together with me, all
judges of my district.
3. We did this on Friday, 1 May. I spoke for approximately
three-quarters of an hour, next the Gauleiter spoke for about 20
minutes. Neither of us glossed over the seriousness of the situation;
we openly faced the Hamburg judges whose jurisdiction did not cause the
present crisis, and we stressed the necessity for a fundamental reform.
We pointed out that two dangers had to be forestalled:
_a._ further loss of authority of the judge’s verdict,
_b._ a feeling of doubt on the part of the judges or of
anxiety with regard to their family’s livelihood.
I have, therefore assumed responsibility for each verdict which the
judges discuss with me before passing it.
4. On Wednesday, 6 May, the Gauleiter upon my request addressed all
political and economic leaders of Hamburg on the subject of the present
crisis. I considered this necessary so as not to alarm the population
and prevent attacks against the judges.
5. On the same day I made arrangements with all senior police officers
(the Higher SS and Police Leaders, heads of the criminal police, of the
Secret State Police, and of the SD) to the effect that every complaint
about juridical measures taken by judges was to be referred to me
before the police would take action (especially regarding execution of
sentence).
6. I made similar arrangements with all representatives of the Hamburg
Press. The press was to refer to me before subjecting a verdict to any
form of criticism.
I cannot agree with the objection to these measures on the grounds
that with other Gauleiter such procedure would not have been possible.
In 1933, the Gauleiter was anything but favorably disposed toward
the judges. I am of the opinion that every political minded National
Socialist leader can be convinced of the necessity of an orderly legal
system, provided the system is National Socialist in character. Not
even the continued changes of political leaders in Hamburg, especially
among senior police officers, which have occurred since 1933, ever
disturbed our smooth cooperation.
III
In view of the present situation I am intensifying the internal
direction and steering of the administration of justice which I have
considered to be my main task since 1933. For that purpose, I have
issued the instructions which are set out in enclosures 1, 2 and 3.
IV
The meeting of the chief presidents in the Reich Ministry of Justice on
5 May this year did not satisfy me. It was my impression that most of
the chief presidents were very much depressed. I do not believe that
their inner confidence was restored in the course of the meeting.
V
I suggest that the chief presidents should be confidentially informed
of judgments passed in the Reich which have caused special criticism in
the Reich Ministry of Justice, so that the judges may get some idea of
the Fuehrer’s will regarding the various spheres of the administration
of justice.
[Signed] ROTHENBERGER
Enclosure 1
Hamburg, 6 May 1942
The President of the Hanseatic Court of Appeal
To: All Judges in the District of the Hanseatic Court of Appeal
As I already stated at the plenary meeting of the judges on 1 May
1942, I am prepared to advise every judge who in doubtful cases might
desire to approach me personally. I shall in such cases ask the judges
to arrange for an appointment with my staff and to bring along the
respective files for report.
[Typed] [Signed] ROTHENBERGER, DR
Enclosure 2
The President of the Hanseatic Court of Appeal
Hamburg, 7 May 1942
To:
The President of the Hamburg District Court
The President of the Bremen District Court
The President of the Hamburg Local Court
In view of the present situation I issue the following instructions in
agreement with the attorney general:
I
A meeting of the presidents will be held at my office every week at
which the presidents of the district courts of Hamburg and Bremen
and of the Hamburg local court as well as my expert adviser will be
present. The attorney general and the Chief Public Prosecutors with the
district courts of Hamburg and Bremen have promised to attend whenever
the cases under discussion are of special interest to them.
On the basis of brief written notes containing the titles, file
numbers, and a few key words of the matter to be discussed the
presidents in the course of this meeting will report on the important
decisions which were passed in penal and civil cases during the
preceding week as well as on the essential penal and civil cases to be
tried in the following week.
The attorney general as well as the Chief Public Prosecutors will also
bring up for discussion important preliminary investigations, submitted
to the attorney general during the preceding week.
Outside of these regular meetings the presidents will immediately
report to me matters of special importance and urgency.
II
For the purpose of procuring the material I request the presidents
to have the criminal and civil divisions and chambers submit brief
reports to them every week in the form of a review and a summing up of
important pending penal and civil cases, which, if necessary, will have
to be supplemented by verbal reports.
III
Apart from the weekly presidents’ meeting, a special meeting with the
presidents of the Special Courts in Hamburg will be held in my office
every week at a date personally arranged by me in each case in which
the attorney general and the chief public prosecutor of the Hamburg
district court will also take part. With this meeting I shall connect a
conference with the head of the public relations department for legal
matters in Hamburg.
As stated under I, the chief prosecutor of the Hamburg district court
will report on essential preliminary investigations on Special Court
cases, which have been brought before the prosecuting authority during
the preceding week.
The presidents of the Special Courts will report in the same way on
essential decisions passed by the Special Courts during the preceding
week as well as on important cases to be tried before the Special Court
in the following week.
In case of urgent Special Court proceedings the presidents of the
Special Courts have to report immediately and independently of these
regular meetings.
The cases of the Bremen Special Court will also be discussed at the
presidents’ conference.
IV
I consider as essential in the sense of these instructions all cases
which are of special importance, among them primarily--
_a._ Penal cases in which the death penalty or a long term of hard
labor is to be expected.
_b._ Penal cases which are of primary significance for the
protection of the population.
_c._ Penal cases due to the war, especially cases of offenses
against the war economy, illegal slaughtering and similar penal cases,
as well as cases against prisoners of war and against public enemies,
and cases concerning crimes committed under the cover of the black-out.
_d._ Penal cases against Poles, Jews, and other foreigners.
_e._ Penal cases of special importance concerning crimes committed
by, or against minors.
_f._ Crimes due to tragic unfortunate circumstances.
_g._ Penal cases in which a decision on the kind and degree of
punishment is especially difficult or in which uniform handling is
especially urgent.
_h._ Penal and civil cases in which persons are involved who are
State or Party officials, or dignitaries, or who hold other eminent
positions in public life.
_i._ Penal and civil cases in which it is clearly the intention
of the parties to call in agencies not connected with the judicial
authorities.
_k._ Penal and civil cases in which there seems to arise
a conflict between the established law and the necessity of an
economically and socially, reasonable solution.
_l._ Penal and civil cases concerning the interests of State and
Party, or political and economic problems, as well as problems of
foreign policy and ecclesiastical problems, or the effects of the war
(for instance bomb damage, matters concerning urgent payment of church
rates in kind, etc.).
_m._ Penal and civil cases in which legal problems of a general
nature arise which require uniform handling by the courts.
[Stamped] [Signed] ROTHENBERGER, DR
Enclosure 3
The President of the Hanseatic Court of Appeal
Hamburg, 7 May 1942
To the Presidents of the Civil Senates and of the Criminal Senate
The Fuehrer’s speech and the Reichstag resolution of 26 April 1942
make it necessary to do everything possible in the organizational
field in order to secure jurisdiction of the kind the Fuehrer expects,
especially in wartime. As announced in my speech of 1 May, I therefore
intend to inform myself as extensively as possible prior to the trials
of cases which are of political significance, or which involve the
possibility of a certain contradiction between formal law and the
public sentiment or National Socialist ideology in order to discuss
matters if necessary with the presidents in question. Incidentally, I
expect the presidents more than ever before to confidently submit to
me for discussion matters involving the afore-mentioned problems. To
obtain information as far as the civil senates and the criminal senate
of the Hanseatic court of appeal are concerned, I have requested the
president of the senate, Dr. Struve, at present my permanent deputy, to
assist me by holding conferences with the presidents of the senates at
regular intervals at which the presidents will furnish a review of the
cases which will come up in the near future. Generally the report can
be brief. But it must furnish sufficient details in cases which require
special attention according to the Fuehrer’s speech, in order to enable
my deputy to decide whether my intervention is necessary or expedient.
In this connection the facts of the case and the decisive legal points
of view will have to be discussed. I expect that these arrangements
which are only destined to serve jurisdiction and to strengthen the
position of the judges will meet with general approval, and I hope that
my deputy will be fully supported by you. I shall of course continue to
be at your disposal for personal discussions.
[Typed] [Signed] ROTHENBERGER
The President of the Hanseatic Court of Appeal
3150 E--1a/4
Hamburg 36, 1 June 1942
Registered
To: State Secretary Dr. Schlegelberger
Reich Ministry of Justice
Berlin
Your Ordinance of 9 December 1935--Ia 11012.
Following up my report of 11 May 1942 on the situation, I beg to inform
that I have, in the meantime, taken the same steps in Bremen which I
had taken in Hamburg as a consequence to the Fuehrer’s speech. The
authorities at Bremen (the Lord Mayor, the Kreisleiter, the President
of the Police, the head of the Secret State Police, and the head of
the SD district) have made the same arrangements with me as did the
respective Hamburg authorities.
[Signed] ROTHENBERGER
c. Testimony of Defendant Rothenberger Concerning His
Memorandum on Judicial Reform
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[263]
_DIRECT EXAMINATION_
* * * * * * *
DR. WANDSCHNEIDER (counsel for the defendant Rothenberger):
Dr. Rothenberger, would you please first make some general statement
about your memorandum?
PRESIDING JUDGE BRAND: The exhibit number, please.
DR. WANDSCHNEIDER: We are concerned with Document NG-075,
Prosecution Exhibit 27,[264] in document book 1-B, page 1. I have
submitted a list to the Court on which the documents I shall mention
are listed. Please begin with your statement.
DEFENDANT ROTHENBERGER: The memorandum is a brief summary of
what I had worked out during the previous years in Hamburg. The reason
for my writing such a memorandum at all, I believe, I already indicated
yesterday. I had pointed out that the development in the Reich until
1942, when this memorandum was written, gave cause for growing dangers
and misgivings for every jurist.[265] Furthermore, I had pointed out
how the administration of justice was pushed more and more into a
defensive position by the Party and the SS and how the jurists, as
well as all Germans, either acquiesced in this condition and this
development or even went along with it, and how the administration
of justice was more and more in retreat battles. I did not want to
and could not go along with this line of action. And I did not want
the administration of justice again and again to be confronted with
_faits accomplis_. The Party and the SS concerned themselves
with ideas for reforms of the administration of justice and it was my
opinion that the only office which was competent for this and an expert
organization in the field was the administration of justice itself.
And the starting point for the attempt to change the course of this
development were my experiences which I had gathered in Hamburg and in
England.
My conviction grew stronger and stronger to the effect that that
question of the position of the judge in a state was significant not
only for the administration of justice itself, but that it was a basic
problem of political life in every state. Germany had always gone from
one extreme to the other in politics, and now we were experiencing,
during the year 1933 and the subsequent years, the extreme of a power
state. And one of the causes for this was, in my conviction, that in
Germany we were lacking a point of rest, an authority which due to
tradition and out of its independence was in a position to influence
the development critically. This impression in particular was very
vivid to me from my experiences in England. Therefore, my belief that
the idea of the so-called Judge-King in Germany too, if there was
any chance at all, would exert an influence on the development. This
memorandum represents a final warning to Hitler in order to hold him
back from this development which had begun. If today I put the question
to myself, whether I believed that I could convince Hitler at all from
my knowledge that I have today I, of course, have to answer no to that
question. According to my knowledge at that time I hoped for it and I
believe that the fact alone that I undertook such an attempt at all is
the best proof for this; and my belief of the time will be understood
on the basis of the experiences which I had gathered in Hamburg where
it had been possible by trying to swim against the current and to exert
influence upon leading political personalities, that one could succeed
there.
The aim of my memorandum was, in the final analysis, the same as has
to be the aim of every state, namely, the rebuilding of an autonomous
law which is independent of the form of government and without temporal
limitation. In countries which have a tradition this may not be a
problem at all, but in Germany this question had for decades been the
problem, and already since 1905 leading jurists in Germany had occupied
themselves with this problem again and again.
If I had described this idea in my memorandum in very dry and bare
words then this memorandum as hundreds of others would immediately
have been thrown into the wastepaper basket and I would have been
described as a fool. Therefore, I had first to describe the means
which could create the prerequisites for such a final condition and,
therefore, I described the proximate aims which I wanted to reach
first. I emphasized them first. In order to clarify to the Tribunal
that the position of a judge in Germany is a completely different one
than in England, and I believe also than in the United States, I have
to go into the historical development of the profession of the German
judge in a few words. I can do this more briefly since this historical
development is indicated briefly in this memorandum; furthermore,
because in a lengthy article which I wrote at that time, which will
be submitted as an exhibit by my defense counsel, I went into this
historical development in detail.
I therefore want to say here merely by a slogan that once due to the
acceptance of the Roman law in Germany in the 16th Century which
took place only on the continent of Europe and not in England, and
furthermore caused by the development of the Prussian state where the
administration of justice, as I already emphasized yesterday, was only
a stepchild; that due to these two circumstances the judges’ profession
played only a very modest and mediocre role. In Germany we had about
19,000 judges who belonged to the General Civil Service and who in
no way differed as far as their income, or their position, or their
reputation was concerned from an absolutely average civil servant.
The essential factor in this development was that the practical course
of the education of a judge in Germany to this very day brought about
that only persons who were merely average lawyers decided to take up
the judge’s profession.
If I may be permitted to do so, I would like to mention briefly how one
becomes a judge in Germany. At the age of approximately 25, one becomes
assessor; at this time one decides whether one wants to become a judge.
If one does decide to become a judge, one remains for a number of years
and at that time it was about 5 to 8 years--a so-called assistant
judge, Hilfsrichter.
This means that one exercises the functions of a judge, to be sure,
but one can be discharged any day. And then in the course of years one
finally achieves being appointed a judge. It happened only very rarely
that a person who had been sitting as an assistant judge for a number
of years was not appointed judge.
Then when one finally became a judge one received an income of about
300 marks. A fairly good skilled worker in Germany earned twice as
much. Therefore, one had to lead a very modest life. One was treated as
a civil servant to the extent that every year a so-called qualification
or efficiency report had to be written about every judge. In other
words, a report had to be made as to the qualifications of the judge.
The superior of the judge had to go to the court session in order, as
we expressed it, to examine the judge; that is, to examine whether the
judge was able or not.
Then, the judge waited for his next promotion which played a very
decisive role for him and for his family in view of his small income.
There was a scale of promotions from the local court to the district
court, to the district court of appeal, and finally, to the Reich
Supreme Court.
This briefly described course of training thus demonstrates that the
judge in a quiet existence of a civil servant was employed only as a
judge all the time, and this gave cause to the leading German jurists
since 1906 to do something about it. The first precursor of this
idea was a certain Adickes. These jurists tried to suggest a basic
alteration of this course.
Adickes was followed by an Under Secretary Muegel, and he in turn
during the Weimar Republic was followed by the then Reich Minister of
Justice Dr. Schiffer who today is again Minister of Justice in the
Russian zone of occupation. All were of the same opinion that his
position of the judge had to be changed fundamentally and that this
would be possible only by a very severe reduction of the number of
judges.
If the prosecution is charging me I believe even in the indictment
itself with the fact that I in very clear words desired to change this
condition, or suggested changing this condition, by saying that not the
salve of the drug store but the knife of the surgeon, was needed then I
am in good company in so saying to the extent that my predecessor for
these plans was Reich Minister of Justice Dr. Schiffer who by the way
is fully Jewish. He expressed the following thoughts about this problem
at the time, and I quote:
“The wound should not be covered up and smeared over, it
must be cut, pressed out, and scraped out. The reform in the
administration of justice which we need is not an enlargement or
a reconstruction but a thorough reduction.”
These plans which were discussed in Germany for 50 years, and the
execution of which failed every time, I now made my own. As can be seen
from the memorandum, I was confronted, above all, with the problem as
to what means could be used at all to bring about this reduction in
the number of judges without reducing the quality of jurisdiction. The
means which I suggested were also very closely allied to those means
which had been suggested for 50 years. These means were as follows:
First, the concept of the justice of the peace. I believe that I do not
have to go into the details of this position because, first of all,
I assume that the Tribunal is very familiar with this institution of
a justice of the peace; and secondly, because I said something about
it in the memorandum itself; and thirdly, because I discussed it in a
lengthy article which will be submitted.
The second method which I suggested, and which I also discussed in a
lengthy article, which will be submitted as an exhibit is the idea of
the administrator of justice [Rechtspfleger]. This is an idea which
conforms with the investigations I made in England about the master,
the registrar, and the clerk.[266] The aim here is clear too, namely,
that the judge should act during the trial exclusively as a judge and
must be relieved of the burden of all technical preparations and of the
tasks which are not truly the tasks of a judge.
The third method which I suggested was a change in the structure of
the German courts as a whole. Details about this too are not only in
my memorandum, but in articles which will be submitted in evidence
here. My aim was to introduce, in the place of the super organization
of the German courts, a nonbureaucratic, simple, and clear structure
of organization of the courts. In this organization of the courts the
idea was decisive for me that every judge in Germany should have the
same rank, but not as it had been up to now where the judge had to
wait for and was dependent upon a promotion so that his activity, even
subconsciously, was guided by his aim of being promoted. I wanted to
do away with all titles. In my opinion, every judge deserves only the
title “judge.” I was of the opinion that through these changes, the
inner independence of the judge would be strengthened. The decisive
factor for this inner strengthening of the judge was my suggestion to
take the judges out of the general group of civil servants.
In my memorandum I attempted to explain to Hitler the basic difference
between a regular civil servant and a judge.
This, of course, would have meant that the judge, from the point of
view of his income, his position, and especially his reputation,
would occupy an overwhelming position in Germany. I expressed this
as follows and underlined it. The position of the German judge must,
ideally and materially, be organized in such a way that it will appeal
to the best of the future lawyers. And with this question namely the
pure civil servant career of a judge, up to this time, is connected
another request I made, that only a person should be appointed judge
who before that had worked in another profession and had there gained
experience, be it in economics, be it in another sector of the state,
or above all, as an attorney. I was of the opinion that only a person
of advanced age and older than was usual in Germany--I said that the
minimum age should be 35--should become a judge, because a man who is
very young and who has not, outside of a quiet life as a civil servant,
been forced to fight and to gather experience, is not able to judge
about the fate of people which is entrusted to him in the courtroom in
a just and humane manner. And the last point of these suggestions for
reform is the training of judges already at the university. I started
with the assumption that the legal questions are very essential for
the pronouncing of a sentence, but that the decisive question in every
trial is the finding of the facts and the evaluation of the persons, be
it the witnesses, the plaintiff, or the defendants. The training that
was given at the German universities was in former times exclusively
concerned with legal problems. At the university the students listened
as an audience to a professor who read out his lectures on legal
theory; that to be sure is necessary, but it had to be supplemented by
a practical point of view. This recognition I had gained from my long
experience as a tutor in Hamburg, and therefore my detailed suggestions
which are mentioned in the memorandum which I later carried in Berlin.
And perhaps I may be permitted later to go into them in detail.
* * * * * * *
Q. I now go into the individual cases. First I put the question to you.
On page 6 [section III] of your memorandum you said (_NG-075, Pros.
Ex. 27_)[267]: “Occasionally the opinion is represented that an
authoritarian state cannot bear a strong judiciary.” Whom did you mean?
Who represented that point of view occasionally?
A. That is very clear that the Party and the SS represented that point
of view.
Q. You meant thus your opponents in your daily life?
A. Yes.
Q. In your legal practice?
A. Yes, because I knew that these two organizations, the Party and
the SS, in the course of the years exerted a very strong influence
on Hitler. It was therefore decisive for me first to deal with the
question as an immediate aim from the point of view to gain an
influence on Hitler as a judge in order to exclude all influences
of the Party and the SS. And out of that knowledge I made the
requirement that between Hitler and the German judiciary there should
be no intermediary; that, in other words, nobody should be allowed
to influence the judge, be it a political leader, be it Bormann, be
it Himmler, or any other organizations which so far had exercised a
strong influence on the judge. And the second concrete requirement
which I made, and which is contained in my memorandum is that the
entire administration of the criminal law [Strafrechtspflege] should
not be split up but its entire extent remain with the administration
of justice. In connection with that are some formulations which I
made in my memorandum which state that the political leaders and the
official of the Gestapo cannot be judges at the same time. A corruption
and hunger for power cannot be prevented in any better way than by a
strong personality of a judge. And if I raised such requirements and
then thought about how I could explain these thoughts to a man like
Hitler, as I saw him at the time, how can I dare undertake such a
step at all, the result of such an attempt was exclusively dependent
upon the tactics or the methods which I employed. And therefore, in
formulating my memorandum, my ideas, I made certain concessions but I
always added the aim itself immediately afterward. I would like to cite
two cases particularly which the indictment put into the record in that
connection. First, the following sentence:
“All clamor about lawlessness, despotism, injustice, et cetera,
is at present nothing but a lack of insight into the political
situation.” And then I continue: “The question is solely: Is a strong
judiciary incompatible with the National Socialist authoritarian
state [Fuehrerstaat] _per se_, that is, permanently or only
temporarily?” And another sentence with which I am being charged is
the following: “Political situations require constant measures of
opportuneness, and every stubborn resistance to it--‘on principle’
or ‘fundamental deliberation’--is senseless.” And I continue: “But
one must be constantly aware of the danger that the very ‘convenient’
putting aside of a regulated administration of justice conceals the
_tendency of habit_”--and that last phrase is underlined--“What
can I do to put at the disposal of the Fuehrer a justice and judges in
which he may have confidence?”
Now for me the basic problem existed--how is it possible to make
these ideas of a judiciary at all compatible with the ideas of an
authoritarian state, because the authoritarian state as such was a
fact for me. I could not overthrow it; and to that extent, of course,
there is a difference in regard to the position of the judge which I
aimed at in Germany from the position of a judge in England. For me it
was a fact that Hitler was the man who in Germany combined all power
in his own person, but in order to make the dangers inherent in this
concentration of power clear to Hitler, I emphasized two factors in
particular in this memorandum.
First for one, a historical element. By referring to the Roman Empire,
to the British Empire, and to other empires, I pointed out to him on
the basis of history that: “Nothing brings about the self-destruction
of a state more than the absence of law and a weak judiciary.” The
second element with which I hoped to convince Hitler was a more
nationalist element. I attempted to explain to him the picture which
every human being makes himself of the position of a judge. I used
the expression, “The original judge and arch judge,” and I told him
that the essential characteristics of this arch judge consist of three
conditions.
First, that it is a distorted picture if this judge has to ask another
person what kind of a decision he should make. The independence of the
judge and his freedom in issuing instruction was the most essential
feature of a judge in contrast to a civil servant. The second element
which I wanted to include in this picture in which I told him that
he has to imagine a court on a market place was that a human being
can really only imagine that there was just one judge. As soon as
one has several judges in one case, one asks, “Well, who gives me a
better justice?” I said that the symbol for the fact that there is only
one law and one justice would be blurred. By saying so, of course,
I meant that there should be as few judges as possible. The third
element which I added to this picture was, and I quote: “The judge
has a strong inner authority. He is the interpreter of the law who
from the point of humaneness, wisdom, and experience must be superior
to all other servants of the State.” The fact that Hitler, himself,
was the highest legal reviewing authority in Germany was of course
from my conception of the dignity and independence of the judiciary,
a danger. The question exists anyhow as to whether this idea of the
absolute independence of the judge is compatible with the concept of an
authoritarian state.
After I was discharged, and after I had gathered the experience in
Berlin during the 15 months that I was there, I absolutely denied that
question. I said that those two concepts are not compatible with each
other. At the time when I made this attempt, I believed that they
were compatible, and that the separation of power which is necessary
in every state for the purpose of controlling the people, in practice
would be achieved by my program of having all influences on the
judiciary eliminated.
* * * * * * *
Q. Dr. Rothenberger, would you now please tell the court how your
appointment to the post of State Secretary in 1942 came about? In this
connection I would refer to [1964-PS, Prosecution] Exhibit 65. That is
the authority dated 20 August 1942.
A. On 4 August 1942 the Reich Minister and Chief of the Reich
Chancellery, Lammers, suddenly asked me to come to Berlin for the
purpose of a conference. Lammers told me the Fuehrer had read my
memorandum. He had liked that memorandum, and he would like to have
the plans of that memorandum carried into effect. I asked Lammers
specifically as to whether Hitler had given him any further reasons. He
told me what had impressed Hitler was the question of the position of
the judge. His opinion of the judge of the civil servant type was very
low, and he thought that civil servants and judges were strangers to
practical life.
In reply to my question, Lammers said to me, “Hitler is convinced that
these plans must be carried out.” I then said to Lammers that I thought
during the war it was altogether impossible to put into effect my plans
and I would ask to be allowed to wait with carrying out my plans until
the end of the war, all the more so as I myself had not yet finished my
preparatory work in Hamburg. Lammers replied that Hitler counted on an
early conclusion of the war, and the preparation for carrying out the
reform would need some time after all, and I was to utilize that time.
* * * * * * *
_CROSS-EXAMINATION_
* * * * * * *
MR. KING: Dr. Rothenberger, I would like to come back to
Prosecution Exhibit 27, which is Document NG-075. This is your
memorandum to Hitler, or rather your memorandum which eventually
reached Hitler, and to which you attribute your appointment to the
position of State Secretary. The purpose of examining certain phrases
from this memorandum is to enable me better to understand what your
new program for the independence of the judiciary was. I am sure you
know that memorandum much better than I do. I want to read to you
several paragraphs from it. You say in one place: “Law must serve the
political leadership.” Then you say in another place on page 8 of the
document, “He who is striving toward a new world order cannot move in
the limitation of an orderly Ministry of Justice. To accomplish such
a far-reaching revolution in domestic and foreign policy it is only
possible if on one hand all outmoded institutions, concepts, and habits
have been done away with, if need be in a brutal manner.” Then you say
still further on, “The Fuehrer is the supreme judge, theoretically the
authority to pass judgment is only his.” Then you say still further
on: “A judge who is in a direct relation of fealty to the Fuehrer must
judge like the Fuehrer.” All of these phrases which I read appear in
that memorandum and based on them, I want to ask you this and perhaps
several other questions. You have repeatedly said that the purpose
of your program was to establish an independence of the judiciary.
However, the essence of your program, as it seems clear to me from
reading your memorandum, is that the Fuehrer is the supreme judge. As
you say here, theoretically the authority to pass judgment is only
his. A judge in a position of direct relation of fealty to the Fuehrer
must judge like the Fuehrer. Now my question to you, Dr. Rothenberger,
is simply this: When you speak of the independence of the German
judiciary, how do you reconcile that with these statements that the
Fuehrer is the supreme judge, and that only he can actually judge, and
that all judges must reflect his thinking?
DEFENDANT ROTHENBERGER: During my direct examination I
have already tried to explain the thoughts which made me write
this memorandum. It is extraordinarily difficult to do so briefly,
especially to state one’s attitude only in regard to two or three
sentences which are taken out of their context. Therefore, I am of the
opinion that the memorandum as such should speak for itself, and that
I leave it up to the Tribunal to form its judgment about the actual
thoughts contained in the memorandum. And if in spite of that I may
answer that question only very briefly in a concrete manner, I have
to say the following: In 1942 the authoritarian state as such was a
fact in Germany. That is to say, Hitler was also the highest judicial
authority, and if any chance or possibility still existed to remove
all the damage which had occurred during the course of years and all
the burdens with which the administration of justice was loaded by the
Party and by the SS--or, as we used to say at the time, on the part of
the thousand little Hitlers who every day jeopardized the independence
of the individual judge--under those conditions the only possibility
to bring about any amelioration at all was Hitler himself. That it was
impossible to convince Hitler I, and later on, everybody realized. But
at the time I believed that it was possible to convince him, and I had
to seize that possibility as a last chance. And if it would have been
possible to convince him, then in effect the independence of the courts
would have been reestablished again. For in that case this direct
relationship between Hitler and the judiciary which I asked for would
have been established and all other influences which burdened every
judge every day would have been eliminated.
Q. Dr. Rothenberger, may I interrupt you at this point? I think that
you are entirely too modest about the success of your program. If you
meant what you said in your memorandum, and I assume that you did mean
what you said, then isn’t it true that your program was a complete
success, since the final result was that the Fuehrer became the supreme
judge? Isn’t that true?
A. The fact that after only 15 months I again left my office is
probably the best proof of the fact that my program was a complete
failure.
Q. Dr. Rothenberger, do you distinguish between the success of your
program and your own failure to get along with people in the ministry?
Isn’t it possible that those two factors are separable?
A. No. A second reason also speaks for the assumption that it was a
complete failure--and that is the intervention of outside offices with
the activity of the judges which I wanted to prevent; this did not stop
at all after this memorandum was submitted, but rather became worse.
The independence of the court and the lifting of the judiciary from
the civil service, which I was striving for, did not become effective
at all. I request the Tribunal to tell me whether I should go into more
detail in regard to this problem, which of course is a fundamental
problem, or whether I should not say any more about it now.
PRESIDING JUDGE BRAND: We will not interfere at this time.
MR. KING: Dr. Rothenberger, I am frankly puzzled by seemingly
contradictory statements in your memorandum. Let’s go over it once
more. You say, on the one hand, that you want an independent judiciary.
You say, on the other, that the Fuehrer is the supreme judge, and all
judges must act like the Fuehrer. Now, unless you meant that all judges
must act in accordance with the wishes of the Fuehrer, your memorandum
means absolutely nothing and is pure double-talk. If that isn’t what
you meant--if you didn’t mean that the Fuehrer’s decisions should be
the final decisions--just what do you mean by all that talk of the
Fuehrer being the supreme judge?
DEFENDANT ROTHENBERGER: I said in my memorandum that
theoretically the Fuehrer is the highest judge in Germany; I also
expressed that the individual judge in his decision must be independent
even in his relationship to the Fuehrer. What I attempted to achieve
first was to eliminate all other influences on the judge and therefore
to establish this direct connection between the Fuehrer and the judge.
Therefore, my suggestion in order to say it clearly to put in place
of the influence of Bormann or Himmler, the so-called “Judge of the
Fuehrer,” who would influence the Fuehrer in the capacity of a judge,
and would therefore not only try to direct the development in Germany
into quite different channels in a legal respect but in every respect.
Q. Let me put this question to you. If, under your program, as you
envisaged it in 1942, a judge came to a decision, and that decision was
known not to be in accordance with the Fuehrer’s views, in your view
whose opinion should have prevailed, as you intended it to work out?
A. The decision of the judge.
Q. Then what do you mean when you say the judge must judge like the
Fuehrer?
A. The Fuehrer does not have the right to touch a decision made by a
judge.
Q. Dr. Rothenberger, we know that that wasn’t so in practice, don’t we?
We have seen instances where it didn’t work out that way, haven’t we?
A. Unfortunately, after I wrote this memorandum, especially here in
this trial, and also when I was in Berlin already, I found out that
the Fuehrer acted in a different way. The purpose of this memorandum,
however, was merely the following: to convince the Fuehrer that the
men who had influenced him so far and in that direction were wrong. My
knowledge from Hamburg was not sufficient in order to know already at
that time that the Fuehrer himself could not be convinced. But that is
not only my own tragedy, but the tragedy of the entire German people.
Q. Did you ever consider the possibility that the Fuehrer in reading
your memorandum read it literally and decided that when you said “The
Fuehrer should be the supreme judge,” that you meant what you said? Did
you ever consider that possibility?
A. Yes, I considered that possibility.
Q. Do you have any feeling that in practice it didn’t work out that
way? In fact, the evidence adduced here at this trial tends to prove,
don’t you believe, that by the end of the war the Fuehrer really became
the supreme judge and interfered with all judicial decisions?
A. I saw that later, and if I had known that before, I would not have
undertaken this daring attempt, because there was no hope for it from
the very beginning. But at the time, I thought that as a jurist I was
under an obligation to make this final attempt, because I just could
not accept the conditions which existed.
Q. You knew what the Party platform was, did you not? You knew what
Hitler had said in Mein Kampf, did you not?
A. About that problem, he did not say anything in a negative way in his
Party platform and not in Mein Kampf either.
Q. Well, as a reasonable man, Dr. Rothenberger, you knew what his
attitudes were on all of these questions, and if your program embodied
having him become the supreme judge, you knew fairly well how he would
judge on all these questions from your prior knowledge, did you not?
A. No. I can only emphasize again and again that as long as I saw the
possibility of influencing him, I considered it my duty to make this
attempt; otherwise I would have been a fool.
Q. No one denies that you did influence him, Dr. Rothenberger; the
implication is that you did, and that you were completely successful.
A. I did not have any success. That is just it. Hitler could not be
convinced.
Q. He became the supreme judge, did he not?
A. In effect, he interfered with the administration of justice, as we
know now.
Q. All of the judges in Germany were in a position of fealty to the
Fuehrer, were they not?
A. No fealty, no.
Q. What do you understand by “fealty”?
A. Dependence upon him.
Q. And you don’t think judges in Germany at the end of the war were
dependent on Hitler?
A. I just wanted to prevent this fealty.
Q. You wanted to prevent it?
A. Yes.
Q. That is not what you said in your memorandum. You said in your
memorandum, “A judge who is in direct relation of fealty to the Fuehrer
must judge like the Fuehrer.” That doesn’t sound like you were trying
to prevent it. That sounds like you were trying to induce it.
A. You do not distinguish between the dependence and fealty on the one
hand, and an obvious natural relationship of trust and confidence which
every German and therefore every judge too should have in the Fuehrer.
* * * * * * *
JUDGE HARDING: Dr. Rothenberger, with reference to the time
you submitted your memorandum to Albrecht,[268] when did this speech of
Hitler declaring himself the supreme law lord of Germany occur? What is
the relationship between the time you submitted your memorandum and his
speech?
DEFENDANT ROTHENBERGER: The Hitler speech was delivered on 26
April [1942].[269] When my memorandum reached Hitler’s hands, I cannot
say.
Q. When did you submit it to Albrecht?
A. I can gather that only from the date which is below the memorandum
and that is 31 March; in other words, I probably gave the memorandum
to Albrecht during the month of April without knowing exactly when it
was and also without knowing when Albrecht succeeded in putting it in
Hitler’s hands. I don’t know that.
Q. It was submitted to Albrecht before you knew anything about this
speech of 26 April?
A. Yes, that is certain.
* * * * * * *
3. FURTHER DEVELOPMENTS PRINCIPALLY WHILE THIERACK WAS REICH MINISTER
OF JUSTICE (AUGUST 1942–1945)
a. “Special Treatment.” Further relations with officials of the
Nazi Party, the Gestapo, the SD, and the SS
TRANSLATION OF DOCUMENT NG-059 PROSECUTION EXHIBIT 38
FILE NOTE CONCERNING A CONFERENCE OF 18 SEPTEMBER 1942 AT HIMMLER’S
FIELD HEADQUARTERS BETWEEN HIMMLER, REICH MINISTER OF JUSTICE THIERACK,
AND DEFENDANT ROTHENBERGER
RK 13227 B 21 Sept 1942
Field Headquarters, 19 September 1942
Subject: Judicial reform
1. Remark--On 18 September 1942 following an invitation by the
Reich Leader SS, Dr. Thierack, Reich Minister of Justice, and Dr.
Rothenberger, State Secretary, met at the Reich Leader’s field
command post. They had a discussion, lasting 5½ hours, with the
Reich Leader, in which also participated on the side of the Reich
Leader, SS Gruppenfuehrer Streckenbach (Security Police) and SS
Obersturmbannfuehrer Bender (SS judge with the Reich Leader SS and
Chief of the German Police). The results of the discussion, about which
State Secretary Dr. Rothenberger expressed greatest satisfaction, are
to be summarized in minutes.[270]
[Notation in ink] Afterward the Reich Minister of Justice and the Reich
Leader SS had a private conversation.[271]
2. Obediently submitted to the Reich Minister.
[Initial] L [Lammers] September, 22
[Initial] F [Ficker]
3. For the files.
Justice 24
TRANSLATION OF DOCUMENT 654-PS
PROSECUTION EXHIBIT 39
MEMORANDUM OF THE REICH MINISTER OF JUSTICE ON A CONFERENCE WITH
HIMMLER, 18 SEPTEMBER 1942, CONCERNING “SPECIAL TREATMENT AT THE HANDS
OF THE POLICE” WHERE “JUDICIAL SENTENCES ARE NOT SEVERE ENOUGH”, THE
WORKING OF “ASOCIAL ELEMENTS” TO DEATH, AND OTHER MATTERS
Discussion with Reich Leader SS Himmler on 18 September 1942 at his
field headquarters in the presence of Under Secretary Dr. Rothenberger,
SS Major General Streckenbach, and SS Lieutenant Colonel Bender.
1. Correction [Handwritten insertion: “Lammers informed”] by
special treatment at the hands of the police [durch polizeiliche
Sonderbehandlung] in cases where judicial sentences are not severe
enough. On the suggestion of Reichsleiter Bormann, the following
agreement was reached between the Reich Leader SS and myself:
_a._ On principle, the Fuehrer’s time is no longer to be burdened
with these matters.
_b._ The Reich Minister of Justice will decide whether and when
special treatment [polizeiliche Sonderbehandlung] at the hands of the
police is to be applied.
_c._ The Reich Leader SS will send the reports which he hitherto
sent to Reichsleiter Bormann, to the Reich Minister of Justice.
_d._ If the views of the Reich Leader SS and those of the Reich
Minister of Justice agree, the final decision on the case will rest
with them.
_e._ If their views are not in agreement, Reichsleiter Bormann
will be asked for his opinion, and he will possibly inform the Fuehrer.
_f._ In cases where the Fuehrer’s decision on a mild sentence is
sought through other channels (such as by a letter from a Gauleiter)
Reichsleiter Bormann will forward the report to the Reich Minister of
Justice. The case will then be decided as described above by the Reich
Leader SS and the Reich Minister of Justice.
2. Delivery of asocial elements [asozialer Elemente] while serving
penal sentences to the Reich Leader SS to be worked to death [zur
Vernichtung durch Arbeit]. Persons under security detention, Jews,
gypsies, Russians, and Ukrainians; Poles with more than 3-year
sentences; and Czechs and Germans with more than 8-year sentences, will
be turned over without exception, according to the decision of the
Reich Minister of Justice. First of all, the worst asocial elements
among those just mentioned are to be handed over. I shall inform the
Fuehrer of this through Reichsleiter Bormann.[272]
3. Administration of justice by the people--This is to be carried out
step by step as soon as possible, first of all in the villages and
the small towns of up to about 20,000 inhabitants. It is difficult to
carry it out in large towns. I shall rouse the Party particularly to
cooperate in this scheme by an article in the “Hoheitstraeger.” It is
evident that jurisdiction must not be permitted to lie in the hands of
the Party.
4. Decrees concerning the police and the administration of justice will
in future be published after having been coordinated, for example, in
cases where unmarried mothers attempting to procure abortion are not
prosecuted.
5. The Reich Leader SS agrees that the cancellation of sentence,
even for members of the police, will remain with the Reich Minister
of Justice as laid down in article 8 of the law relating to the
cancellation of sentence.
6. The Reich Leader SS has given full consent to the ruling I have
planned on corporal punishment ordered by the Fuehrer.
7. I refer to the law concerning asocial elements and give notification
of the claims of the administration of justice, e.g., in the
classification of juveniles as asocial elements and their direction.
It likewise seems to me that the actual circumstances which serve
to classify a person as asocial are not laid down in the law with
sufficient clarity. The Reich Leader SS is awaiting our opinion and
will desist from submission of the law until then.
[Handwritten] One thing is clear--the reduction of the age of
discretion has been tentatively submitted to, and approved by
the competent agencies.
8. The Reich Leader SS has agreed to a clause for the Juvenile Court
Law, whereby the age of discretion can be reduced to 12 years and the
age of limited discretion can be extended to over 18 years.
9. SS Lieutenant Colonel Bender, on the staff of the Reich Leader SS,
is appointed by the Reich Leader SS as liaison officer for matters
which apparently necessitate direct liaison with the Reich Leader
SS. He can be contacted at any time by teleprinter at the field
headquarters of the Reich Leader SS, and will also come to Berlin once
every month to report to me. SS Captain Wanniger is appointed liaison
officer for other matters; he is stationed at the Reich Security Main
Office.
[Handwritten] Kuemmerlein[273]
10. The Reich Leader SS points out that in the administration of
punishment many more special institutions should be set up, following
the principle that incorrigible criminals should be confined
separately, and that those capable of improvement should be separated
according to the nature of their crimes (e.g., embezzlers, thieves,
and those who committed acts of violence). This is recognized as being
correct.
11. The Reich Leader SS demands that the penal register be kept by
the police. Arguments against this are to be examined (cancellation,
aggravation, and the use of an extract from the penal register). The
question is to be further discussed with SS Major General Streckenbach.
12. The Reich Leader SS points out SS First Lieutenant, Judge at the
Reich Supreme Court, Altstoetter, at present on active service as a
major, as being reliable and also District Court President Stepp; he
considers Attorney General Jung in Dresden unreliable.
13. Finally, the Reich Leader SS broaches the subject of the office of
the public prosecutor and its transfer to the police. I rejected it
flatly. There was no further discussion of this subject.
14. 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, and Ukrainians are no longer to be tried by
the ordinary courts as far as punishable offenses are concerned, but
are to be dealt with by the Reich Leader SS. This does not apply to
civil lawsuits, nor to Poles whose names are registered for or entered
in the lists of ethnic Germans.
[Initial] TH [Thierack]
TRANSLATION OF DOCUMENT NG-857
PROSECUTION EXHIBIT 434
LETTER FROM THIERACK TO THE PRESIDENT OF THE REICH SUPREME COURT, 29
SEPTEMBER 1943, PROPOSING SS GENERALS OHLENDORF AND CERFF AS GUEST
SPEAKERS[274]
Berlin, 29 September 1943
The Reich Ministry of Justice
T 712, M I a
To: The President of the Supreme Court of the Reich, Dr. Bumke
1.
Leipzig C 1
Reichsgerichtsplatz 1
[Stamp] Out: 29 September 1943
[Handwritten initials illegible]
Dear Dr. Bumke,
I would appreciate it if, together with the Chief Public Prosecutor
of the Reich, you would invite SS Brigadefuehrer Ohlendorf and SS
Brigadefuehrer Cerff to speak before the members of the Supreme
Court and before the public prosecution of the Reich. This plan has
been suggested by the Reich Leader SS, and I welcome it. The two
Brigadefuehrers can both be reached c/o the Reich Security Main Office
in Berlin.
Heil Hitler!
Yours obediently
[Typed] DR. THIERACK
2. After dispatch to State Secretary for information.
[Initials illegible]
3. To be returned to ministerial office.
TRANSLATION OF DOCUMENT NG-219
PROSECUTION EXHIBIT 42
REPORT FROM THE GENERAL PUBLIC PROSECUTOR IN JENA TO THE REICH
MINISTRY OF JUSTICE, 30 SEPTEMBER 1943, CONCERNING COOPERATION OF
JUSTICE AUTHORITIES WITH THE SD AND INTEROFFICE MEMORANDUMS PERTAINING
THERETO[275]
REICH MINISTRY OF JUSTICE
Business Office a-3
Subject: Cooperation of the justice authorities with the Security
Service of the Reich Leader SS.
IV a 2745.43 g-sheet No. 1 [Stamp] Secret
Copy of an extract from the report regarding the situation by the
general public prosecutor in Jena of 30 September 1943
[Handwritten] 4606/1-a-4, 1512/42
The reciprocity contained in the executive order of the Reich Ministry
of Justice concerning the cooperation of the justice authorities with
the SD (Security Service) of the Reich Leader SS [Himmler] of 3
August 1942--[published in] _German Justice_, page 521--is only
very conditional. The [Ministry of] Justice works openly, and the
Security Service secretly. So, as a general rule the [Ministry of]
Justice is not at all informed of the work which is being carried out
by the Security Service and is therefore also not in the position to
request information. It is usually accidentally informed about such
investigations. So it was in the case of Greiz, which was submitted to
the Minister and during which an inspector of justice was asked about
the attitude in the judicial circles regarding the judges’ letters.
I furthermore remember a case of Sonneberg from which the conclusion
could be drawn that the Security Service made investigations regarding
the protection of war marriages through the courts.
Berlin, 6 October 1943
Mr. MD I,
Mr. MD IV
For information. The Minister requests a report in this matter
[Illegible handwritten notes]
[Handwritten notes]
Mr. [?] Malzan
Mr. [?] Kremer
For information.
Are you informed about the above-mentioned cases of Greiz and Sonneberg?
[Signature] MIELKE 7 October
None of the cases are known to me.
[Initial] M 7 October
Nor to me!
[Initial] K 8 October
Mr. [illegible title] Kuemmerlein
Are the above-mentioned details known to you? I would be grateful
if you could inform me about the whereabouts of the above-mentioned
documents.
[Signed] MIELKE 8 October
[Marginal note] The cases are not known to me.
8 October
[Signed] MAX LECHNER
To Oberregierungsrat Mielke:
The documents have been thoroughly searched for in the Office of the
Ministry. None of cases mentioned are known.
[Signature] BEITZ 25 October
[Marginal note] To Oberregierungsrat Mielke. Oberregierungsrat Bender
is the coordinator of the district Jena Department I (higher level,
civil service). Doctor S. P. N. Friedrich is the deputy coordinator.
The cases mentioned are not known to me. (I am an assistant to the
general officials.)
[Signature illegible]
26 October
To Mr. Reinecke:
I would appreciate information on the coordinators in Department I.
[Signature] MIELKE
25 October
Registered
To Ministerialdirector Letz:
I would be grateful to you for information as to whether you are
informed about the cases of Greiz and Sonneberg. The peculiar method
of not answering special questions is generally known throughout the
entire Reich. It is unbearable for people with character and it is an
impossibility for decent people or members of the Party. In my opinion
it would come to an end at once if one is quite candid and would tell
them the whole truth about the P.K. I personally must persist in the
demand for complete equality and the corresponding etiquette. I have
just given orders to the Oberregierungsrat [illegible name] to raise
objections against certain abuses in a suitable manner at the Reich
Security Main Office.
[Signature] VOLLMER 27 October
[Marginal note] to IV a 2745/43 g
[Handwritten notes]
To be submitted first to President Dr. Friedrich.
Are you acquainted with these cases (Greiz and Sonneberg)? Not
known to me.
[Signed] Dr. Friedrich
28 October
[Marginal note] to IV a 2745/43 g. _Sealed!_
To Ministerialdirector Dr. Vollmer:
The cases of Greiz and Sonneberg have not been known in Department
I. Moreover, I know from documents, which the minister produces from
time to time out of his private files, that the Security Service
takes up special problems of the administration of justice with
thoroughness and makes summarized situation reports about them. As
far as I am informed, a member of the Security Service is attached to
each judicial authority. This member is obliged to give information
under the seal of secrecy. The procedure is secret and the person
who gives the information is not named. In this way we get, so to
say, anonymous reports. Reasons given for this procedure are of
State political interest. As long as direct interests of the State
security are concerned, nothing can be said against it, especially
in wartime. Moreover, as far as for instance evaluation of personnel
of less important nature, questions concerning the judiciary or
general “reports on public opinion” are concerned, I do not regard the
anonymity as harmless. The danger exists, that people will be trained
to snoop around, that unjustified denunciations will occur and that an
atmosphere of mistrust will be created. There can indeed be no question
of cooperation between the [Ministry of] Justice and the Security
Service curing such a procedure. On the other hand the minister may be
interested to know how the [Ministry of] Justice is criticized outside
the official channels of appeals. In any case the secret, one-sided
Security Service reports cannot be a basis for the establishment of
facts and certain conclusions. They may provide hints.
Berlin, 29 October 1943 [Signature] LETZ
[Marginal note] to IVa 2745/43g
PARTIAL TRANSLATION OF DOCUMENT NG-327
PROSECUTION EXHIBIT 359
LETTER FROM LAMMERS TO THIERACK, 23 OCTOBER 1942, STATING THAT THE
OPINION OF THE GAULEITER HAS TO ACCOMPANY CLEMENCY CASES SUBMITTED TO
HITLER
The Reich Minister and Chief of the Reich Chancellery,
Rk. 779 B g
[Stamp]
Reich Ministry of Justice
25 October 1942
Berlin W 8, 23 October 1942
Voss Strasse 6 at present,
Field Headquarters
SECRET
To the Reich Minister of Justice, Dr. Thierack
[Handwritten] has been submitted
[Signed] EBERSBERG
Subject: Consultation of Gauleiter in clemency cases
Dear Mr. Thierack!
The Fuehrer ordered that in future in all cases submitted to him for
clemency, the expression of opinion by the Gauleiter[276] has to be
obtained. Details should be learned from the attached copy of my letter
to the Minister of State and Chief of the Presidential Chancellery of
the Fuehrer and Reich Chancellor, whom I requested to contact you.
Heil Hitler!
Very truly yours,
[Signed] DR. LAMMERS
[Handwritten] taken care of IVa 1729/42g-1728/42g
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[277]
_DIRECT EXAMINATION_
* * * * * * *
DR. WANDSCHNEIDER (counsel for defendant Rothenberger): We
are now coming to a group of problems which were set down in Exhibits
38 and 39.[278] The exhibits are concerned with a discussion between
Himmler and Thierack, in the presence of Dr. Rothenberger, as is said
at the beginning of the transcript of 18 September. Dr. Rothenberger,
would you tell us, please, who was your main opponent outside the
administration of justice?
DEFENDANT ROTHENBERGER: Himmler, as the Reich Leader SS.
That he was my opponent I had known for many years. I gathered that
on the one hand from the fact that at public demonstrations I had
repeatedly in view against all measures which had been taken against
the administration of justice at the instigation of Himmler.
In particular, I remind you of the measures described in the Schwarze
Korps against the German judges. I remind you of his measures which
amounted to a correction of sentences. It was natural that the view
which I had expressed in public as to what those measures would lead
to, that Himmler through the SD service would have been informed of
that. For me it was a matter of course, that Himmler would have been
informed of the contents of my memorandum to Hitler, and that was
proved right during the discussion later on. About that discussion
Himmler knew that I had warned Hitler of the development of the
administration of justice and of the development of the Reich as a
whole, a development towards becoming a pure power state.
In particular Himmler knew from the memorandum[279] that I had
requested that the entire administration of penal justice was to lie
exclusively in the hands of the judiciary. That that constituted a
camouflaged attack on the administration of justice by the Gestapo was
naturally obvious to Himmler. That view of mine, namely, that Himmler
for that reason harbored great distrust toward me, was confirmed to me
not in the course of the discussion, but it was confirmed to me by the
results of that discussion; and it was confirmed without any doubt. I
saw Himmler once in my life and for the following reason:
He had sent out an invitation. Thierack said to me that I was to go
along with him because it was a first official visit. We had only just
assumed office and this was supposed to be my first official call on
Himmler. We had not heard before what points were to be discussed
there. One could only rely on suppositions. My supposition was that
the problems which for years had been an object of dispute between the
administration of justice and the police would probably be mentioned
in the course of this discussion. Among those problems there were, in
particular, the following questions:
On the one hand, the question of the transfer of the prosecution to the
police, which has been mentioned here a few times, but the significance
of which, I believe requires some explanation. I mean, it is
significant for the entire set of proceedings and trials in Germany.
The German prosecution at this trial here has repeatedly been described
as the most objective authority in the world. Naturally, that was an
exaggerated expression. But contrary to the Anglo-American procedure,
what is correct about that statement is that the public prosecutor,
because he has to deal with all elements that speak in favor of the
defendant as well, constitutes a very far-reaching protective element
for the defendant as well.
This is therefore for the entire method of proceedings, the position
of the judge and in particular also the position of the defense
counsel--which for that reason, too, is an entirely different position
than it is under Anglo-American procedure--of essential importance.
If Himmler would have gotten the prosecution into his hands, which
he had wanted to do for years, that agency which hitherto had been
objective would have been in Himmler’s hands. Himmler’s struggle
against the administration of justice would have been carried into
the courtroom. That explains my great misgivings against that demand
of Himmler’s. For this reason, as far as I knew this problem would
become acute, I considered it my duty, although formally it did not
concern me, but because it was a basic question for the reputation
of the judiciary as such, I tried with all means at my disposal to
persuade Thierack before the discussions that on no account was he to
give way on that point. I had all the more cause to do so because I
had the feeling that Thierack wavered on that point. I did not know, I
only heard that here, that actually on the occasion of the Elias case
which has been mentioned here, in Czechoslovakia he in a certain way
had already committed himself. I made particular use of this factor
without Thierack--I told him that if the prosecution would no longer
be under the administration of justice, you yourself, who directs the
penal administration of justice, will lose the ground under your feet.
What I said was, “you yourself will saw off the branch on which you
are sitting.” That factor evidently did have some effect upon him; it
evidently succeeded.
The second problem which would probably be broached by Himmler was the
question of the community law concerning asocials, which has already
been mentioned. I shall refer to that briefly later, because that
problem was discussed during the conference.
There were two further points which I thought would be broached. They
were old hobby horses of my own. I am referring to the question of
the Schwarze Korps and that of the correction of sentences. Thierack
himself said to me before the conference on the way there--we went
there together--“Will you keep in the background at the conference,
please, because, on the one hand, the problems will probably concern
matters which do not affect you, that is to say, matters of the
administration of penal justice; and furthermore, I do not want
an argument to arise between us again, which is quite apparent to
outsiders, such as occurred during our visit to Lammers a month ago.”
Q. What happened at the conference itself?
A. It is nearly 5 years ago now since that conference took place, but
as it was very impressive I believe I can remember it fairly well. It
was not a formal meeting, since only a very small circle of people
attended. It was, in fact, an informal conversation, interrupted by a
supper. Himmler was the main speaker. I noticed this manner of speaking
was very much like that of Hitler’s.
PRESIDING JUDGE BRAND: Wouldn’t it be possible for you to
concentrate a little more on the actual material features of the
conversation?
DEFENDANT ROTHENBERGER: Yes.
Q. We don’t care how he spoke, or about his manner.
A. Yes, Your Honor.
To begin with, he made general remarks about the war situation, of
which he took a favorable view. I do not remember now the sequence
of the individual points which are mentioned in the minutes, but
I do believe that he then immediately went over to the subject of
the transfer of prisoners, that is to say, the transfer from the
administration of justice to the police. That was a problem which was
entirely new to me. He said that through his organizations he had had
the facts established that the prisoners under the administration of
justice, on the one hand, were badly overcrowded, and furthermore
that in some cases at those prisons, work was still being performed
which was not essential to the war effort. He mentioned handicraft and
pasting together of paper bags. He himself, on the other hand, had
constructed large armament works. He was of the opinion that at a time
when every German, be it the soldier at the front or the man or woman
in the homeland, was working for the war efforts, the prisoners too,
in one form or another, should make their contribution toward the war
effort.
When he had explained that to us in great detail, it seemed to me that
Thierack’s attitude on that point was not altogether clear. On the
contrary, I had the impression that Thierack had understanding for that
request which Himmler had put forward.
No details were discussed as to what type of prisoner Himmler wanted
transferred, but it was said in a general way that only prisoners with
long terms would be considered for such transfer, since prisoners with
short terms would have to be discharged again at an early date.
I myself kept silent on that point to begin with, because for one
thing I did not feel certain on that question, and secondly, because
Thierack had especially asked me to hold back. However, in the course
of our talk--I do not remember whether it was immediately or whether
it was later on--the conversation turned to the subject of the general
relations between the administration of justice and the police. That
conversation dealt mainly with the old arguments concerning the
Schwarze Korps and Himmler’s correction of sentences. Himmler was of
the opinion that the administration of justice had failed in various
instances, and for that reason he had been compelled to intervene.
Since Thierack, on that point too, did not take up a clear attitude
in favor of the administration of justice, I considered it my duty to
interfere. Naturally, I was cautious in my manner, but I was clear
as far as the matter itself was concerned. I had just been appointed
by Hitler and had the belief that Hitler was backing up my plans. I
said that the problem of the police and the administration of justice
could not be considered just from the point of view of one single
sentence which might have been correct or incorrect, but that one must
regard that problem from the general point of view of the reputation
of the judiciary. I said that the reputation of the State as such was
dependent upon the reputation of the judiciary.
In speaking of these things I referred to my memorandum and my opinion
that Hitler had approved my memorandum on those points, too. I said
that from that point of view I, too, considered it incorrect for the
administration of justice to transfer prisoners to the police. If the
prisoners were not being put to sufficient use for the war effort,
the administration of justice itself would have to see to it that
sufficient use would be made of such prisoners.
Himmler listened to my remarks with comparative calm. It seemed to me
that he had understanding for what I was saying.
He said that he had never heard of these problems from that angle, and
he said that in future he would instruct the Schwarze Korps to refrain
from attacking the administration of justice; he would also stop the
police from intervening in the case of individual sentences.
These two subjects had thus been concluded. The question of the
transfer of prisoners seemed to me to remain undecided. Besides that
point a few other problems were discussed, for example, the question of
the asocial law.
Q. I wonder, would you for my convenience tell me the technical name of
the asocial law, either by date or in any other way? What law are you
referring to as the asocial law?
A. May it please the Court, that is not a law in the sense of ever
having become a law. It is merely a draft which dealt with the question
as to whether the police were to be allowed to arrest asocial elements.
Have I made myself clear, Your Honor?
Q. In saying “the asocial law,” you didn’t mean that there was any law
at all?
A. No, no, I did not. No, it never became law. I will explain that in
a moment. I was familiar with that problem from my time in Hamburg.
Yesterday I explained, as is evident from Document NG-387, Prosecution
Exhibit 400,[280] that I had put forward the proposal that if such a
law were to be issued at all, a judicial authority would have to be set
up in order to decide as to who, in fact, was an asocial element. That
same question was brought to my attention immediately when I assumed
office in Berlin. I believe it was in my first or second week there
when a Ministerialdirigent Rietsch came to see me. He said to me--Mr.
Under Secretary, you must help us. Minister Thierack is prepared to
agree to that law, and that would be impossible, because that law would
give to the police alone the right to determine who is an asocial
element. Since a large number of the criminal elements are also asocial
elements, such a regulation, that is to say if the police were to
have the right to determine who was asocial, that would mean that the
penal courts would be completely eliminated. Together with Rietsch,
before the conference at Himmler’s, I had had a lengthy conversation
with Thierack on the matter, because this problem again constituted a
fundamental question of the administration of justice. Thierack did
not give his approval, even when Himmler broached that question at the
conference and asked Thierack to give his consent, Thierack remained
firm. That is evident from item No. 7 of the document. As I heard later
on, negotiations were held between the Referenten, and the law never
became a law in effect, at least not during my period of office, and I
do not believe that it became effective afterwards. The further point
which was discussed was the problem which I think has been discussed
in almost too much detail here, that of the justice of the peace. It
was astonishing and surprising to me that Himmler had any interest at
all in that problem. He was fairly well informed about the historical
foundations both abroad and in Germany, and it was equally surprising
to me that he concurred in my opinion--I talked about that subject, my
opinion being that the office of the justice of the peace was not to
lie in the hands of the Party. That is evident from item No. 3 of the
document.
Various other questions were discussed at length, questions which were
largely of a technical nature, partly anyhow. I do not remember the
order in which these questions came up for discussion. I am merely
mentioning the question of age in regard to responsibility before
the law [Strafmuendigkeit]. I believe that Himmler mentioned a few
cases where children of only 13 years of age had committed punishable
acts and where he was of the opinion that one had to punish them,
whereas under the previously existing legislation a child only becomes
punishable at the age of 14. Questions concerning the penal register
were then discussed, concerning ordinances to be issued jointly by the
administration of justice and the police. I do not remember for certain
whether punishment by flogging was discussed in my presence. I think it
is possible. I am certain that while I was there the question of the
transfer of the prosecution was not touched upon at all. This document
contains a reference under 13 where Thierack says “I flatly rejected
Himmler’s demand for the transfer of the prosecution to the police.”
DR. WANDSCHNEIDER: Dr. Rothenberger, may I interrupt you
before we continue? When you spoke about the correction of sentences
you said that the correction of sentences, according to Himmler’s
remarks, was to be stopped. The document of 18 September 1942 itself
shows that beyond that a number of details were laid down as to what
procedure was to be adopted in correcting sentences, concerning the
relation between Himmler and Thierack and with the corresponding
participation of Bormann. Were such particulars discussed in your
presence?
DEFENDANT ROTHENBERGER: No. Himmler merely emphasized that a
unilateral interference such as has occurred hitherto would no longer
be permitted by him.
Q. Would you continue, please?
A. The last point which is contained in the document was also certainly
not discussed at all. I am referring to the question of the transfer of
the penal administration of justice concerning Jews, Poles, gypsies,
Russians, and Ukrainians.
Q. Dr. Rothenberger, you know the transcript of 18 September, those
minutes where it says that Himmler and Thierack led the discussion and
that you were present. How can you explain it that those points which,
according to you, were not mentioned in your presence must have been
kept secret from you or deliberately cannot have been discussed in your
presence?
A. The file note which Thierack wrote personally I saw for the first
time here.[281] Today it is altogether clear to me how that file note
came about.
Added to the file note in NG-059[282] is a notation signed by Ficker,
Reich Cabinet Counsellor.
That notation confirms that following the conference which I attended,
the Reich Minister of Justice and Reich Leader SS, I quote, “had a
private conversation.” When I think it over as to why such a talk
between the two alone took place, today I realize fully that Himmler
and Thierack quite deliberately excluded me and misled me, in
particular, concerning the most delicate points.
What their motives were, I naturally can’t say but in accordance
with all the previous and subsequent events, immediately after the
conference, I am bound to assume that Himmler and Thierack did not
exactly regard me as their ally in such plans, and that during the
first conference which I attended, they quite deliberately created the
impression that they were making certain concessions. As to whether
they, themselves, were not certain of themselves, as to whether Hitler
really had a certain amount of understanding for my plans I cannot
tell of course; but as far as the early period is concerned, that
is possible. And now Thierack, I do not know when, for it cannot be
seen from the file note (_654-PS, Pros. Ex. 39_), which bears no
date, summarized the results of both discussions; that is to say, the
conference which I attended and the following conversation between
Himmler and Thierack alone, in this file note, without differentiating
between them. It seems that a part of this file note was added by him
only at a later time. I gather so from the original document, according
to which some of the document was added later on by a different
typewriter. That part concerns the last item, point 14, the question of
the transfer of the administration of penal justice over Jews and Poles.
Q. Dr. Rothenberger, may I put another question to you in this
connection? If I understood you rightly, you wanted to tell us that
Thierack and Himmler were uncertain toward you and did not quite know
where they stood with you. To what do you attribute that feeling that
they had, that they did not quite know where they stood with you?
A. Mainly I think that feeling was caused by my memorandum. I assumed
that Himmler knew that memorandum and that Himmler was not certain
whether Hitler was really supporting the ideas of that memorandum.
Q. Did the unusual way in which you came to Hitler play any part in
that?
A. No doubt, for Himmler and Thierack both knew that I had been
appointed by Hitler himself in an unusual manner.
PRESIDING JUDGE BRAND: You have covered that.
DR. WANDSCHNEIDER: Thank you. May it please the Tribunal, may
I continue with my examination?
PRESIDING JUDGE BRAND: Yes.
DR. WANDSCHNEIDER: What was your first impression after the
conference?
DEFENDANT ROTHENBERGER: My first impression after the
conference was favorable. Immediately after the conference, I told
Reich Cabinet Councilor Ficker so. That too can be seen from Document
NG-059, Prosecution Exhibit 38. I believed that that favorable
impression was due to the fact that in regard to the main problems of
the administration of justice, Himmler had not prevailed with his view.
He had not asked to have the prosecution transferred. Concerning the
correction of sentences and that of the Schwarze Korps, he had given
assurances, in the problem of the asocial law, too, he had withdrawn
his demand, and the question of the transfer of prisoners had at any
rate remained open.
After the conference, the next morning in fact, I left by myself.
Thierack remained behind--I do not know for how long he stayed. I went
to Hamburg via Berlin to join my family in Hamburg, and there, too, I
talked to a friend in a very positive way about this very important
meeting which had concerned the administration of justice. When I
returned to Berlin, the great disappointment began. Already after a few
days, there was among the files which lay on my desk, a paper. That,
too, was a file note by Thierack. It was a much briefer file note than
the one here. As I remember it now, it concerned a conference with
Goebbels. That file note indicated, in what form I do not remember now,
that Goebbels had voiced to Thierack the idea of the extermination
through work. That file note, was not addressed to me. It must have
come into my possession by mistake.
When I read it, I could hardly comprehend that idea to start with.
I could not comprehend what was meant by it. Feeling upset, I went
upstairs to see Thierack immediately and asked him what it was all
about. Thierack said to me with a certain amount of arrogance and
condescension, “Do not get excited. It is correct that I talked to
Himmler alone afterwards, that was the first time I heard of it, and in
the course of that talk, this question, too, was discussed by Himmler
and myself. But I rejected that demand on the part of Himmler with
determination. I did that for humane reasons alone, and Himmler too
understood that at the time everybody in Germany was needed.”
During that talk, Thierack took a paper out of his desk, and on this
paper--which I did not read myself, but I could see it--Thierack wrote
in the margin so that I could see it, in his green pencil, “Settled” or
“Rejected.” I believe it was settled, as I can see now. Evidently, he
wanted to confirm to me his assertion that this idea of extermination
by work had been dropped by writing down that remark. I had only been
in office for 3 weeks at that time, and I was still so innocent that I
did not realize that those men might really carry out such an idea, and
that they were deluding me.
Q. Dr. Rothenberger, in connection with this group of questions, a
number of documents have been submitted about which you will have to
give us your views. I now want to enumerate the various documents and
to ask you to give us your views.
* * * * * * *
We are now going to deal with Exhibit 264,[283] document book 4-A, page
42, that is a letter from the Reich Ministry of Justice to the general
prosecutors, dated 22 October 1942, it is signed by Crohne, and it was
connected with the carrying out of the agreement of September 1942.
A. I never saw the letter either, which was natural, because it was a
problem which concerned penal law and the administration of penalties.
Such matters were not submitted to me, on principle.
Q. As Exhibit 268,[284] the prosecution submitted a document which
was signed by Dr. Eichler, and is dated 1 April 1943; it concerns the
transfer of Jews, Poles, etc., into concentration camp. Did you ever
hear of such a letter?
A. No, I never saw that letter either.
Q. Finally, a gruesome letter from Thierack to Bormann, dated 13
October 1942, plays a part. That letter was read into the record and
was not submitted as a separate document--if I remember correctly.
The court knows it, did you ever see this letter from Thierack of 13
October 1942?[285]
A. No, I do not know that letter either.
* * * * * * *
Q. And then at the end of 1943, how did your leaving the Reich Ministry
of Justice come about?
A. Yesterday I briefly mentioned the fact that as early as in April of
1943, after Thierack had tried to transfer me to the Reich Supreme
Court in January but had stated that the time was not yet ripe for
that, at that time I offered him my resignation which he rejected.
Furthermore, I had mentioned that at the same time that did not keep
him from starting investigation proceedings against me the same time
of that year 1943 without my knowledge for the allegedly illegal
procurement of furniture. That Thierack was primarily interested in
getting rid of me in a manner which would give the impression to the
outside world that I was being dishonorably discharged is proved by
what I shall say briefly about my finally leaving the office.
Yesterday I also mentioned the fact that Thierack, as early as
September 1942, kept my book for about 3 months. The German
_Judge_--
PRESIDING JUDGE BRAND: You need not repeat what you said
yesterday; we remember it. Go on to something new.
DEFENDANT ROTHENBERGER: Yes. After Thierack had finally turned
over this manuscript to the Party Chancellery and after it had been
examined there for about 6 months, about in August or September--I
am not quite sure about that date any more--of 1943 an SD report was
received in the Ministry. Thierack put that SD report to me, and he
told me it could be seen from that SD report that a plagiarism was
contained in that book. That book contained a short historical review
of the position of the judge in the old Germanic and Franconian era,
and several sentences concerning that era were allegedly taken from
a book by a Professor Fehr. Professor Fehr, Thierack told me, was
an emigree, who lived in Switzerland, and a democrat; and there was
concern that one day the London broadcasting station might broadcast
the information that the German reform of the administration of
justice really emanated from an emigree who was a democrat and lived
in Switzerland. He said that was extremely dangerous from the point of
view of foreign policy, and that I had to clear it up.
I did not know the name “Fehr” at that time at all. As can be seen
from the preface, a considerable number of my assistants in Hamburg
had participated in the work on this book, and one of these assistants
dealt with the historical part of the book. One year before, when no
mention was made about the possibility of publishing that book, he had
compiled that historical data for me, which I needed for a lecture that
I was supposed to give in the Reich Ministry of Justice. The other day
I stated that in August of 1941 I gave a lecture in the Reich Ministry
of Justice about the segregation of the profession of judges from the
usual civil servant class. That historical compilation was made for
that purpose.
I had the matter clarified by that assistant, Dr. Brueckmann, and he
said yes, that was correct, he had used several sentences from a book
by Professor Fehr compiling the data, without having any opportunity at
that time to know that it would lead to publication.
Thereupon, I told Thierack what the causes for that oversight had
been. At no time did anybody, not even Thierack, make the assertion
that there was any guilt on anyone’s part. But I told him the man who
could be interested to see that some sentences of a general historic
content such as could be found in any book, that such sentences would
be also contained in my book would only be Professor Fehr. Therefore, I
wrote a letter to Professor Fehr, explained it to him, and asked him if
that should be necessary for an interview; and before that conference
took place--it was intended to take place in January 1944--Thierack
succeeded in having me dismissed, and that in the following manner: I
was just on a duty trip at the beginning of December 1943. During that
time he went to Lammers and reported to Lammers that an application
had been made by professors of the city of Hamburg who, he said, had
complained that I was still in office. That in other words, would have
been colleagues of mine, because I myself was a professor at Hamburg at
one time. He added that from the point of view of foreign policy one
could no longer maintain the responsibility of keeping me in office,
and therefore, he asked that Lammers should suggest my dismissal to
Hitler. I was informed about that at the end of December 1943, that
is to say, before that conference with Fehr was to take place. At the
end of 1943 I was suddenly called on the telephone--I was at that time
with my family, it was during Christmas--[and told] that I had to come
to Berlin immediately and take Thierack’s place temporarily because he
wanted to join his wife. Thierack called me into his office and told
me, “Hitler has directed that you be dismissed.” Upon my question,
“Why,” he answered that the matter with Fehr had gone so far on account
of the application made by the professors from Hamburg that it was no
longer bearable to keep me. I told him that he himself didn’t believe
that, and I wanted to leave the room. Thereupon suddenly he became
very friendly and soft and told me, why, of course the matter of that
book was just the external pretense, but first of all, in the course
of this year and a quarter, I had never succeeded in establishing good
relations with the Party Chancellery and the SS. Moreover he said I
was accused of having taken part in the funeral of Guertner, which I
didn’t understand at all, how anybody could be so stupid to charge one
with having attended the funeral of an extremely decent former Reich
Minister of Justice. I replied if these are the real reasons, then
I was proud of it. Before I left him he again lied to me by saying,
yes, he would have liked very much to nominate me for the position of
president of the Reich Supreme Court, but Lammers had raised opposition
against that. Then a few days later I saw Lammers in order to inquire
about the background of the story. Lammers told me just the opposite.
It was he, he said, who tried to offer some office of some kind to
me, but Thierack had been the person who rejected that. Through these
circumstances the separation which had been pending for a long time
actually took place, and without a new office, without gratitude,
and without any compensation of any kind I left. And in accordance
with that was the publication in all German newspapers where the
following notice appeared, and I quote: “Change of office in the Reich
Ministry of Justice. Upon the suggestion made by the Reich Minister of
Justice the Fuehrer, after effecting the transfer of Under Secretary
Rothenberger, into Wartestand [Civil Service inactive status] has
appointed Ministerialdirektor Klemm, who up to that time was in the
Party Chancellery, Under Secretary in the Ministry of Justice.”
* * * * * * *
b. Judges’ Letters Written by Thierack and Defendant Klemm
TRANSLATION OF DOCUMENT NG-500
PROSECUTION EXHIBIT 90
CIRCULAR LETTER FROM THIERACK TO JUDGES, 7 SEPTEMBER 1942,
EXPLAINING THE ESTABLISHMENT AND FUNCTION OF
THE JUDGES’ LETTERS
The Reich Minister of Justice
3110/2-IVa 4 1902
Berlin W 8, 7 September 1942
Wilhelmstrasse 65
Telephone: 110044
Long Distance: 116516
To:
1. The Presidents of the Reich Supreme Court and People’s Court
2. The Presidents of the District Courts of Appeal (except of
Prague)
3. The Presidents of the District Courts (with extra copies for
the local courts)
For information:
1. The Chief Reich Prosecutor at the Reich Supreme Court and
People’s Court
2. The Attorneys General
3. The Chief Public Prosecutors
Subject: Judges’ Letters
I will, can, and must not tell the judge who is called to preside
over a trial, how to decide an individual case. The judge must
remain independent in order to be able to carry the full personal
responsibility for his decisions. I therefore cannot order him to use
a certain legal interpretation but only try to convince him how he can
help the nation by correcting or regulating with the aid of the law a
life that has gotten into disorder or is ripe to be brought into order.
In this respect the profession of the judge and that of the physician
are akin--he gives aid to the compatriot who asks him for help and thus
prevents damage to the community. The judge, like a physician, must be
able to eliminate the seat of a disease or perform operations like a
surgeon.
This conception of the duties of the administration of justice has
already been accepted by the German jurists to a great extent. Its
practical conclusions, however, have not been fully applied yet in the
field of the administration of justice.
To aid the judge in fulfilling his high duty in the life of our
people, I have decided to publish the “Judges’ Letters.” They shall be
distributed to all German judges and public prosecutors. These judges’
letters will contain decisions, which I consider to be especially
worthwhile mentioning on account of result or argumentation. With these
decisions I intend to show how a better decision could or should have
been found; on the other hand good, and for the national community
important, decisions shall be cited as examples.
The judges’ letters are not meant to create a new casuistry, which
would lead to a further ossification of the administration of justice
and to a guardianship over the judges. They are rather aimed at telling
how judicial authorities think National Socialist justice should be
applied and thereby give the judge the inner security and freedom to
come to the right decision.
The contents of these letters are confidential; the chief of an office
shall keep them personally, and let every judge and public prosecutor
take notice of them against receipt.
For the publication of the Judges’ Letters the collaboration of all
the judges and prosecutors is needed. I expect suitable decisions from
all branches of justice to be presented to me for publication. When
published, neither the judge nor the tribunal pronouncing the sentence
will be named.
I am convinced that the Judges’ Letters will help essentially to adjust
the administration of justice uniformly along National Socialist lines.
[Typed] [Signed] DR. THIERACK
[Certified]: [Signed] MASSMUND
[Stamp] As Chief Secretary of the
The Reich Ministry of Justice Ministerial Chancery
PARTIAL TRANSLATION OF DOCUMENT NG-298
PROSECUTION EXHIBIT 81
THE FIRST ISSUE OF THE JUDGES’ LETTERS, 1 OCTOBER 1942
RICHTERBRIEFE [Judges’ Letters] Communications of the
Reich Minister of Justice, Issue No. 1, 1 October 1942
_Confidential_
German Judges
According to ancient Germanic interpretation of the law, the leader of
the nation has always been its supreme judge. When the leader therefore
invests another person with the authority of a judge, this means that
the latter not only derives his judicial power from the leader and is
responsible to him, but also that leadership and judgeship have related
characters.
The judge is therefore also the guardian of national self-preservation.
He is the protector of the values of the nation and helps in the
annihilation of the unworthy. He regulates those functions of life,
which are considered diseases in the body of the nation. Justices
vested with absolute authority are essential for maintaining a true
national community.
On account of this task, the judge is the direct assistant of the
leadership of the State. This position renders him prominent, but also
shows the limits of his tasks which cannot, as a liberal doctrine
assumed, lie in the supervision of the leadership of the State. For,
if a state does not have an organization which grants the leadership
to the best, the administration of justice cannot substitute this
selection by its activity.
The judge is the embodiment of the wide-awake conscience of the nation.
Any state is bound to fall if honesty and common sense do not form the
standard of values in the national community. It is the task of the
judge to see that this is done. In rendering judgment he must always
show the people his adherence to this rule.
These tasks place the judge in the center of the administration of
justice. They show the profession of judges as one of the earliest
professions--to be compared with that of the farmer and the soldier.
These tasks can only be fulfilled by men who are mentally free and
honest, and who possess a high sense of responsibility, shouldering
this responsibility gladly, and conforming by their inner and outer
bearing to the picture of a judge as the German people see it. The
judges must therefore become a corps of judges, which represent an
elite of the nation. But this must not lead to the judge keeping aloof
from the people; on the contrary he has to live with and among his
people and know its needs and sorrows in order to be able to help.
Such a corps of judges will not slavishly cling to the letter of the
law. It will not anxiously look for cover by the law, but aware of its
responsibility, it will find within the bounds of the law a decision
which shall be the best guide for the life of the community.
The war for instance makes demands on a judge, which are totally
different from those in quiet peace times. The judge has to adapt
himself to these changes. He can only do this when he knows the
intentions and aims of the State leadership. The judge must therefore
always be in close contact with the leadership of the State. This
is the only way to guarantee the performance of his high task for
the good of the community, and it prevents the administration
of justice--detached from its real problems in the life of the
people--from being considered as a body for its own ends. From this
ensues the meaning and necessity for the guidance of the administration
of justice.
Guidance in the administration of justice does not mean to impose
upon the judges a certain view of the law. The judge must remain
independent, otherwise he will no longer be judge. But the State can
and must lay down the general line of policy, which judges must follow,
if the administration of justice shall fulfill its obligations.
I have therefore decided to issue Richterbriefe which will be sent
to all German judges and public prosecutors. These Judges’ Letters
shall mainly contain decisions which I deem to be especially worthy
of interest, because of their findings or argumentation. By these
decisions I want to show how better findings could and ought to have
been arrived at; on the other hand, good decisions which are essential
to the community shall be held out as exemplary.
There is yet another consideration, which caused me to issue these
“Judges’ Letters”--The outlined view of the judge’s tasks has carried
its point with most of the German lawyers, its practical effects on the
administration of justice, however, has not yet been totally realized
and cannot have been fully realized yet in view of the traditional
training of lawyers. Therefore, I want to help the judge by means of
the Judges’ Letters to accomplish his high duties in the life of our
nation. I want to impress upon him how he must help and protect the
community.
The Judges’ Letters are not intended to create a new cult of decisions,
which would lead to further formalism in the administration of justice
and to subjecting the judges to tutelage. They are only to give an idea
of how the leadership of justice wishes to apply National Socialist
law, in order to give the judge self-confidence and freedom to find the
right decision.
The contents of the letters are confidential; they are handed to each
judge and public prosecutor by the chief against receipt.
I am convinced that the Judges’ Letters will essentially contribute to
the creation of a uniformly directed German corps of judges.
Berlin, 1 October 1942
[Signed] DR. THIERACK
Reich Minister of Justice
1. PUBLIC ENEMIES, ESPECIALLY BLACK-OUT OFFENDERS[286]
Sentences imposed by several courts in the years 1941–1942
1. A 19-year-old laborer who had been employed by the Reichsbahn [Reich
Railroad] since 1941, stole, soon after his appointment in the winter
of 1941–1942, during black-out hours, luggage and parcels from the
luggage vans of long distance trains, and parcels from mail vans. There
were in total 21 charges against him.
The Special Court sentenced him to 4 years’ imprisonment as a public
enemy.
2. A 34-year-old lathe operator attempted black-out purse snatching
at the end of 1941. In the darkness he approached a woman in the
street and snatched her handbag off her arm. He was followed and
arrested. He has six previous convictions against him, among which
was theft, inflicting bodily harm, and killing by negligence. He had
been sentenced in respect of the bodily harm, because in 1931 he had
together with a Communist knocked down a National Socialist with a
fence pole.
The Special Court did not legally appraise the act as street robbery
but as theft, because the woman carried the handbag only loose on
her arm, so that the culprit did not have to use force. It regarded
him nevertheless as a public enemy, and expressed the view, that the
community should be specially protected against him. Yet the sentence
imposed was but 2 years’ imprisonment.
3. A 29-year-old laborer, who was a shirker and had several previous
convictions against him, tried in 1941 to commit black-out purse
snatching. He had just been discharged from the hospital as a
malingerer and wanted to provide himself with money. He followed two
women in the darkness in the street and reached for the purse while
passing them, but he could not pull it off, because it was held
tightly. In answer to cries for help, some men hurried to the scene and
got hold of the culprit.
The Special Court sentenced him to death as a public enemy, and added,
that persons needed special protection during the black-out in order to
retain the feeling of safety in the country for the people.
4. An 18-year-old culprit W., who had no previous convictions against
him raped a soldier’s wife during the black-out in 1941. After having
visited an inn, he accosted, about midnight while on the way home with
his 19-year-old friend P., a young woman who was going home from work
at that late hour. She rejected the men and said that her husband was
a soldier at the front and that she wished to go home without being
molested. W. hit a man, who was standing nearby and who witnessed the
incident, several times in the face without cause. Then he dragged the
woman into a lane, hit her, and raped her on a bench, breaking her
resistance by pretending to have a revolver on him. P. was waiting
nearby in the meantime but did not interfere.
The Special Court sentenced W. as a public enemy to death for rape.
P. was convicted to 5 years’ imprisonment for aiding and abetting the
criminal.
Opinion of the Reich Minister of Justice
At a time when the best men of the nation are risking their lives at
the front, and the nation is untiringly working for victory, there
is no room for criminals who destroy this will of the community. The
lawyers therefore must realize that during the war it is their duty
to exterminate the traitors and saboteurs on the home front. The law
offers enough expedients for this. The home country is responsible
to the front for peace, quiet, and order in the land. This high
responsibility lies not least of all, in the hands of the judge. In
principle, every crime counts more gravely in wartime than in peace.
The special struggle, however, is against the “public enemies” a
concept closely confined by the law. When a judge after careful
examination of the punishable offense and of the personality of the
accused decided that a criminal is to be considered a “public enemy,”
this serious decision must also be expressed with full severity by
the sentence. It is self-evident that a thief who steals goods and
property from fellow citizens after the terror raids of our enemies
deserves death only. But any other culprit too who commits crimes by
taking advantage of the circumstances of war sides with the enemy.
His faithless character and his challenge therefore deserve the
severest penalties. This applies especially to the cowardly black-out
criminal. “I do not want,” so the Fuehrer said, “a German woman who
may go home from work at night time, to have to watch anxiously that
no good-for-nothing or criminal will hurt her, for the soldier has the
right to demand that his family, his wife, and his kin at home are
protected.”
It can be said that the majority of the German judges have fully
recognized the demands of the hour. The death sentence which was
pronounced by the Special Court on the only 18-year-old criminal who
raped a soldier’s defenseless wife, also meted out to the shirker
who snatched handbags, justly puts the rights of the people in
the foreground. There are, however, still cases in which personal
consideration of the perpetrator is placed above the interests of the
absolute protection of the community. This is shown by the comparison
of the present judgments. The cunning handbag robbery at night by the
previously convicted perpetrator and the twenty-one thefts of parcels
by the 19-year-old worker are not justly punished with 2 and 4 years in
the penitentiary. The decisive element here is not whether the taking
of the handbag is legally to be considered theft or robbery--which,
incidentally does not depend on whether it was carried loosely or
pressed tightly to the body--or whether the sexual criminal has
done any particular harm. The fact that in wartime he assaults in a
cowardly and cunning manner a defenseless woman and that he endangers
the security in the blacked-out streets puts him on a level with the
traitor. The safeguarding of our community demands that in wartime in
such cases punishment should serve, above all, as a deterrent. Here
prevention is always better than cure. Every punishment of a “public
enemy” which is too mild will sooner or later be detrimental to the
community and carries with it the danger of disease-like spreading
and gradual disintegration of our defense. It is always better, the
judge exterminates such a bacillus in good time than having to face
helplessly a contaminated multitude later on. In the fourth year of war
the criminal must not gain the impression that the community relaxes in
combating him; he must feel always anew that the German judge fights
the internal enemy with the same determination as the soldier fights
the external enemy on our fronts.
2. SEXUAL CRIMES COMMITTED AGAINST CHILDREN AND MINORS
Several Verdicts from the Year 1941–1942
* * * * * * *
The Opinion of the Reich Minister of Justice
* * * * * * *
3. APPLICATION FOR COFFEE RATIONS BY JEWS
Decision of a Local Court of 24 November 1941
In autumn 1940 a special coffee ration was distributed to the
population of the town B. Among others a large number of Jews
applied for this coffee ration which, however, they did not receive
as they were excluded from the distribution _per se_. The food
authorities saw in this conduct an offense against the distribution
regulations and imposed fines on the Jews. Thereupon several hundred
Jews appealed against them and asked for a court decision, so that
about 500 identical cases were pending simultaneously with the local
court in B. The judge informed the food authorities that in his opinion
the imposing of fines could not be upheld for legal reasons--one of
which was the statute of limitations--and recommended rescinding them.
The food authorities did not share this legal opinion of the judge
and refused to rescind the fines but suggested to the court that it
mention only the point of limitation in case the fine should be set
aside. Thereupon the court rescinded the fine in one case; the other
cases were to be dealt with according to prescribed procedure and with
reference to this decision.
This ruling, in seven sections and covering 20 pages, contains verbose
interpretations of the factual and legal position. The introduction
tries to justify in long tirades the length of the reasoning. Then
it is set forth in detail that the Jews had been able to register
with their grocers _before_ the official announcement of the
impending coffee distribution, since the distributors had been informed
in advance by their respective economic groups. “The contrary
interpretation on the part of the food authorities was absolutely
incompatible with the established facts,” as the food authorities had
“overlooked” various factors. After an entirely immaterial description
of the attitude of the individual grocers toward the Jews after the
announcement of the decree, the document deals in detail with the
investigations undertaken by the food office. The ruling continues that
the court had tried in vain to cause the public prosecutor to take over
the pending cases and deal with them in the regular manner, but that
it had also refused on the grounds that no punishable act had been
committed by the Jews, or, at least, that it falls under the statute
of limitations. After again dealing with the fruitless efforts of the
court to have the food office withdraw the fines, a series of factual
and legal questions are declared irrelevant, but nevertheless discussed
in detail beforehand. The following nine pages of the ruling deal with
the examination of the legal question whether the registration of the
Jews must be regarded a punishable act according to the distribution
regulations. They arrive at the conclusion that this is not the case
and that it would be wrong to prove it “by means of an abstruse
interpretation of the law.” The long interpretation culminates in the
summarizing statement that the Jews had not committed a punishable act.
Opinion of the Reich Minister of Justice
The ruling of the local court, in form and content amounts to pilloring
a German administrative authority by the Jews. The judge should have
put himself the question: How will the Jews react to this 20-page-long
ruling, which certifies that he and the 500 other Jews are right and
that he won over a German authority without losing one word about the
reaction of our own people to this insolent and arrogant conduct of the
Jews. Even if the judge was convinced that the food office had arrived
at a wrong judgment of the legal position, and if he could not make up
his mind to wait with his decision until the question, if necessary,
was clarified by the higher authorities, he should have chosen a form
for his ruling which under any circumstances avoided harming the
prestige of the food office and thus putting the Jew expressly in
the right. The freedom from punishment for the unauthorized coffee
registration was, even according to the law then in force, definitely
doubtful. The fact that Jews were not entitled to a supply of genuine
coffee was self-evident even if it was not specially mentioned in
the official decree. Registration had taken place by presentation
of a coupon of the ration card and by having this card stamped. If,
considering the special circumstances of this case, this had been
construed as an abuse of the right to draw rations, it could have
resulted in an affirmation of the punishable character of their act.
The impudent, provoking conduct of the Jews would have made it a
“particularly serious case.” In this case an offense could legally have
been assumed. To such an offense a longer statute of limitations would
have applied.
A legal view of this kind on the part of the food office need not have
been regarded as “untenable,” “fabricated,” or “abstruse.”
Apart from this it was not necessary to point out to the Jew that he
was only one of many members of his race who also had complained.
Just as superfluous was the information that the food office in the
preceding negotiations had refused to withdraw the fines and that
the local prosecutor, through its refusal to take up the case, had
also shown its opposition to the food office. These points were
irrelevant to the ruling. The Jew could perforce only gain the
impression of a dissension between the various authorities. Instead of
this a few sentences of the ruling, dealing merely with the statute
of limitations, would have been sufficient if the judge denied the
punishable character of the offense.
The voluminous argument of the case would not even have been necessary
if the case had involved a German. The order of the Fuehrer in the
decree of 21 March 1942 on the simplification of the law that “court
rulings must be given in short and concise form and must be limited to
the absolutely essential” was already a wartime necessity. The German
fellow citizen does not expect verbose and learned statements from the
judge. The various ancillary and incidental considerations which guide
the judge in his decision do not interest him. He wants to be informed
by a few easily understandable words on what grounds he was found right
or wrong.
4. VIOLATION OF FOREIGN-EXCHANGE REGULATIONS BY A JEW
Verdict by a District Court of 26 May 1942
The defendant, a 36-year-old Jew, had in 1936 taken possession of his
deceased father’s textile firm. In 1938 he emigrated to Holland. In
1941 he was arrested in Amsterdam.
The defendant is guilty of a number of cases of illicit dealings. His
activities began when he, as the chief heir of his father, ostensibly
renounced his inheritance in favor of his sister who was a foreigner
with the intention of depriving the German foreign currency control
of the entire domestic and foreign fortune; simultaneously he made an
agreement with his sister that everything should remain as it was.
From their holdings in a firm in Holland which, as a subterfuge, were
transferred to a dummy, the Jew and his fiancee received about 100,000
Dutch guilders in 5 years, which were not offered to the Reich Bank.
He also disposed of the proceeds from various houses without a permit.
As for the Dutch firm, which was practically his own, he deceived the
Reich Bank for several years by pretending that he had nothing to do
with it, and that moreover it was in the red and unable to repay a
loan. In doing so he cheated the German authorities by producing forged
balance sheets. Finally, after the Aryanization of his firm, he tried
to persuade the new owners, former employees of his, through reduction
of his claim by 80,000 RM, to bring 40,000 RM across the border to
Holland without a permit. When his property was registered as “Jewish
property” the defendant concealed considerable assets. He defended
himself mainly by asserting that all these offenses were only the
continuation of his father’s violations of foreign currency regulations
and that he was under the influence of his sister.
“For the reason given by the defendant” the district court did not find
it a grave offense in the sense of article 42 of the Foreign Exchange
Regulation of 4 February 1935, nor of article 69 of the Foreign
Exchange Regulation of 12 December 1938. It sentenced the defendant to
a total of 2 years’ imprisonment, making allowance for the pretrial
detention and to a fine of 9000 RM.
The verdict, in the accompanying opinion, discusses first of all
facts that might be extenuating and mentions that the defendant had
not previously been convicted; he had acted under a certain coercion,
owing both to his father’s doings and to his sister’s obstinacy. One
offense by necessity led to the next. Through his confession he had
considerably facilitated clearing up the facts. On the other hand, the
long duration of his offenses, his fraudulent conduct toward the German
authorities, and the requests he made of his former employees were
cited as demanding a heavier punishment.
Opinion of the Reich Minister of Justice
The court applies the same criteria for imposing punishment as it would
if it were dealing with a German fellow citizen as defendant. This
cannot be sanctioned. The Jew is the enemy of the German people, who
has plotted, stirred up, and prolonged this war. In doing so, he has
brought unspeakable misery upon our people. Not only is he of different
but of inferior race. Justice, which must not measure different matters
by the same standard, demands that just this racial aspect must be
considered in the meting out of punishment. Here, where a profiteering
transaction typical of the defendant as Jew and to the disadvantage
of the German people had to be judged, the verdict in awarding the
punishment must take into consideration in the first place that the
defendant had deprived the German people for years of considerable
assets. He had, as innumerable members of his race have done before
him, ruthlessly and for deliberate selfish reasons violated the most
vital German interests by profiteering and fraud. He has abused
Germany’s hospitality, which had enabled him and his father to pile
up a huge fortune, and finally has not hesitated to instigate German
men who depended on him economically to serious violations of foreign
currency regulations, violations which endangered their very existence.
From these general points of view of the German people the question had
to be clarified whether this was a particularly serious case; it did
not suffice here to rely solely on the rather unconvincing statements
of the defendant himself, who could not have been under coercion for 4
years, but acted in his own interests and on his own initiative. This
typical Jewish parasitical attitude required the most severe judgment
and heaviest punishment. The reflections of the Jew and his family, in
this respect, are of very minor importance.
5. CONCEALMENT OF THE REQUIRED DESIGNATION AS JEW
Verdict of a Local Court of 24 April 1942
A Jewish proprietress of a boarding house had failed to apply for the
addition of the surname Sara in the official telephone directory 1940
and 1941. The local court sentenced her to a fine of 30 RM, or an
alternative of 10 days’ imprisonment. In the opinion it says: According
to the ruling of the local court, Jewesses are obliged to add the name
Sara to their names in the telephone directory. Therefore, the Jewess
is to be fined. The reason for the mild sentence was the fact that
sometimes individual judges had not ruled in conformity with the local
court.
Opinion of the Reich Minister of Justice
The verdict contains no grounds for the sentence. The reference to a
ruling of the district court does not free the judge from offering an
opinion of its own; on the contrary, it rather gives the impression
as if the judge had half-heartedly and reluctantly submitted to the
authority of the district court. The verdict should give the essence
of the grounds in a short and concise form. Here the essence is the
following: when she registers in the official telephone directory,
the defendant enters into general legal and commercial life as the
proprietress of a boarding house. The registration in the telephone
directory is in the nature of the subscriber’s visiting card for
telephonic business relations. Application for change of name is
therefore absolutely necessary in order to avoid mystification.
Moreover the grounds for awarding the punishment are not sufficiently
set forth. The verdict must make a clear decision--if the court finds
an action punishable, then it has to award the punishment appropriate
for this action regardless of whether other courts have, because
of incorrect deductions, acquitted the culprit. The idea that the
defendant did not have to expect a sentence with certainty because the
court rulings, owing to deviating verdicts, were not yet uniform does
not justify leniency. The court which is lenient because of one single
wrong judgment actually compromises with the defendant. But what she
did was a typically Jewish camouflage in her business dealings. It is
surprising that people are only gradually realizing this.
TRANSLATION OF DOCUMENT NG-315
PROSECUTION EXHIBIT 82
EXTRACTS FROM ISSUE NO. 3 OF THE JUDGES’ LETTERS, 1 DECEMBER 1942,
SUMMARIZING TWO CASES AND GIVING IN EACH CASE THE OPINION OF THE REICH
MINISTER OF JUSTICE
* * * * * * *
13. FORGERY OF A TESTIMONIAL BY A CLERK
Judgment of a local court of November 1942
A 19-year-old, so far unpunished clerk, who had worked in a firm of
machine tool makers wanted to be employed in a larger enterprise. For
this purpose she made herself out a testimonial of her present firm in
which she confirmed that she was efficient and able to cope with an
“independent leading position.” She forged the signature of her chief
by tracing it from the signature folder and copying it with ink. This
brazen forgery was immediately discovered when the testimonial papers
were submitted to the new firm, to which she had been referred by the
labor office.
The prosecution sees in the action of the part of B. severe forgery of
documents (pars. 267 and 268 of the Reich Criminal Code) on account of
the fact that the forgery was committed for monetary gain. The proposed
penalty was 2 months’ imprisonment and a fine of 30 reichsmarks.
The local court saw in this offense the given facts as contained
in the former paragraph 363 of the Reich Criminal Code which
provided imprisonment or a fine up to 150 reichsmarks for forgery of
testimonials for the purpose of improvement of one’s position. As
this ruling, however--this is what it says in the judgment--has been
rescinded through the law of 4 September 1941 and has been substituted
by the new paragraph 281 of the Reich Criminal Code (misuse of identity
papers)--which however does not apply in this case as the testimonial
is not a document of identification--the court has only to regard the
action of B. either as a grave forgery of a document according to
paragraphs 267 and 268 of the Reich Criminal Code or “again to apply
the provision of paragraph 363 of the Reich Criminal Code despite
its having been cancelled and to consider it still in existence in
accordance with the sound sentiments of the people and in accordance
with the will of the legislator insofar as the provisions of paragraph
281 of the Reich Criminal Code are not complied with.” The court
assumed the alleged second possibility. “Working on the principle
that nowadays the judge is no longer obliged to adhere slavishly to
the exact letter of law, the court found the accused guilty of having
forged a testimonial according to paragraph 363 of the Reich Criminal
Code.”
The sentence was 3 weeks’ arrest.
On passing sentence the judge remarked that the convicted person may be
placed on probation, which was later granted.
Opinion of the Reich Minister of Justice
It is correct that nowadays the judge should no longer have to adhere
strictly to the letter of law in a slavish way. This freedom in
applying the law should, however, not lead the judge to base judgment
on a law, which the legislator has cancelled. Moreover, the manner in
which paragraph 363 of the Reich Criminal Code is applied assumes a
law which is still in existence. Paragraph 363 of the Reich Criminal
Code was cancelled because particularly during the war it was no longer
possible to counter all forgeries of certificates generally with the
purpose of furthering one’s advancement merely by light contravention
punishment. The many opportunities of changing one’s job frequently
these days offer the temptation to facilitate this change of position
through such forgeries of testimonials. Such temptation must therefore
be countered by a threat of more severe penalty than was provided by
the former paragraph 363.
This generally more severe measure applied to such cases does not,
however, prevent from justly taking into consideration the particular
circumstances of individual cases within the framework of now existing
law codes, if the offense as in this instance is really a mild one. The
judge sensed correctly that B.’s offense corresponded to the degree of
guilt of the former paragraph 363. He could have provided for this also
under existing laws.
=B.= is a yet young and inexperienced girl of whom one may
assume that she was not entirely conscious of the extent of her deed.
This impression is confirmed by the primitive means of the forgery.
=B.= endeavored to leave her present firm in order again to work
in a larger enterprise. For this reason she wished to make her recent
activity appear to the best advantage. It cannot simply be assumed that
she thought of a better paid position in doing so, especially as it
is not so simple to secure such a position under wage scales in force
at present. In consequence, it could be rejected that she sought a
monetary gain. Thus only an ordinary document forgery could be dealt
with in accordance with paragraph 267 of the Reich Criminal Code.
As the penal code did not demand imprisonment, having regard to the
special circumstances of this case, the judge could have imposed a fine
according to paragraph 27b of the Reich Criminal Code.
The payment of this fine would have more forcibly brought home to the
still young =B.= the antisocial action of this deed rather than an
imprisonment, which the judge immediately postponed.
14. REFUSAL BY A SCHOOL CHILD TO GIVE THE GERMAN SALUTE
Decree by the Court of Guardians of 21 September 1940
An 11-year-old girl is conspicuous in school through continuously
refusing the German salute. She bases this on her religious convictions
and cites in explanation some passages from the Bible. In matters
concerning the Fuehrer she appears altogether disinterested.
The parents, who also have a 6-year-old daughter, approve of this
behavior of the child and obstinately decline to influence the child
to the contrary. They also refuse to give the German salute and point
to the passage in the Bible, “Do nothing with an upraised hand for it
displeases the Lord.” They adhere to this in spite of advice by the
court and the director of the school. The mother refuses altogether to
discuss it with the child. The father is willing to do so, but says
that the child should decide herself. The parents prove themselves to
be adversaries of the National Socialist State also in other respects.
They possess no swastika flag. They did not enter their child for the
Hitler Youth: they were expelled from the National Socialist Public
Welfare Association, because they will not support the collections,
despite an adequate income of the man. Nevertheless they deny being
adversaries of the movement. The juvenile board suggested that the
parents should be deprived of the right to bring up the two children on
account of their attitude.
The guardianship court refused to carry out this proposal and merely
made an order for supervision by a probation officer.
In the explanation, the court stated that it had not been proved that
the parents were adversaries of the National Socialist movement or that
they really had fought against it; they were merely “not sympathetic to
the movement and not willing to promote it.”
It was stated furthermore that “the parents are only in so far
responsible for their attitude toward the National Socialist movement
as they act contrary to the relevant penal laws.” The parents must
realize that the children must be brought up in the National Socialist
spirit and that the schools have instructions to educate them in that
spirit. If the parents are not willing to bring up their children in
that spirit themselves, or if they believe that their religious views
do not allow them to bring up their children in that spirit, the least
that must be demanded from them is not to oppose National Socialist
education at school. Owing to the fact that the child is well brought
up in other respects and that--judging from the court’s personal
impression--the parents are “of absolutely reliable character,” it may
be assumed that in future they will not give the school any trouble
with respect to education.
The court of appeal rescinded the decision of the guardianship court
and deprived the parents of the right to look after their children, as
they are not fit to bring them up.
Opinion of the Reich Minister of Justice
The judge at the guardianship court in his decision misunderstood the
principles of National Socialist education of youth.
Today, the education of German youth is based on the home, the school,
and the Hitler Youth (law regarding the Hitler youth of 1 December
1936). They have to cooperate and each of them has to carry out that
part of the educational task allotted to him by the community. The aim
of this joint work consists in educating the young people in body, in
mind, and morally in the National Socialist spirit for service to the
nation and for the community.
This aim can be reached only by joint cooperation of the home, the
school, and the Hitler Youth. Any opposition to and any deviation from
this education endanger the common aim. An essential part of this
education as well as a particular responsibility have been laid into
the hands of the parents. They are united with the child by ties of
blood. The child lives close to them and constantly looks to the habits
and the example of the parents. To educate means to guide. To guide
means to set an example by your way of life. The child models his way
of life on the example of his parents. What the child hears and sees
there, especially in early youth, it becomes accustomed to by degrees
and accepts it as a rule of life. Therefore, the educational aim of
the National Socialist State can only be achieved if the parents,
conscientiously and aware of their responsibility, give their child in
thought and deed a model example for its behavior in the community life
of our nation. To this education of German man or woman belongs also
the imparting of respect and awe for the symbols of the State and the
movement at an early stage. Here, too, the community expects active
cooperation on the part of the parents. A reserved neutral attitude is
as harmful as attacking the National Socialist idea. Thus, indifference
to the training of a patriotic member of the national community
means neglect of duty on the part of the parents and endangers the
educational aim for the child, even if this is not immediately apparent
in each case. For this reason, it is not enough that in the present
case the parents will not oppose the school in the future, they are
supposed to cooperate actively in their children’s education as a
whole. Thus, the responsibility of the parents does not start where its
violation becomes punishable. The child is often being endangered if
the parents consciously oppose the educational work of the community.
That was the case here. Who continues to refuse the German salute on
account of erroneous religious beliefs, who separates himself from the
great social work of construction of national socialism without any
reason, and who purposely withholds his children from the Hitler Youth
and never takes advice, of him it can no longer be said that he merely
“does not sympathize” with the movement and does not promote it. He
attacks it by his opposition and is its adversary. This is proved by
his convictions and by his inner attitude.
Thus, the judge of the guardianship court ought to have deprived them
of the right to look after their children simply by consideration of
the fact that parents, who openly profess the ideas of the “Jehovah’s
Witnesses,” are not fit to educate their children in the spirit of
national socialism.
TRANSLATION OF DOCUMENT NG-498
PROSECUTION EXHIBIT 93
LETTER FROM THIERACK TO PRESIDENTS OF VARIOUS DISTRICT COURTS OF
APPEAL, 17 NOVEMBER 1942, CONCERNING MANNER OF ACQUAINTING JUDGES AND
PROSECUTORS IN ALSACE, LORRAINE, AND LUXEMBOURG WITH THE JUDGES’ LETTERS
The Reich Minister of Justice
m Rb./34/42
Berlin W 8 17 November 1942
Wilhelmstrasse 65
Tel. 110044
Long distance: 116516
To the Presidents
of the District Courts of Appeal and the Attorneys General
in Karlsruhe, Cologne, and Zweibruecken
Subject: Judges’ Letters.
May I ask you to make it a habit to give the judges and prosecutors
in Alsace, Lorraine, and Luxembourg, too, an opportunity to acquaint
themselves with the Judges’ Letters. In cases where judges and
prosecutors are suspected of political unreliability, they are to be
excluded in a suitable manner from the list of subscribers to the
Judges’ Letters.
[Typed] [signed] DR. THIERACK
Certified:
[Signed] BEITZ
Clerk
[Seal]
Reich Ministry of Justice
PARTIAL TRANSLATION OF KLEMM DOCUMENT 33
KLEMM DEFENSE EXHIBIT 33
ANNOUNCEMENT OF MARTIN BORMANN, PARTY CHANCELLERY CHIEF, 2 DECEMBER
1942, REQUESTING GAULEITER TO INFORM THE PARTY CHANCELLERY OF THEIR
OPINIONS ON THE JUDGES’ LETTERS AND OF GOOD AND BAD VERDICTS[287]
p. 377 ff.
Judges’ Letters
R. 187/42
2 December 1942
Party Comrade Dr. Thierack, in his capacity as Reich Minister of
Justice, appeals to all German judges and public prosecutors, by way
of confidential Judges’ Letters, to bring German justice in line
particularly with the political exigencies of justice. I will see to
it that the Judges’ Letters are passed on to the Gauleiter, and I
request them to give their opinions, where necessary, on all proposals
and suggestions made by the Reich Minister of Justice in these Judges’
Letters.
Furthermore, I request the Gauleiter to inform the Party Chancellery of
good and bad verdicts, as far as they come to their knowledge, and as
far as they may be used in the Judges’ Letters. We will then discuss
the relevant parts with the Reich Minister of Justice.
* * * * * * *
TRANSLATION OF DOCUMENT NG-676
PROSECUTION EXHIBIT 178
LETTER FROM DEFENDANT KLEMM TO THE PRESIDENT OF THE STUTTGART COURT OF
APPEAL, 5 JULY 1944, STATING SENTENCES IN THAT AREA WERE TOO LENIENT,
PARTICULARLY IN CASES IN WHICH DEFENDANT CUHORST PRESIDED[288]
COPY
The Reich Ministry of Justice Berlin W 8, 5 July 1944
IV secret I 5045/44
To the
President of the District Court of Appeal
(Oberlandesgerichtspraesidenten)
and to the Attorney General
in Stuttgart
Subject: Practice [Rechtsprechung] of the District Court of Appeal
(Oberlandesgericht) Stuttgart
in cases of defeatism
For some time now the practice of the criminal senate of the District
Court of Appeal Stuttgart has given me cause for grave thoughts with
regard to matters of defeatism. In the majority of cases the sentences
are considerably too mild, they do not sufficiently bear in mind
the thought of the protection of the people which must govern the
punishment of defeatism, and are in an incompatible disproportion to
the sentences which are in similar cases passed by the People’s Court
and by other district courts of appeal. I would refer especially to the
following sentences which lately attracted my attention:
1. Criminal case against Friedr. Linder--OJs. 205/43--, sentence of
the 2d criminal senate of 7 January 1944 (President of the Senate Dr.
Kiefer, District Court of Appeal Counsellor (Oberlandesgerichtsrat)
Dr. Stuber, and Hegele, presiding officer of a chamber at the court
of appeal (Landgerichtsdirektor)). You made a report under date of
28 April 1944 on this case on the sentence. In view of the danger
and of the frequency of the statements made, I must maintain the
interpretation already expressed in my decree of 15 March 1944--IV
secret I 5045 b/44--that the defendant, a foreigner, deserved a severe
sentence of penal servitude. I have therefore directed the files to the
Chief Reich Prosecutor at the People’s Court to examine the question
whether the extraordinary objection should be applied against the
sentence.
2. Criminal case against Karl Unger--OJs. 203/43. Sentence of the 1st
penal senate of 22 February 1944 (President of the Senate Cuhorst,
Oberlandesgerichtsrat Dr. Stuber, and Oberlandesgerichtsrat Eckert).
The defendant is an old active Communist who apparently remained an
activist also after the assumption of power and who has not given
up his former opinions. His age and the illness, to which you refer
in your statement of 17 May 1944, did not prevent him again to make
malicious Communistic oral propaganda at an especially dangerous
time. I must, in these circumstances, consider the sentence passed of
2 years’ penal servitude, as being much too mild. I have therefore
directed this case also to the Reich Chief Prosecutor at the People’s
Court.
3. Criminal case against August Jooss for aiding and abetting the
enemy--OJs. 41/44--judgment of the 1st penal senate of 14 April 1944
(President of the Senate Cuhorst, Landgerichtsdirektor Dr. Bohn).
The foul defeatist statements made to the French civilian worker were
dangerous to such a degree that even the mentally deficient defendant
must have known about the consequences, and they show a frightening
measure of lack of national dignity. The sentence passed of 2 years’
penal servitude must in these circumstances be described as inadequate.
4. Criminal case against Johann Kornmayer--OJs. 31/44. Sentence of the
1st penal senate of 24 April 1944 (President of the Senate Cuhorst,
Landgerichtsdirektor Dr. Bohn, and Oberlandesgerichtsrat Dr. Stuber).
The reasons aggravating the punishment which were appropriately stated
in the sentence should have resulted in sentencing the defendant, an
old Marxist, to a considerably higher sentence than 3 years’ penal
servitude.
5. Criminal case against Paul Friebel--OJs. 32/44--sentence of the
1st penal senate of 4 April 1944 (President of the Senate Cuhorst,
Landgerichtsdirektor Hegele, and Oberlandesgerichtsrat Eckert).
The defendant spoke in an especially critical period, in favor of a
capitulation after the Italian example. I cannot accept the sentence of
1 year’s prison term as a sufficient punishment.
6. Criminal case against Clothilde Radspieler--OJs. 26/44--sentence
of the 2d senate of 9 March 1944 (President of the Senate Cuhorst,
Landgerichtsdirektor Payer).
The sentence passed of 1 year’s prison term is not in proportion with
the particularly dangerous remarks made, even taking into account the
mitigating reasons of the personality of the defendant.
7. Criminal case against Heinrich Brechtel--OJs. 221/43--sentence
passed by the 1st penal senate on 24 February 1944 (President
of the Senate Cuhorst, Oberlandesgerichtsrat Dr. Stuber, and
Oberlandesgerichtsrat Eckert).
There are considerable doubts about the negation of the inner facts of
the case, the defeatism, in view of the political past of the defendant
and the undisputable meaning of his remarks. In any case the sentence
of 1 year’s prison term cannot be regarded as sufficient in the case of
this old Marxist who saw a new light dawn after the fall of the Duce
and who openly expressed his hostility towards the State.
8. Criminal case against August Meier--OJs. 14/44--sentence of the
1st penal senate of 26 April 1944 (President of the Senate Cuhorst,
Landgerichtsdirektor Dr. Bohn, and Oberlandesgerichtsrat Dr. Stuber).
In this case also the especially dangerous remarks of the defendant
made to the wife of a soldier and to a soldier have been punished with
a sentence of 1 year’s prison which sentence is in no way satisfactory.
I intend, also in the cases 3 to 8, to submit the files to the Reich
Chief Prosecutor at the People’s Court for examination of the question
whether the extraordinary veto should be applied against the sentences
passed.
9. Criminal case against Maximilian Seebacher--OJs. 196/43--judgment of
the 2d penal senate of 10 February 1944 (President of the Senate Dr.
Kiefer, Oberlandesgerichtsrat Dr. Sick, and Oberlandesgerichtsrat Dr.
Stuber).
In the case of this defendant who, as a former Marxist, openly
expressed his hope for an overthrow by violence, a severe penal
servitude sentence would have been appropriate in place of the 2 years’
prison. In this case, however, for the reasons mentioned in your
statement of 27 and 28 April 1944, I shall put aside my objections and
refrain from further action.
10. Criminal case against Leo Graf--OJs. 22/44--judgment of the
1st senate of 22 February 1944 (President of the Senate Cuhorst,
Oberlandesgerichtsrat Dr. Stuber, and Oberlandesgerichtsrat Eckert).
This defendant who had repeatedly propagated the abdication of the
Fuehrer, would have deserved a considerably severer sentence than
the 10 months of prison term passed. For the reasons stated by you,
Attorney General, in your report of 8 May 1944, the sentence passed
may, however, be accepted as just adequate.
11. Criminal case against Alois Baum--OJs. 22/43 of the 1st penal
senate of 25 February 1944 (President of the Senate Cuhorst,
Oberlandesgerichtsrat Dr. Stuber, Oberlandesgerichtsrat Eckert).
This defendant, particularly as an old Party member, should have shown
more self-discipline. The annoyance about his treatment at the post
office was certainly not sufficient reason to make such foul defeatist
remarks. In view of the danger of these remarks, the sentence of 2
years’ prison term demanded by the representative of the prosecution
would at least have been appropriate. In view of the serious physical
ailment of the defendant I shall, however, refrain from any further
action.
12. Criminal case against Karl Peter--OJs. 28/44--sentence of the
second penal senate of 18 April 1944 (President of the Senate Dr.
Kiefer, Oberlandesgerichtsdirektor Dr. Sick, and Oberlandesgerichtsrat
Dr. Stuber).
The sentence of 2 years’ penal servitude passed on this defendant
appears to me precariously mild. Even if he be a mentally somewhat
deficient boaster he has, in an attitude of hostility toward the
State, continually incited others in an especially hateful manner. I
shall, however, refrain from submitting the files to the Reich Chief
Prosecutor.
At the meeting at Kochem I requested the President of the Senate to
explain, in what manner in the fifth war year cases of defeatism
should be tried. I believe that I may now expect that the District
Court of Appeal (Oberlandesgericht) Stuttgart will also pass
judgments accordingly. It is indispensable that you, President of the
Oberlandesgericht and you, Attorney General, will in future direct
your special attention to these criminal cases. I further request you,
Attorney General, to report to me until further notice when submitting
indictments for defeatism, what sentence you intend to demand in the
main trial so that I may point out possible objections with regard to
the measure of punishment.
As deputy
Certified: [Typed signature] KLEMM
Typed signature] GRUNDMANN
First Judicial Secretary
PARTIAL TRANSLATION OF DOCUMENT NG-627
PROSECUTION EXHIBIT 474
(Also Rothenberger Document 73
Rothenberger Defense Exhibit 7)
LETTER OF DEFENDANT KLEMM TO THE PRESIDENT OF THE HAMBURG DISTRICT
COURT OF APPEAL, 1 MARCH 1945, STATING THAT SENTENCES IN CASES OF
“UNDERMINING THE MILITARY EFFICIENCY” OF GERMANY HAVE BEEN TOO LENIENT
The Reich Minister of Justice
IV g-23-3118/45
Berlin W 8, 1 March 1945
Wilhelmstrasse 65
Telephone: 41 00 44
Long distance 11 65 16
(Stamp)
Hanseatic District Court of Appeal
Received: 9 March 1945
To the
President of the District Court
of Appeal
and the
Attorney General
in Hamburg
Subject: Too lenient sentences and sentences proposed by the
prosecution in cases of undermining the military
efficiency
I have observed for quite some time that the sentences passed and to
some extent also the sentences proposed by the prosecution at the
Hamburg District Court of Appeal in cases of undermining the military
efficiency (offenses under par. 5, art. 1, No. 1, Extraordinary War
Penal Ordinance) are dangerously lenient and below the Reich average.
With unusual frequency I have had to decide therefore to propose
extraordinary objection to sentences pronounced by the District Court
of Appeal. Recent sentences submitted to me which appear to be too
mild, cause me to draw your attention to the particularly lenient
sentences passed in the following cases:
1. O. Js. 184/44 (IV g-23-3118/45) against Bastian u.T.[289]
* * * * * * *
The judge in charge as well as the deputy of the attorney general
must proceed from the fact that public undermining the military
efficiency is punishable by death, according to article 5, paragraph
1 of the extraordinary war penal ordinance;[290] only in less serious
cases may the death penalty be waived. Therefore, the death penalty
has to be demanded not only if an especially serious case is under
consideration, but an offense of average gravity is sufficient to
render the provisions of article 5 of the ordinance applicable. Only
those cases can be considered less serious, where the gravity of the
offense is below average. The jurisdiction of the Reich Supreme Court
has developed the principle that a less serious case can be considered
as such only “if the facts of the case distinguish it fairly clearly
from the usual type of the punishable act in question, in favor of
the accused and if the over-all assessment of the circumstances,
especially the offender’s personality and the circumstances which might
have induced him to commit the offense, justify a deviation from the
regular jurisdiction” [handwritten: “usual punishment”]. This principle
also applies to cases of undermining the defensive power with the
reservation that on account of the particular danger in wartime far
less importance can be attributed to extenuating circumstances arising
from the personality of the criminal than in connection with other
crimes.
* * * * * * *
It is justified that the sentences should go by the effect of the
remarks. In some sentences remarks can be found like, “Serious harm
has not resulted from his action.” I doubt whether in such cases the
repercussions of the remarks have been followed up to the end. Their
effect on the audience can be determined through their interrogation;
however, it is difficult to determine whether this audience has passed
on the remarks, and what impression they made on third and fourth
persons. Reasons of this type are therefore only justified if extensive
investigations with definite results have been instituted.
In the sentences cited above there are among the reasons for the award
of punishment, statements about the personality of the offender, the
extenuating consequences of which are doubtful, for instance--
“Especially hard life.”
“Uprooted by the Russian revolution.”
“Lets himself go frequently because of his rather surly nature.”
“He has been a good comrade.”
“People with a disorder of the stomach, as we know from
experience, are inclined to be disgruntled.”
“He may have been annoyed about a certain phrase in the radio
lecture in question.”
“He had to suffer under the Jewish boycott movement during his
activities abroad.”
(That should rather be a reason for more severe punishment).
“The accused has been happily married to her husband, a veteran
of the movement. She maintains she also got along very well with
her husband as far as political matters were concerned.”
(That, too, in consideration of the grave utterances--OJs.
275/44--should not serve as an extenuating but as an aggravating
reason, as on account of living together with a veteran of the
movement, the woman should have been better educated than others in
National Socialist sentiment and thought.)
Please discuss the sentences as well as my opinion about them in the
proper way with the judges and public prosecutors in question, and see
to it that in all cases of undermining the military efficiency the
required severe punishment will be meted out in your area, too.
Acting
KLEMM
Certified:
[Signed] SCHREIBER
Clerk
[Stamp]
Reich Ministry of Justice
Chancellery of the Minister
EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[291]
_DIRECT EXAMINATION_
* * * * * * *
DR. SCHILF (counsel for defendant Klemm): Now we have finished
with the group of questions which concern the Party Chancellery. Now,
we are coming to the last phase, that is, your work as Under Secretary
of the Reich Ministry of Justice.[292] The Tribunal knows when you
became Under Secretary. Now, I am asking you, did you, yourself, have
any influence on your appointment to be Under Secretary in January 1944?
DEFENDANT KLEMM: No, I did not. During the last 3 months of
1943 I heard Thierack say to me that he was thinking it over whether
he should propose me to be his Under Secretary; then, I heard nothing
more. I only told the head of my department at the Party Chancellery
about that remark of Thierack’s.
* * * * * * *
Q. Mr. Klemm, we shall now discuss the subject of Judges’ Letters and
also the so-called Guidance Letters [Lenkungsbriefe]. You know that the
prosecution submitted a very extensive amount of evidence in regard to
this subject.
First I want to ask you about the Judges’ Letters. In what manner did
you participate in Judges’ Letters?
For the information of the Tribunal, I would like to cite the documents
that are concerned with this question. They are Exhibits 81 through
86, 90, and 94 to 96 inclusive. The NG numbers are given on the list
which I have submitted. Since the documents do not have to be discussed
individually, I believe it is sufficient to refer to exhibit number.
Please answer my question, Mr. Klemm.
A. The Judges’ Letters had already been issued for more than a year at
the time when I became Under Secretary. I cannot say anything about
the history of their origin. My participation was limited to having a
carbon copy of the finished Judges’ Letters submitted to me in draft
form. Thierack was given a copy at the same time. When looking it
over, I had to start from the point of view of not only the selection
of the cases which had to be treated and the subjects, but also of
the fundamental opinion of Thierack which had already been laid down
by him in advance. Technical changes would have been of little avail,
since Thierack looked at these drafts word for word and changed them
considerably. He regarded the Judges’ Letters as his own exclusive
province.
Moreover, of the letters which the prosecution has submitted here,
I myself participated only in the Judges’ Letters, Document NG-321,
Prosecution Exhibit 86.[293] All of the other letters date from the
time prior to which I was Under Secretary.
Q. The prosecution regards the Judges’ Letters, from the point of
view of their contents as well as their form, as an illegal pressure
exercised on judges and jurisdiction at that time. It asserts that it
was a serious intervention into the independence of judges. When you
were concerned with the Judges’ Letters, did you consider that effect?
Did you fear it, or did you support it, or did you see those matters
from a different point of view than the prosecution asserts here?
A. I wish to say the following about that. The thought never occurred
to me that the impression could be created at all which the prosecution
today raises as a charge. The sentences were incorporated into the
Judges’ Letters anonymously, that is to say, without stating the name
of the court, without stating the name of the condemned person or even
the name of the judge, or the time. Through that, it was intended to
be emphasized, especially by this means, that the question of general
interest and not the individual case was at stake, nor the praise
or the blame of a judge. By the manner in which these matters were
incorporated into the Judges’ Letters, in particular, the judge could
not feel himself being addressed directly, as usually occurs in legal
journals, in which these sentences are published in the legal press
with the full naming of the court, the file number and the date, and
then there usually follows the discussions of the opinion.
That the Judges’ Letters were confidential was not due to the fact
that they had to be afraid of showing themselves in public, or that
something that was incorrect was supposed to be covered up. The reason
was rather the following; the truthful presentation of the case, and
they were not hypothetical cases reported in the Judges’ Letters, but
those which had actually occurred. Thus, I am saying that the truthful
presentation of a case could not always keep the judicial decisions
anonymous, but it was intended to avoid--also to the advantage of the
person who was condemned--that he not all over again be exposed to
public criticism. Furthermore, it was also intended to prevent that
the public may learn of the wide and general criticism of one court by
another.
The National Socialist press, in its total character, was exclusively
hostile to the administration of justice, and the administration of
justice in particular had to suffer the most unbelievable attacks in
the Nazi press. The press would have jumped at these Judges’ Letters
in order to criticize the administration of justice, and would have
said, “The offices of the administration of justice themselves state
how wrong the attitude of the administration of justice is.” Above all,
however, it was intended to be avoided that the Judges’ Letters would
be interpreted in an entirely wrong direction--that is, through the
general public--in clemency pleas, that in a false lay comparison, by
referring to Judges’ Letters, a claim for a pardon would be raised.
In addition to that, the Judges’ Letters were intended to be the
basis for a friendly discussion between the highest authorities
of the administration of justice and the individual judge. Judges
and prosecutors were requested expressly--by the Judges’ Letters
themselves--to address requests in regard to the Judges’ Letters
directly to the Minister of Justice, and they were told that they were
not forced to go through channels. Every judge and prosecutor was
supposed to be a direct collaborator in these Judges’ Letters, and in
this direct way letters reached the Ministry of Justice.
* * * * * * *
Q. We can now interrupt the subject of the Judges’ Letters. May I
inform the Tribunal I intend to submit more evidence in my document
book in regard to this subject. Now we come to two so-called guidance
letters which bear your name, Document NG-676, Prosecution Exhibit
178 and Document NG-627, Prosecution Exhibit 474.[294] These letters
concern information issued by the Reich Minister of Justice which you
signed as Thierack’s deputy. Witness, the first went to the president
of the district court of appeals in Stuttgart. That is Exhibit 178.
The second one is to the president of the district court of appeals
in Hamburg. That is Exhibit 474. The contents of these documents show
that undermining of military efficiency was the subject. The sentences
by these courts of Stuttgart and Hamburg were criticized as being too
lenient by the minister--that is by you--because they were signed by
you as deputy. Please describe to the Tribunal how these two letters
came about.
A. Undermining of military efficiency was regarded as particularly
dangerous. The reason for it was the experiences which Germany had in
1918 when the German armies were far in enemy territory and through the
failure at home sufferable peace was prevented. Therefore, undermining
of military efficiency was already in 1939 introduced by law as a
subject for penalty. Care was to be taken that the will for tenacity
and the inner strength and hope and faith in a sufferable end of the
war would be maintained. In view of the successes which the German
Wehrmacht had the first years of this war and also during the middle
of the war, we hardly heard anything about reverses at that time with
the exception of Stalingrad. Thus, this crime never occurred. Only
toward the end of the war when the military situation got worse, the
prosecution had to send the indictment and the opinion to the Ministry
of Justice. These matters were handled in the Referat, the department
of Franke, in order to get a uniform picture of the jurisdiction. It
was also important to pay attention to the fact that the penalties were
uniform in the different districts of the Reich.
If it happened that in individual cases there were considerable
misgivings against the legal evaluation or the extent of the penalty,
the files were submitted to the Oberreichsanwalt, the Chief Reich
Prosecutor, for review as to whether a further means of legal recourse
was necessary. The misgivings, however, referred not only to sentences
that were too lenient, but also to sentences that were too severe.
Only in the latter case it was simpler. One could help by means of a
clemency plea. I here have to insert that neither the minister nor
I, myself, saw the opinions in cases in regard to the undermining of
military efficiency with the exception of those cases in which the
execution of a death sentence which had been issued was pronounced
or cases in which the Referent or department chief requested the
introduction of a legal recourse. A longer observation of the sentences
in the Referat, or department, could then show that a certain district
deviated from the generally recognized principles in its sentences,
especially from the principles recognized by the Reich Supreme Court.
PRESIDING JUDGE BRAND: Mr. Klemm, I think you fully explained
the reasons why you desired to have uniformity. Now this particular
exhibit indicates that in this particular instance you complained
of sentences being too mild. You have explained the reasons which
underlay your theory in the matter, and I think you have covered it
sufficiently. We must avoid such continuous repetition, Mr. Schilf.
DR. SCHILF: Mr. Klemm, therefore let us go concretely to the
contents of these two letters. How did it happen that these two letters
as such were written? I believe it will be necessary to bore the
Tribunal with that still because your name is under this letter.
PRESIDING JUDGE BRAND: Counsel, you are not boring the
Tribunal, nor is the witness. But we have the substance before us at
this moment of these letters and you need not ask the witness what the
substance of those letters were. We are here to try the case fairly and
we don’t want counsel to worry about boring us, but we do want counsel
to worry about undue explanations and too long explanations. Ask your
next question.
DR. SCHILF: Please state the practical cause how these letters
happened to be written. Due to the decision of the court, you do not
have to discuss the contents any more.
DEFENDANT KLEMM: The method for writing such letters had
already been established long before I entered the Ministry of Justice.
If cases accumulated in one district, the president of the district
court of appeal who was concerned received a letter so that in future
cases a general just sentencing, as it happened in the entire Reich,
would take place.
PRESIDING JUDGE BRAND: Why did you write this particular
letter? Just ask him why he wrote the particular letter shown in
Exhibit 178.
DEFENDANT KLEMM: These cases had been collected in the
Referat--in the Department--and then they were reported to the minister
and the minister determined whether such a guidance letter was supposed
to be written. In these two cases of Stuttgart and Hamburg, Franke
and Vollmer, the department chief, reported to the minister about the
jurisdiction exercised by these district courts of appeal and suggested
to compile the most extreme cases and to call them to the attention of
the presidents of the district courts of appeal. The minister approved
of this suggestion and in addition to that determined that I had to
sign these letters. That in these letters, the first person singular
“I” was always used, is the accepted official style. To that extent I
may refer to Exhibits 48, 94, 95, 96, and 99 in which simply Referenten
and associates also write in the first person singular, although the
letter bears the letterhead of the Reich Minister of Justice, and they
sign it personally.
DR. SCHILF: Mr. Klemm, in regard to the two guidance letters
to Hamburg and Stuttgart, were the judges who pronounced these
sentences and who had aroused the disfavor of Thierack supposed to be
called to account personally, or were measures supposed to be taken
against them?
DEFENDANT KLEMM: That was not supposed to be done in any
case. It would have been neither in accordance with the intentions of
the Ministry nor was it the meaning of such a guidance. The president
of the district court of appeals in Hamburg, who was requested at the
end of the guidance letter to speak to the judges in the appropriate
manner, that was what it says literally in the letter, could handle it
directly. As the official superior, he did not use this letter at all;
but within the framework of a community of work within the NS lawyers
league, that is, on a purely comradeship basis and not as a superior,
he spoke about these matters. Even less could the president of the
district court of appeals in Stuttgart issue measures to the individual
judges personally, or reproach them, because this letter was expressly
addressed to him. At the end it says that “you, Mr. president of the
district court of appeal should call direct and special attention to
these problems.” There is also a circular letter by the Ministry of
Justice which is known and which emphasizes again and again that the
independence of the judges should not be touched.
Q. But in the Stuttgart case the names of the participating judges were
listed. What was the purpose of that?
A. Of the twelve sentences which are mentioned in the Stuttgart letter,
nine had been pronounced when different members were sitting in the
court. For that very reason the names were listed to show that the
issue was not the failure of one individual judge, but that the general
jurisdiction of the district court of appeals of Stuttgart in matters
of undermining military efficiency was not in accordance with the
wishes of the Reich level and the needs of the time.
Q. In that connection the name of the codefendant Cuhorst is mentioned.
Did you know at the time the then President Cuhorst?
A. No, his name did not mean anything to me.
Q. Did you know that the then Senate President Cuhorst was also
president of the Special Court of Stuttgart; and, were the guidance
letters supposed to criticize the jurisdiction of the Special Court at
Stuttgart?
A. I did not know the jurisdiction of the Special Court of Stuttgart at
all. That the same person was presiding judge of the Special Court and
president of the senate of the district court of appeal was not known
to me at the time.
* * * * *
Q. One final question in that context. In the two so-called guidance
letters, especially in the one to Stuttgart, mention is made of the
fact that an extraordinary objection was supposed to be raised. Do you
know anything about whether that was done?
A. The sentences were not sent to the Oberreichsanwalt with a request
to raise the extraordinary objection, but with the instruction to
examine whether it would be worthwhile to raise an extraordinary
objection. In neither of those cases, neither in the guidance letter
to Hamburg or to Stuttgart, the problem was the changing of prison
sentences to death sentences, but the questions were merely prison
terms and whether they should be increased but still remain prison
sentences. Thus, the Oberreichsanwalt was not instructed to raise
an extraordinary objection. As far as I know, at the time, the
Oberreichsanwalt in the cases which were sent to him for examination
refused to register an extraordinary objection; and, as far as I know,
the minister was satisfied with those results of the examination.
Q. With that we have concluded the question of the Guidance Letters.
* * * * * * *
c. Lawyers’ Letter Written by Thierack
PARTIAL TRANSLATION OF DOCUMENT NG-260[295]
PROSECUTION EXHIBIT 87
EXTRACTS FROM LAWYERS’ LETTER NO. 1 SIGNED BY REICH
MINISTER OF JUSTICE THIERACK, 1 OCTOBER 1944
Lawyers’ Letters
Information of the Reich Minister of Justice
Confidential
_Number 1, dated 1 October 1944_
_LAWYERS OF GERMANY_
The German people, on the threshold of the sixth year of war, face
tremendous war tasks.
The Fuehrer has ordered that all resources of the armed forces and
armament industry be used to the utmost in order to master these
problems.
In pursuance of these measures dictated by total war, the
administration of law will also be curtailed and simplified to a great
extent. The further mobilization of German lawyers into the armed
forces and armament industry cannot be balanced only by curtailment
and simplification. Above all it necessitates the utmost concentration
of those elements which will have to carry on with our future
administration of justice. Every lawyer who in the future will still be
entrusted with his office must always be aware that the administration
of German justice has, now more than ever, the direct duty of securing
the frontiers and the waging of war, especially in view of the new
tasks, which will arise through the increasing totalization of the war.
Thus, the German lawyers have become the rear guard of the fighting
forces. The complete concentration of all resources which this involves
and which is expected especially from the senior members who take the
place of their younger colleagues, presupposes unified direction and
rigid execution of the work of all lawyers regardless whether they are
judges, public prosecutors or attorneys.
In the hour, when our people have entered upon the decisive battle
for its right to live, each lawyer must concentrate all his attention
solely on this battle for freedom. Everything that does not directly
serve this battle must now be put aside and everything that serves this
struggle must be done with the least possible expenditure of time and
work and in the simplest fashion. When the life of our people is at
stake, all other individual interests must be pushed aside. For some
time now there has no longer been any room for petty quarrels. Things
which yesterday had some importance are perhaps quite unimportant
today. Legal affairs not immediately connected with the war, must also
be dealt with in the shortest and most economical way. The only aim of
judges, public prosecutors, and lawyers is to preserve the life of our
people.
The lawyer who is very often the first to deal with troubles and
needs of his fellow countrymen is today entrusted with a particularly
responsible task. Affairs which are not absolutely important in waging
war, he must keep away from the law courts; however, legal cases of
importance in respect to the war are to be dealt with quickly but
not less conscientiously as the need of the hour demands. This task
cannot be accomplished with good intentions only. Above all he must
be thoroughly acquainted with the various plans and intentions of the
administration of justice in the various branches of law.
I know that the lawyers are waiting for such a reorganization of their
work and that such a regulation of the administration of justice will
be welcomed especially by the conscientious members. Therefore, I have
decided to introduce in these fateful hours, at a time of total war, a
new chapter in our administration of justice by publishing the Lawyers’
Letters which are to supplement the Judges’ Letters, published two
years ago.
These Lawyers’ Letters serve a double purpose. They are to inform
lawyers of the aims of the administration of justice by means of
publication of the verdicts of law courts in various branches of
law, which are of importance in conducting the war, and they are to
demonstrate the policy of the court in order to save unnecessary work
in regard to remonstrances, complaints, or legal remedies of all kinds,
for which there is no longer any room today. On the other hand they
are to regulate the general relations of lawyers toward each other in
their own profession, and also toward the judges and public prosecutors
in order to develop close collaboration among all administrators of
justice, and thus avoid future friction, complaints, or quarrels on
this subject as far as possible in order to mobilize all forces for
the actual legal work. The harder the times and the more stringent the
restrictions, the closer cooperation should be among all administrators
of justice in their common task.
Therefore, the Lawyers’ Letters, just as Judges’ Letters are to be a
close link between the administrators of justice and its personnel; and
thus, judges, public prosecutors, and lawyers are to be more closely
connected by a general reorganization of their work. These are not
orders, but signposts to help master the great tasks which lie ahead of
us.
I expect that no German lawyer fails to recognize the seriousness
of the hour and the magnitude of the task. I expect the complete
mobilization of all resources for tasks that war puts before us,
including our people’s struggle for freedom. I know that we shall win
this battle, if we work together and fight like one man.
With this in mind, I hope these Lawyers’ Letters are a means of
unifying and strengthening the fighting spirit of German lawyers.
The letters are not to remain mere words but should take shape in
actions!
[Signed] DR. THIERACK
Berlin, 1 October 1944
Conduct of Lawyers in Penal Cases
1. The defense counsel selected by a citizen of the Protectorate who
was sentenced to 12 years’ penal servitude and 10 years’ loss of civil
rights directed a letter to his client in the penitentiary, wherein
he held out the prospect of obtaining a mitigation of the sentence by
means of a request for clemency. Among other things the letter states:
“Today I have a personal request. Of your own accord, you
offered to recommend me to other well known Czech families, in
which some members met with a similar fate. You also informed
your wife of this offer at the last discussion we had together
with her. Therefore, I wrote to Prague, but received the answer
several times that likely clients needing defense counsel are
not known. Had I been acquainted with this fact, I would have
asked you during our many conferences to give me the addresses *
* *.
“During the proceedings I was able to prove by many documents,
that you are not at all hostile toward Germany but definitely
pro-German. I also believe that you will find the right attitude
toward the new Greater Germany after this difficult experience
and wish you the best for the future.
“With the kindest regards and Heil Hitler!
“yours,
“signature”
2. An attorney defended a woman, who together with her sister was
accused of keeping contact with prisoners of war which was forbidden.
Both women were accused of having received French prisoners of war in
their home, of having entertained them and exchanged caresses with them.
Among other things the defense counsel said in his final statement:
“We too, would be glad if kindness were shown to our German
prisoners of war in foreign countries, and we do not consider
those foreigners, who are kind to our German prisoners, liable
to punishment.”
3. Several Czech businessmen had to vindicate themselves before
a Special Court because of offenses against the penal order for
protecting the rationing of consumer goods (receiving butter they were
not entitled to). Their counsel said in his final plea,
“I feel impressed by these defendants who like true German men
and good family fathers shouldered a responsibility which was
really one for their wives.”
In order to show the pro-German attitude of a defendant, the defense
counsel read parts of a speech which one of the defendants made on some
occasion with regard to the aims of national socialism. He interrupted
the reading and cried, “I could almost believe I hear my Fuehrer speak.”
4. A factory owner had obtained a great deal of food for the canteen
of his factory from the black market and had used part of it for
himself. Therefore, he was sentenced to 2½ years of penal servitude for
violating regulations for war economy. In his plea the defense counsel
pointed to the fact that the food was of benefit to the workers, and
thus also armament and the armed forces. He finished his speech with
the words--“And now, then, condemn the defendant!”
In answer to the reproach of the presiding judge he declared that he
could formulate his plea in other words and demanded the acquittal of
the defendant.
5. Counsel took charge of the defense of a woman shopkeeper, who had
in several cases sold new bicycle tires and high tension batteries
to customers without purchase certificates in exchange for butter,
meat, sausage, and bacon. She was sentenced to 2 years’ imprisonment
and a fine of 1,000 reichsmarks because of continued offenses against
the penal order protecting the rationing of consumer goods and the
prohibition of bartering.
The defense counsel said in his final speech:
“The defendant is not to be blamed for getting additional food
in an illegal way. She is very corpulent and therefore surely
needs more than other people. One need only look at that body
to see that it needs a considerable amount of food. The food
is insufficient even for normal persons. Reich Minister of
Health Dr. Conti himself declared, that the food rations are not
sufficient.”
The lawyer has repeatedly given cause for measures of controlling
him because of his professional conduct. To date, 16 statements of
objection and disapproval have been made against him because of
insulting expressions to the court, to colleagues and parties, and
because of charging of inadmissible special fees, etc.
6. A mother and her daughter were indicted by a Special Court because
of offenses against paragraph 4 of the decree dealing with people
violating the national emergency orders. The daughter as the head clerk
of a firm had stolen a large number of food ration coupons and clothing
cards and had given them to her mother. The latter loosened the coupons
from the paper and kept them for future use. The food bought with those
tickets was often served at their home parties.
In his final speech the defense counsel expressed himself somewhat in
the following manner:
“The indicted daughter was the brain of the firm. The rooms
expanded, the house expanded. According to that quotation it
is but natural that the daughter has given parties and invited
guests. The mother is a busy modest housewife, and both are
ladies of good family. The fact that the mother loosened the
coupons so neatly and guarded them so carefully shows her to be
a good and orderly housewife, who proved her orderliness even in
this work.”
The defense counsel came to the conclusion, that both women had earned
the sympathy of the court and a reward for having confessed. Neither
defendant, he finally said, did wrong; there is no criminal guilt.
7. A basket maker who was defended by a counsel was sentenced to 3
weeks’ imprisonment and 14 days’ detention for resistance against the
police and for insulting and gross misconduct. In a drunken state he
had tried to cross a train track at a point where it was forbidden to
cross and was offensive toward railway officials who tried to prevent
him from doing so. In town he had molested pedestrians and resisted
arrest by the police. The court had sentenced him to imprisonment
because the defendant had previously been punished at 4 different times
for attacking superiors, and because prior to that he was sentenced to
imprisonment for absence without leave while in the army.
His defense counsel petitioned for clemency, asking that the prison
sentence be changed into a fine, and in so doing he pointed out that
the defendant, who makes deliveries with his own team would be badly
affected economically by the prison term; that he was released from the
army because of imbecility and that, therefore, his offense was not so
bad. He lodged a complaint against the refusal of the public prosecutor
and in his argument he said, among other things, the following:
“The case was taken much too tragically. Under prevailing
circumstances incidents which were punished with minor fines
in peacetime are now often looked upon as capital offenses.
This is due to the general nervousness by which the courts are
undoubtedly influenced. However, this is only temporary just as
the immense number of private charges. There is a lack of humor,
preventing us to see these things at their true value.”
8. A woman was charged with insulting another woman. She had called
out to the other woman who had shortly before lost one of her sons at
the front: “They shot one of your boys, we hope they shoot the others,
too.”
In his appeal the defense counsel said:
“Without intending to minimize the heinousness of her words,
as they are stated in the indictment, the question of whether
the expression is an insult must be examined. The expression
contains--so it goes on to state--a malediction, a curse, and is
certainly wounding to the feelings of a relative, particularly
of a mother, very gravely, but thereby it does not amount to
defamation. It is not an expression slighting a person, and
therefore it is not an insult.”
The defense counsel adhered to this contention in his final speech
although the president had pointed out to him that his standpoint about
the punishable nature of the expression was not tenable.
When the insulted mother was questioned as a witness during the
proceedings, she started to cry when the president asked her about
her son, and took out two pictures of her son in uniform and showed
them to the judge; whereupon the defense counsel declared that she was
obviously hysterical. After being sharply rebuked by the president, the
defense counsel answered in the same sharp way that he quite understood
the grief of the woman, but he doubted the credibility of her words.
The word “over-excited” was also used.
* * * * * * *
Opinion of the Reich Minister of Justice
The problematic nature of the position of the attorney at law which
rests upon the premise that the lawyer acts, on the one hand, on
principle as the representative of an individual citizen who appoints
and remunerates him, on the other hand, as an agent of administration
of justice and lawyer of the community which has assigned him to and
entrusts him with his function, has long been especially apparent in
criminal jurisdiction. The evolution of civil right from the purely
“private right” of the past--when the individual pursued his right
more or less for his own sake--to the civic right of our time in
which the citizen also administers his “private rights” as trustee
of the community has indeed also changed and reformed the task and
position of the lawyer. This modification did not, however, become so
obvious because in their widest sense the pursuit of justice and the
administration of justice in the domain of civil right still command,
at least outwardly and notwithstanding the sway of the community’s
influence, a form which does not make the dual position of the lawyer
with its inward conflict of duties so conspicuously prominent as has
always been the case in the domain of criminal jurisdiction. A penal
suit according to our present idea of penal law is no longer a matter
of two parties contending for their rights. Here, it is not a “private
citizen,” threatened in his freedom, who disputes against a “juridical
person” called the State opposed to him on a level of equality or
against the State attorney before an independent judge for the
rectification of a claim raised against him by the State, but a citizen
who vindicates his conduct before the community and its leadership
to which he owes loyalty and consideration, against the suspicion of
breach of loyalty or of contempt. Here it is not rights of freedom
which are fought for but social obligations which are assessed. Here it
is not mere compliance with the law that is examined; it is the honest
collaboration, the loyalty, and the worthiness or unworthiness of the
personality of the individual citizen which are weighed and determined
for the community. Here it is not so much a matter of the rights of the
community with regard to the individual as they have been given it by
the voice of the citizen, but rather that the individual has as many
rights and obligations as the community has conferred and imposed upon
him.
It is evident that such a viewpoint must involve far-reaching effects
on the position and task of the lawyer as the criminal defense counsel,
even if outwardly criminal procedure does not essentially differ in its
form from the former criminal trial. As defense counsel, the lawyer
has shifted closer to the State and community. He is incorporated
into the community of the administrators of justice and has lost his
former position as unilateral representative of the interests of the
defendant. Whoever is not ready to accept this clearly and absolutely
and is not prepared and able consistently to act accordingly ought not
to don the robe of a German lawyer nor take a place at the defense
counsel’s bench. Not only would he be at disagreement with himself,
not only would he fall from one conflict into another, but he would
also though often unconsciously do harm rather than service to the
administration of justice and last but not least also compromise the
reputation of those of his colleagues who think and act differently.
It is obvious that as defense counsel the lawyer has found it so much
more difficult than the judge and the public prosecutor to achieve this
mental change. However, this must never convey the delusion that merely
the thorough and successful striving to acquire this professional frame
of mind and a thorough devotion to this professional aspiration clears
the way to the fulfillment of the difficult as well as responsible and
gratifying office of defense counsel. What the issues involved in the
individual sphere by this altered role of the criminal defense counsel
are, will often be discussed in these Judges’ Letters in the future.
The fact remains, at all events, that the qualification of the lawyer
as criminal defense counsel, for which the bar has now been fighting
for over 10 years with varying success, will ultimately depend upon
whether and to what extent it succeeds in its attempt to attain this
new role not only ostensibly but also in a really moral sense and to
unite nonetheless, this enhanced position of obligations towards the
community with the obligations towards the individual citizens in such
a way that the community gets its right while the individual citizen
who entrusts himself to a lawyer is not abandoned or perhaps even
betrayed.
That this struggle of the bar is to this day by no means ended is daily
shown anew by incidents of professional routine, apart from the cases
mentioned.
I know full well that many lawyers shrink before this struggle for
their new adjustment which calls at the same time for an honest pledge,
because they deem it to be disloyal to their clients and therefore keep
aloof from penal cases.
My appeal is not meant for them. For whoever shuns moral obligations or
does not have the strength to see the fight through could never indeed
perform useful work as a criminal defense counsel.
However, the motives which have formerly induced and are still inducing
many others to shun criminal cases are very diverse. There is no
question here of those lawyers who from inclination or calling handle
civil cases only, and who in this and other spheres as lawyers in
economic cases, for instance, mostly in an exclusively advising and
managing capacity perform the most valuable legal work without this
ever becoming known to the courts or the public. Of these I do not wish
to make criminal counsel for it would be entirely amiss to take them
away from their important tasks and give them another one for which
they feel no moral calling. Aside from this there is, however, quite
a number of lawyers who decline to work on a criminal case because
they generally consider criminal cases of secondary order because
they are “less juristic.” One ought not to put questions of hierarchy
of this sort between criminal law and civil law at all. The opinion
that criminal jurisdiction and thereby also counsel for criminal
cases are of secondary importance--which is occasionally expressed
even today--can only be upheld by someone who interprets the concept
“juristic” by abstract constructions and logic reasoning thus trying to
maintain a concept “juristic” which has long been given up in civil law
also.
Whoever realizes that law is of vast significance to the life of the
community, conscious of the problem facing a lawyer in the serving of
his nation and its ways of life, recognizing the high ethical value
of such legal work, and measuring the importance of each individual
case for the community, will not underestimate the defense of the
life and freedom of a fellow citizen in a criminal case; but rather
consider it more vital and important than the contesting of property
rights or other legal questions which perhaps are of secondary concern
to the community. And whoever has come to realize that a serious and
responsible defense cannot be conducted nowadays, with the knowledge
of a few sections of the penal code or even with rhetoric swing and an
elegant appearance, but that in addition to this a profound knowledge
of modern criminal law and the entire legal sphere is essential not to
overlook criminal biology in its widest sense to which belongs above
all an extensive understanding of politics, and intuition will agree
that, nowadays, the defense counsel in his own “juridical value” does
not occupy a secondary rank any more than the judge or prosecutor. On
the contrary the best lawyers are barely good enough to be defense
counsels or judges particularly when taking into consideration the
vital importance of criminal law in wartime. Just as I fill the judges’
seats only with the best today--the same principle applies to civilian
law as far as the judges in the divorce courts are concerned who
similarly decide the fate of human beings--so only the best lawyers
should be admitted as defense counsel.
The measures required for the mobilization of all forces for total war
which must lead to further curtailment in the administration of justice
will automatically cause some lawyers, hitherto engaged on civil cases
only, now and again to occupy themselves with criminal cases, insofar
as personnel shortage necessitates this. For these lawyers, more than
for their colleagues (who up till now have been for the greater part,
or exclusively working on penal cases), it is necessary that they
approach their new work from the very beginning with a clear inner
attitude and professional conscience which will also give them the
necessary assurance in their appearance and work which is a primary
asset for successful legal work.
They need not fear to be called upon to do legal work of a secondary
nature. He who takes the job of a defense counsel in penal cases
of importance to the war, also contributes to the war effort. This
means today, however, that he is expected to make a considerable war
effort. In cases where the State permits the use of defense counsel, it
does not want to see court statisticians but sincere and responsible
fighters of the law who seek justice side by side with the judge and
the prosecutor. Penal cases have always demanded particularly exacting
work, due to the fact that the long sessions involve both physical and
mental strain, and require in every case a higher personal effort than
the most difficult civil cases, in which the main work can be completed
in the office and at the desk.
One of the main objections raised today by lawyers, and by no means by
the worst ones, concerning taking the job of defense counsel which can
only be approached with complete frankness can be found in results of
the guidance of practicing law. The defense counsel, they say, only
seldom has the opportunity to succeed, in getting through his deviating
opinion due to the close collaboration of judge and prosecutor, for
instance, in the introduction of evidence, or to find sufficient
attention in his final plea so that sometimes it may appear that the
verdict has already been pronounced prior to the main proceedings. The
lawyer’s success in any case is often rather minor, and the lawyer
very easily attains a secondary position compared to the judge and the
prosecutor.
This contains both truth and untruth.
He who is seeking “success” as defense counsel in penal cases must
first ascertain what is understood by it. It should go without saying
that a conscientious lawyer does not only see success where he
manages to reduce the sentence proposed by the prosecutor, to find
loopholes in the law for his client following the old tradition, or
where he otherwise succeeds in exploiting the case to his client’s
advantage. He who only has this conception of the entire affair, not
only misunderstands the tasks of a defense counsel, and not only lives
in penal conceptions of the past which have been overcome by the
introduction of paragraph 2 of the Reich Penal Code and by the law
itself, but he also lowers the value of his own work. The success of a
defense must already be apparent in the consciousness of having done
everything possible as a coresponsible lawyer in order to lead justice
to a successful conclusion.
More than that the defendant could not demand and if he did--which
is humanly understandable since he cannot be arbiter on his own
behalf--then the defense counsel should not support him.
As far as the secondary position compared to that of the judge and the
prosecutor is concerned which might be feared by quite a few, I can
only answer: Everyone achieves a rank in his life and profession which
he works and fights for through his accomplishments and personality.
The duty of a defense counsel is not limited to his activity in the
main proceedings as many believe. His chief task begins much earlier
while cooperating at the elucidation of the state of the case, the
production of evidence to be introduced in court, and numerous
interviews prior to the trial.
* * * * * * *
The defense counsel as a result of his dual position as a defense
counsel of one person on the one hand and as an administrator of
justice for a community on the other hand will repeatedly face the
danger of the fact that the accused whom he is defending depends upon
him, making him forget that he is not the mouthpiece of his client but
an independent administrator of justice. If, for instance, a defense
counsel submits applications only upon request of the defendant, or
if he proposes the hearing of character witnesses though he himself
does not doubt the credibility of the hitherto heard witnesses, if he
adds more lengthy letters of the defendant to his brief as appendices
only to comply with the defendant’s wish, this indicates either a lack
of the required self-criticism or of the necessary energy toward his
client in carrying out his office as defense counsel.
* * * * * * *
The cases mentioned in this first Lawyers’ Letters, some of which have
led to reprimands and disciplinary measures are only a small part of
the vast material at my disposal. They really speak for themselves. At
the same time they show how much work remains to be done, if we are
to solve the tasks which the increased totalizing of war puts to us.
If we succeeded in releasing only part of the manpower--represented
by lawyers at present engaged in examinations and court of honor
proceedings--for really important and war essential legal work, a
considerable contribution would have been made. To attain this is not
only the goal of the judicial administration. Lawyers themselves should
collaborate in this with self-discipline, which I particularly expect
from now on.
If there are any difficulties, doubts, wishes, and troubles, every
lawyer may report these to me either himself or through his chamber so
that these questions may be discussed and cleared as far as possible in
these Lawyers’ Letters.
As for the cases reported to me this is briefly to be said:
(1) The letter of the defense counsel to a traitor in a penitentiary
speaks for itself. Not only is the unconcealed wooing of clients
repulsive, but especially the inconceivable lack of dignity and the
servility with which this German lawyer addresses a declared marked
enemy of the state, calling him “Dear Sir,” wishing him “all the best
for the future,” and after mentioning “his esteemed wife” closes with
“best regards and Heil Hitler, yours.”
Surely it cannot be expressed more clearly that one is unqualified for
the legal profession.
(2) The lawyer, whose plea was that “we would be glad if our German
prisoners of war would be shown a kindness” shows a total lack of
understanding of the seriousness and significance of this offense. It
is not the business of German women “to show kindness” to prisoners
of war, but they should behave as German women. Decency and honor
should bar the least contact with prisoners of war who are still our
enemies. What should women who have resisted the temptation to which
the defendant fell say if they hear a lawyer express such views?
(3) As for the defense counsel, who was “impressed” by the attitude of
the Czech industrialists who had bought butter without ration tickets
because the defendants “like real German men they took the blame for
their wives who were really responsible,” all that can be said is
that he knows very little about the tasks of a German lawyer. Here
again the lack of tact and understanding was not that he tried to
minimize the offense. He obviously knows nothing about the situation
of ethnic Germans in the Protectorate and about the interests of the
German people. To mention a speech by one of the Czech defendants in
one breath with a speech by the Fuehrer was--no matter how it was
meant--outrageous. Such a thing cannot be excused as an “awkward
mistake.” Lack of instinct is a feature of one’s character.
(4) The lawyer who pleaded for a factory owner, accused of an offense
against wartime economy, was it is true right in pointing out that
the defendant also thought of his workers when he acquired food
illegally. As far as this was a fact he even had to point it out. But
in disregarding the fact, that the defendant as the sentence of 2½
years penal servitude shows bought considerably for his own benefit,
he has violated his duty as defense counsel. Furthermore, in trying to
influence and mislead the court by saying “and now condemn the accused”
thus demanding the acquittal of the defendant, he went far beyond the
limits of a possible and legitimate defense. This suggestion had to
give everybody and not least the defendant, too--to whom he should have
explained his offense--the impression that the sentence was unfair and
as such contrary to the interest of the people. This type of plea does
not serve, but damage the administration of law.
(5) The next two cases also show that some defense counsel have not
yet, in the fifth year of war, recognized the importance of criminal
proceedings to war economy. To excuse black market activities with
the obesity of the accused can scarcely have been meant seriously and
can, of course, not meet with success--except for the bad impression
counsel makes. This again cannot excuse the temporary lapse, because
counsel has, by saying incorrectly and tactlessly later on that the
Reich health leader himself describes the food rations as insufficient,
revealed that he himself disagrees with our laws and government. The
16 objections and reprimands brought up against him so far confirm the
picture, which he has given of himself in this case.
(6) To defend parties and dinners given by the two “better class women”
with the help of stolen ration cards by saying that business, so to
speak, required such parties is just as stupid as it is to expect the
court to find the defendants not guilty of an offense. Such statements
not only show considerable lack of understanding of the importance of
criminal cases in the field of the law of war economy, but they should
never be made at all in a court of law.
(7) Humor should certainly not be suppressed especially in difficult
times, but only where it is appropriate. But it is inconceivable for a
defense counsel to reproach a court or the prosecution for their lack
of humor, because a defendant who indulges in a drunken brawl annoys
people and resists the police received a well earned punishment. The
defense counsel would have done better to consider that in the fifth
year of war one should not burden judges and prosecutors with uncalled
for petitions for mercy and complaints; about the latter there is still
much to be said. He would have done better to make it clear to his
client who had already repeatedly made himself unfavorably conspicuous,
how to conduct himself in these times instead of backing him up by his
false statements.
(8) If in this case the defense counsel raises legal doubts against
the assumption of an insult to the mother, he can thus only intend to
obtain an acquittal. Therefore as a representative of the law he takes
the view that in such cases according to our law there is no protection
of the honor of soldiers killed in action and their relatives. This
attitude and his subsequent conduct at the trial, in which he called
the gravely afflicted mother of the dead soldier “hysterical and highly
strung,” when facing the judge she naturally re-experienced her pain
and sorrow, revealed, even had the mother been very excited, a rare
absence of any feeling for the community and human compassion. He who
tries to cover such a criminal deed, particularly as a representative
of the law, puts himself ideologically on a level with the defendant.
* * * * * * *
d. The Withholding of Criminal Proceedings against Persons
Participating in “Lynch Justice” against allied Fliers
TRANSLATION OF KLEMM DOCUMENT 68a
KLEMM DEFENSE EXHIBIT 68a
DECREE OF HIMMLER TO ALL HIGHER SS AND POLICE LEADERS, 10 AUGUST 1943,
CONCERNING “CONTROVERSIES BETWEEN GERMAN CITIZENS AND PARACHUTED
ENGLISH AND AMERICAN TERROR FLIERS”
Personal Staff
Diary Nr. 48/16/42 g
Bra/Bn
To: All Higher SS and Police Leaders
[Stamp]
Personal Staff Reich Leader SS
Archive SECRET
File Nr. Secret/121/21
By order of the Reich Leader SS I am sending you enclosed a decree
with the request to bring it to the attention of all commanders of
the police and Security Police who are to inform orally all their
subordinate agencies of its contents.
In addition, the Reich Leader SS requests that the competent Gauleiter
be orally informed of this decree.
[Signed] BRANDT
SS Obersturmbannfuehrer
1 Enclosure
Der Reich Leader SS
Rf/Bn
48/16/42 g
[Stamp]
Personal Staff Reich Leader SS
Archive
File Nr. Secret/121/21
Field Command Post, 10 August 1943
Secret
It is not the task of the police to interfere in controversies between
German citizens and parachuted English and American terror fliers.
[Signed] H. HIMMLER
PARTIAL TRANSLATION OF DOCUMENT NG-149
PROSECUTION EXHIBIT 110
VARIOUS MEMORANDUMS FROM THE FILES OF THE HIGH COMMAND OF THE ARMED
FORCES, 6 JUNE–5 JULY 1944, CONCERNING THE TREATMENT OF “TERROR FLIERS”
1. Memorandum of General Warlimont, 6 June 1944[296]
Matter for Chiefs!--(only through officers)
Deputy Chief of the Operations Staff of the Armed Forces,
No. 771793/44 Top Secret Chief matter
Field Headquarters, 6 June 1944
Top Secret
3 copies--1st copy
Subject: Treatment of enemy terrorist airmen
_Notes on a report_
1. In the afternoon of 6 June, SS Obergruppenfuehrer Kaltenbrunner[297]
informed the Deputy Chief of the Operations Staff of the Armed Forces,
in Klessheim, that this question had been discussed a short time
previously between the Reich Marshal, the Reich Minister for Foreign
Affairs, and the Reich Leader SS. In the course of this conference,
and in opposition to the original suggestion of the Reich Minister
for Foreign Affairs, who wanted to include any kind of terror attack
against our own civilian population--thus bomb attacks on cities
too--an agreement was reached, according to which _only machine-gun
attacks directly_ aimed at the civilian population and its property,
should be considered as constituting criminal acts in this sense.
_Lynch_ justice should be considered as being _the rule_.
Sentencing by court martial and transfer to the police, on the
contrary, had not been discussed.
2. The Deputy Chief of Armed Forces Operations Staff set forth--
_a._ In pursuance of the broad outlines sketched by Reich Minister
Dr. Goebbels and various press reports which point in the same
direction the main task now consists in _making public_ a case of
this kind which has been unexceptionally confirmed stating the name
and the unit of the concerned airman, the place where it happened, and
other details in order to establish accordingly the seriousness of
the German intentions in the face of incredulous enemy propaganda,
and above all in order to achieve the desired deterrent from further
assassinations of our own civilian population. Accordingly, the
question is to be put whether such a case is in the files of the SD, or
whether the necessary facts are at hand in order to fabricate such a
case with the necessary details.
Obergruppenfuehrer Kaltenbrunner answered both questions _in the
negative_.
_b._ Deputy Chief Operations Staff of Armed Forces points out that
besides lynch justice the procedure too of a segregation of any such
enemy airmen who are suspected of having committed criminal acts of
this nature, their admission into the airmen reception camp Oberursel,
and upon confirmation of suspicion their transfer to the SD for special
treatment should be prepared.
In this connection, the Operations Staff of the Armed Forces is in
contact with the High Command of the Air Force, in order to establish
the directives with which, in such cases, the commander of Oberursel
camp would have to comply.
SS Obergruppenfuehrer Kaltenbrunner declares that he agrees absolutely
with his suggestion and with the _taking over of the segregated
individuals by the SD_.
_c._ Concerning the _publicity_ question, an agreement is
reached that until further notice an agreement between High Command of
the Armed Forces/Operations Staff of the Armed Forces, High Command of
the Air Force, and the Reich Leader SS should be arrived at in any case
in order to _establish_ the _form_ of publication.
The cooperation of the Foreign Office is to be secured through the
Operations Staff of the Armed Forces.
3. In the course of a conference with Colonel von Brauchitsch (of the
High Command of the Air Force) held on 6 June, it was established that
the following acts are to be considered as terrorist acts justifying
lynching:
_a._ Low level machine-gun attacks on civilian population, on
single individuals as well as on gatherings;
_b._ Attacks on own (German) airplane crews dropping by parachute;
_c._ Machine-gun attacks on passenger trains of the regular public
service;
_d._ Machine-gun attacks on hospitals, field hospitals, and
hospital trains clearly marked with the Red Cross sign.
The facts listed under 3 are to be communicated to the commander of the
airmen reception camp at Oberursel. If any such facts are proved by
interrogation, the prisoners are to be delivered to the SD.
Colonel von Brauchitsch said that another report about these matters to
the Reich Marshal was not necessary.
[Signed] Warlimont
Distribution:
Chief High Command Armed Forces copy 1
through Chief Operations Staff Armed Forces
Deputy Chief Operations Staff Armed Forces
Ktb. copy 2
Qu. (draft) copy 3
* * * * * * *
2. Letter from Field Marshal Keitel to the German Foreign Office,
14 June 1944
Fuehrer Headquarters, 14 June 1944
Top Secret
The Chief of the High Command of the Armed Forces
Operations Staff Armed Forces/Qu. (Adm. 1)
Nr. 771793/44 top secret Chief matter
3 copies--2d copy
Chief matter: only through officer.
To the Foreign Office,
c/o Ambassador Ritter[298]
Salzburg
In connection with home and foreign press reports concerning the
treatment of terrorist airmen who are falling into the hands of the
population an unambiguous fixation is needed of the concept of what
facts constitute a criminal act in this sense. At the same time the
procedure should be established as to the _publication_ of such
cases which have led either to a lynching by the population or--in case
of apprehension of terrorist airmen by armed forces or police--to a
special treatment by the SD.
In agreement with the Commander in Chief of the Air Force [Goering], I
intend to write the communication a draft of which is attached which
should be an instruction to the commander of the airmen reception
camp at Oberursel. It concerns such cases in which, according to an
investigation made in this camp, it is found suitable to segregate the
culprit, owing to confirmation of suspicion, and to transfer him to the
SD.
Previous to any publicity in the press, by radio, etc., it must
be insured that name, unit, place of crime, and other detailed
circumstances present a perfectly clear picture which publication may
effect the intended result of deterring from further murders. In this
connection, the formulating of publication should make allowance for
the circumstance that enemy protests of all kinds are to be expected.
Therefore, and in agreement with the chief of the Security Police and
the SD and with the director of censorship, it is intended that prior
to any publication and until further notice an agreement is to be
reached between the High Command of the Air Force, the Operations Staff
of the Armed Forces, the Foreign Office, and the SD, in order to settle
facts, date and form of publication.
You are requested to confirm, if possible not later than 18th instant,
that you agree with the above principles as well as with the procedure
intended for publications.
1 enclosure
3. Letter from Goering’s Office to Keitel, 19 June 1944
The Reich Marshal of Greater Germany
Adjutant’s Office
Adj. Off. No. 7605/44 secret
Command matter
Berlin WC, the
Leipziger Str. No. 9
Tel. 420044
Headquarters, June 19th, 1944
Subject: Treatment of enemy terrorist airmen
Reference: Your letter No. 771793/44 top secret chief matter II,
Ang. Operations Staff Armed Forces/Qu. (Admin. 1)
of June 15th, 1944
2 copies--copy No. 1
To the Chief of the High Command of the Armed Forces,
Field Marshal Keitel
The Reich Marshal [Goering] has noted with reference to the
above-mentioned letter:
“The reactions on the side of the population are not in our
hands anyhow. However, it should be prevented as far as possible
that the population takes steps against other enemy airmen to
which above facts do not apply. In my opinion, above-mentioned
facts always can be _dealt with by a tribunal_, as in this
case _acts of murder_ are concerned, which the enemy has
prohibited his airmen from committing.”
Acting:
[Signed] TESKE
Lieutenant Colonel, GSC
4. Draft Letter from the German Foreign Office to Field Marshal Keitel,
20 June 1944
Ambassador Ritter No. 444
Carbon Copy
Secret Reich Matter
Salzburg, 20 June 1944
[Handwritten] _Draft_
To the Chief of the High Command of the Armed Forces
Your letter of 15 June 1944
No. Operations Staff Armed Forces/Qu. No. 772991/44.....II.ed.
Subject: Treatment of enemy terrorist airmen.
The Foreign Office agrees to the intended measures as a whole,
notwithstanding the clearly palpable objections from the viewpoint of
foreign policy and international law.
Examination in detail should differentiate between cases of lynching
and cases of special treatment by the SD.
I. In cases of lynching, a sharply defined establishment of criminal
facts according to paragraphs 2–4 of the letter of June is not very
important. First, a German authority is not directly responsible; death
has already taken place before some German authority deals with the
matter. Further, the circumstances will be such, as a rule, that it
will not be difficult to represent the case in a suitable manner on
publication. Accordingly, in cases of lynching, the principal aim will
be to _deal suitably with the individual case on publication_.
[Handwritten marginal note] only this was the aim of our letter.
II. The procedure suggested for _special treatment_ by the SD[299]
with subsequent publication, would only be defensible if Germany
would openly repudiate at the same time, and in this connection, the
obligations under international law which are in force now and which
Germany still recognizes. When an enemy airman has been apprehended by
the armed forces or by the police and been transferred to the airmen
reception camp Oberursel, his legal status has become _eo ipso_
that of a prisoner of war. Concerning the criminal prosecution and
sentencing of prisoners of war and the carrying-out of death sentences
against prisoners of war, definite rules have been established by the
Prisoners-of-War Convention of 27 July 1929, such as, e.g., article 66,
which provides that a death sentence may be carried out no sooner than
3 months after notification of the death sentence to the protecting
power; in article 63: sentencing of a prisoner of war only by the same
courts and according to the same procedure as applicable to members
of the German Armed Forces. These regulations are so precisely worded
that it would be hopeless to try to _veil any infraction thereof by
a clever form of publication of individual cases_. On the other
hand, the Foreign Office cannot recommend a formal renunciation of the
prisoner of war convention on this occasion.
[Handwritten marginal note] this is already being prevented by
the intended segregation.
[Handwritten marginal note] No--owing to segregation and the
special treatment immediately following.
A way of escape would be the following, viz, that suspect enemy
airmen should not be allowed at all to have the legal status of
prisoner of war; that means that one should tell them immediately
on capture, that they were not to be considered as prisoners of war
_but as criminals_, that they be handed over, not to authorities
competent for prisoners of war such as a prisoner of war camp,
but to the authorities competent for the prosecution of criminal
acts, and that they then be sentenced in special summary judicial
proceedings. If, during the interrogation under these proceedings,
the circumstances prove that this special procedure is not applicable
to the case on hand, then in individual cases the concerned airmen
could _afterwards_ be given the legal status of prisoners of war,
by transfer to the airmen reception camp at Oberursel. Of course,
even this opening would not prevent Germany from being blamed for
infractions against valid agreements, and perhaps not even the taking
of reprisal measures against German prisoners of war. Anyway, such an
opening would enable us to keep to a clear viewpoint and free us of the
necessity of either openly repudiating valid agreements or of making
use, on publication of every single case, of excuses which nobody will
believe. Of the facts mentioned under 2–4 of the letter of 13 June, the
facts mentioned under 1 and 4 are legally unobjectionable. The facts
under 2 and 3 are legally not unobjectionable. However, the Foreign
Office is prepared to disregard that.
[Handwritten marginal note] yes, this too is possible.
It would perhaps be advisable to summarize the facts under 1, 3, and 4
by saying that any attack of an airman on civilian population committed
with machine guns is to be treated as a criminal act. The individual
acts listed under 1, 3, and 4 would then merely form particularly
remarkable instances. Nor does the Foreign Office see any reason why
such attacks should not be punished, when committed upon civilian
population in ordinary dwellings, in motor cars, in river vessels, etc.
The Foreign Office proceeds from the fact that German airmen are, as a
general rule, forbidden, when attacking England, to make use of machine
guns against the civilian population. As far as the Foreign Office is
informed, such a prohibition was issued some time ago by the Commander
in Chief of the Air Force. A general publication could point out the
fact that such a prohibition is in force.
III. The above considerations warrant the general conclusion that the
cases of lynching ought to be stressed in the course of this action.
If the action is carried out to such an extent that its purpose, viz,
the deterring of enemy airmen, is actually achieved which the Foreign
Office approves of, then the machine gun attacks of enemy airmen upon
the civilian population ought to be given publicity in quite another
manner than has been the practice up to now, if not in home propaganda,
then at any rate in foreign propaganda. The competent local German
authorities, probably the police stations, should be instructed to
send at once, in every case of such an attack, a short and true report
mentioning details concerning place, time, number of killed and
wounded, to a central office in Berlin. This central office ought then
to transmit these reports at once to the Foreign Office for use.
As such machine gun attacks on the civilian population also have taken
place in other countries, e.g., in France, Belgium, Croatia, Rumania,
the competent German offices or the governments of those countries
ought to be asked to collect in the same way news about attacks on the
civilian population and to make propagandistic use of these in foreign
countries in cooperation with the German authorities.
IV. In the letter of 15 June the intention has been mentioned that any
publication should, until further notice, be proceeded by an agreement,
i.e., with the Foreign Office. The Foreign Office attaches special
importance to this and insists also that such an agreement take place
not only until further notice, but during the entire duration of the
action.
BY ORDER
[typed and crossed out] Signed: RITTER
5. Notes of General Warlimont, 30 June 1944
Operations Staff of Armed Forces
No. 006988/44 secret command matter
30 June 1944
Top Secret
3 copies--copy No. 1
Subject: Treatment of enemy terrorist airmen
[Pencil note] We must, at least, act. What more do we need?
_Notes on a Report_
I. Enclosed _draft_ of a reply letter of the Reich Minister of
Foreign Affairs to the Chief of the High Command of the Armed Forces,
which has been transmitted to the Operations Staff of the Armed Forces
through Ambassador Ritter, is submitted.
On 29 of this month Ambassador Ritter states by phone, that the Reich
Minister for Foreign Affairs has approved this draft but has instructed
Minister Sonnleitner to report to _the Fuehrer_ the point of view
of the Foreign Office prior to the sending of the letter to the Chief
of the High Command of the Armed Forces. Only if the Fuehrer approves
of the principles established by the Foreign Office, is the letter to
be sent to the Chief of the High Command of the Armed Forces.
II. The Reich Marshal agrees with the formulation transmitted from the
High Command of the Armed Forces concerning the concept of terrorist
airmen and with the proposed procedure.
[Signed] WARLIMONT
Distribution:
Chief High Command Armed Forces
through Deputy Chief Operations Staff Armed Forces, copy
No. 1
Ktb. (files), copy No. 2
Qu. (adm. 1) copy No. 3
6. Notes of General Warlimont’s Office, 5 July 1944
Operations Staff Armed Forces
Qu. (Adm. 1)
5 July 1944
Top Secret
_Notes_
Concerning “Terrorist Airmen”
In the noon situation conference of 4 July, the Fuehrer decreed as
follows:
According to press reports, the Anglo-Americans intend for the future,
as a reprisal action against “V 1,” to attack from the air also small
places without any economic or military importance. If this information
is true, the Fuehrer desires publication through radio and press that
any enemy airman who participates in such an attack and is shot down
during it cannot claim to be treated as a prisoner of war, but will
be killed as soon as he falls into German hands. This measure is
to apply to all attacks on smaller places, which are not military,
communications, nor armament objectives, etc., and which accordingly
have no significance from the point of view of the war.
For the time being, no measures are to be taken, but only to be
discussed between the armed forces and the Foreign Office.
TRANSLATION OF DOCUMENT NG-364
PROSECUTION EXHIBIT 108
SECRET CIRCULAR FROM MARTIN BORMANN TO NAZI PARTY LEADERS,
30 MAY 1944, CONCERNING “PEOPLE’S JUSTICE
AGAINST ANGLO-AMERICAN MURDERERS”
German National Socialist Workers’ Party
Party Chancellery
The Chief of the Party Chancellery
Fuehrer’s Headquarters, 30 May 1944
[Stamp] 9 June 1944
[Stamp] _Secret_
[Initial] TH [Thierack]
Circular 125/44 Secret
(not for publication)
Subject: People’s justice against Anglo-American murderers
During the past weeks English and North American fliers have repeatedly
been strafing children playing on playgrounds, women and children
working in the fields, ploughing peasants, vehicles on the highway,
trains, etc., from a low height, thus murdering in the most despicable
manner defenseless civilians--especially women and children.
It has happened several times that members of the crew of such aircraft
who had bailed out or made a forced landing, were lynched on the spot
by the highly indignant population immediately after their arrest.
No police or criminal proceedings have been taken against citizens who
have taken part herein.
[typed] [signed] M. BORMANN
Distribution: Reichsleiter
Gauleiter
Verbaendefuehrer
Kreisleiter[300]
Certified [Signed] FRIEDRICHS
30 May 1944
To all Gauleiter and Kreisleiter!
[Initial] TH [Thierack]
Subject: Circular 125/44 Secret
The Chief of the Party Chancellery requests that the Kreisleiter inform
the Ortsgruppenleiter only verbally of the contents of this circular.
[typed] signed FRIEDRICHS[301]
Certified [Signature illegible]
TRANSLATION OF DOCUMENT 635-PS
PROSECUTION EXHIBIT 109
LETTER FROM LAMMERS TO REICH MINISTER OF JUSTICE THIERACK, 4 JUNE 1944,
CONCERNING “PEOPLE’S JUSTICE AGAINST ANGLO-AMERICAN MURDERERS,” AND
ENCLOSING BORMANN’S CIRCULAR TO NAZI PARTY LEADERS ON THIS SUBJECT
The Reich Minister and Chief of the Reich Chancellery
Reich Chancellery 681 E secret
[Stamp] Secret
Berlin W 8, 4 June 1944
Vosstrasse 6
[Stamp] at present at Field Headquarters
To the Reich Minister of Justice, Dr. Thierack
Subject: People’s justice against Anglo-American murderers
[Initial] KL [Klemm]
[Handwritten note] Department IV. Circular Decree with the
addition that such cases are to be submitted to me, when
they arise, for an examination of the question of quashing
proceedings.
[Initial] TH [Thierack]
Dear Dr. Thierack,
The Chief of the Party Chancellery informed me about his secret
circular letter,[302] a copy of which is enclosed, and requested me to
inform you as well. I herewith comply with this and beg you to consider
how far you want to inform the Courts and the prosecuting authorities
of it. The Reich Leader SS and Chief of the German Police has, as I was
further told by Reichsleiter Bormann, so instructed his police leaders.
Heil Hitler!
Yours very devoted
[Signed] DR. LAMMERS
EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS
HANS HAGEMANN[303]
_DIRECT EXAMINATION_
DR. SCHILF (counsel for defendant Klemm): What was the last
position you held in the administration of justice?
* * * * * * *
WITNESS HAGEMANN: I was attorney general [Generalstaatsanwalt]
at Duesseldorf.
Q. Since when had you been attorney general at Duesseldorf?
A. Since 1937.
Q. Herr Hagemann, can you remember that in 1944, the Reich Minister of
Justice, Thierack, had issued a so-called circular directive[304] to
all attorneys general which contained an instruction to the effect that
in cases where the German population had exercised lynch justice the
prosecution had been instructed to report to the Ministry about such
cases?
A. Yes, I remember such a decree.
Q. Can you tell the Tribunal what the text was?
A. No, I cannot tell you that. I can tell you the contents and what it
said was that in such cases a report had to be made to the Minister.
Q. Did that decree say anything to the effect that the Minister
intended to quash all such cases?
A. I don’t remember that passage, but it is possible that it did
contain such a passage. Generally speaking, all I remember is the fact
that a report had to be made on such cases, and if such a case had been
pending with me I would have had a look at the decree, and I would have
read it through. However, as no such case ever occurred with me, I
don’t exactly remember the text because it never became topical for me.
Q. Witness, would you kindly make a little longer pause after I finish
my question?
A. Yes, I will.
Q. Was that circular decree a so-called secret decree?
A. Yes, it was.
Q. And how did you keep it? Where did you keep it?
A. Secret decrees were entered in the register by my senior clerk who
was in charge of the registry. After that, they were put in the safe.
Q. Witness, in your district--that is to say, within the area of
the court of appeals of Duesseldorf--in the fall of 1944, a case is
supposed to have occurred where an SA leader shot down two or three
Canadian fliers who had been taken prisoners.
A. Yes, I remember that case perfectly well.
Q. Would you please give the Tribunal an account of that case?
A. In September of 1944 parachutists made an attack near Arnhem. In
the course of that attack some paratroopers drifted away, and came
down near the border between Holland and Germany. There, two Canadian
soldiers were taken prisoner, and an SA leader shot and killed them.
That is the general outline of the case. I did not hear it from the
Chief Public Prosecutor at Cleve who had taken charge of the case, but
I heard it from a judge at the court of appeals who informed me of the
matter. Thereupon, I told the Chief Public Prosecutor in Duesseldorf
to investigate the matter and immediately make a report to me. He
returned; I ordered some additional investigations, and I myself made
investigations, too. I interrogated witnesses, for example. I believe
the best thing would be for me to tell the Tribunal what the results of
all those investigations were.
The two Canadian soldiers had been taken prisoner close to the
frontier. Two customs officials took them back. The Canadian soldiers
were unarmed and, as I think is the custom with prisoners of war, they
held up their hands as they walked along. The two customs officials
took them back like that, until they got to Kranenburg, a little
place on the German-Dutch frontier. At Kranenburg that SA leader was
standing in the street--his name was Kluettgen; next to him stood the
Kreisleiter of Cleve, whose name was Hartmann. When Kluettgen saw those
two prisoners coming along he told them to halt; he drew his pistol
from his pocket and shot at the two Canadian soldiers. Kluettgen was
so cold-blooded that when at first his revolver was jammed he put it
right, and then shot those two soldiers down. As I found out later, at
that time or soon after, he said, “Now I have got two; I now only need
another two or three.” I can’t vouch for the latter figure, I don’t
know exactly what he meant. However when he said, “Now I need another
two or three,” he meant this: In an air raid, I believe, Kluettgen had
lost five close relatives, and it became evident that that killing was
just vengeance for his relatives whom he had lost in that air raid.
That is to say, if I may put it that way, he acted in a modification
of the old saying “An eye for an eye and a tooth for a tooth.” He just
changed it and made the “eye for eye” into “number for number.”
That clarified the SA Leader Kluettgen’s position, but the part
played by the Kreisleiter who had been standing next to Kluettgen,
remained unclear. I believe I can remember that the Kreisleiter had
said something that wasn’t quite above-board, something like, “That’s
right,” or “just do away with them,” or something like that. However,
it was possible to interpret the words in various ways. It is just
possible that he had meant to say, “Kluettgen should shoot them,” or
“Take those two away,” because somebody said afterwards that after
those two people had been killed, the Kreisleiter had said that that
was not what he had intended to happen.
That was the outcome of the investigations.
Now, as to the proceedings that were instituted.
The Chief Public Prosecutor had ordered the police to arrest Kluettgen,
but the police refused to carry out the order. Later on, when I
was interned, I heard from a Gestapo official that there had been
general instructions issued to the police to the effect that men
from the Ortsgruppenleiter upward were to be arrested and proceedings
instituted against them only if the Party Chancellery approved, and
similar instructions had been issued for people in the SA and the SS.
Generally speaking, I did not encounter any difficulties when making
investigations. The SA gave its consent for me to interrogate several
people. The Kreisleiter, however, refused to make a statement until
we obtained the approval, and it was the Party Chancellery which had
to give that approval; that is to say, it was Bormann. Although an
application was made for such consent, it never arrived.
I made a report to the Ministry about the case. Naturally, I had to
make a report because it was an important case, and reports had to be
made to the Ministry about all important cases.
I told the Ministry, over the telephone, about the fact that
proceedings had been instituted, and I believe it was Dr. Mettgenberg
to whom I spoke over the telephone. I told him as much as I knew at
that time. Afterwards I made a written report, that I intended to clear
up the matter, and I eventually managed to clear it up. I also told the
Ministry that I needed its support in order to obtain permission for
the Kreisleiter to make a statement.
The Ministry was altogether in agreement with the way I had handled the
case. I received written instructions. I understood them to want me to
clear up the case completely.
There was no question of quashing the proceedings. Not one word was
said of that.
PRESIDING JUDGE BRAND: One moment please, Witness. Tell
us, please, what did you mean by clearing up the case? Did you mean
prosecute and convict? Or what did you mean?
WITNESS HAGEMANN: What I meant first, was to establish the
facts and once they were established to suggest to the Ministry that an
indictment should be filed against Kluettgen and, if necessary, also
against the Kreisleiter. I could not make a final suggestion at that
stage because I did not yet know what part the Kreisleiter had played.
That is to say, the Ministry agreed that I should carry out my plan to
clear up the case, but because no approval was received from the Party
Chancellery to interrogate the Kreisleiter, we could not close the
proceedings.
There were, of course, also great difficulties of transportation. The
further the war was brought into the country, the more difficult it was
to have any correspondence with Berlin.
Q. What was the date of this case?
A. I am afraid I cannot tell you the exact date. I think one should be
able to find out from the history of the war. It was that parachute
attack near Arnhem. I think I am pretty certain it was in September.
May I say that is the way I remember the case now. The files are in
existence.
Q. It was in 1944?
A. Yes, 1944. I did something which, as far as I know, I never did
in any other case. I had two copies made of that file, one original
file and a copy of it. I gave the original to my senior clerk, and I
told him to keep it, not to leave it in the courthouse at night but
to take it home with him, and to take it with him to the air-raid
shelter in case of an alert. I kept the duplicate myself, and whenever
the alert came I took it with me to the air-raid shelter to make sure
that if anything happened to either my senior clerk or to myself, one
file would always be available, so that there should be no difficulty
in prosecuting the case. I was convinced that this was an important
case not only from the point of view of guilt and expiation in the
individual concrete case, but also that was bound to be of importance
for the German armed forces, for, although I was not a soldier, I
could well imagine that if the Allied forces should come to hear that
the German administration of justice had not prosecuted that case,
they would take retaliation measures against German soldiers, or at
least might do so. In that event, soldiers who were innocent in this
connection might have suffered for what Kluettgen, and possibly also
the Kreisleiter Hartmann, had done.
What may be of interest, is the reaction of the German population in
Kranenburg. There were some German civilians standing in the street
when this happened, who quite openly showed their indignation.
Q. Was any indictment filed against the one who actually did the
shooting?
A. No, that was not done, because we had to wait. The role the
Kreisleiter played--
Q. Please answer this question. Did you have any difficulty with the
securing of the evidence concerning the actual shooting? As you have
told us you apparently had plenty of evidence as to that one person.
A. Yes, against this one man I had the evidence, but as it was possible
that another man was involved--the Kreisleiter--it was important that
we should not just indict one man and deal with him alone, but to
indict them together. We always did that in principle.
Q. Well, let me ask you this. Was that a matter of German law, that
when you knew one man had committed a crime you didn’t prosecute him
because perhaps someone else might have helped him?
A. But we did intend to indict him. We only wanted to await the result
of the investigations concerning the other person, so that we could
indict them both, because if we only indicted one, the proceedings
against the other one would have been confronted with a great many
difficulties. That was the way in which we proceeded, I should say,
almost regularly.
PRESIDING JUDGE BRAND: Very interesting.
DR. SCHILF: Herr Hagemann, I would like to ask one more
question. The President has asked you whether you were confronted with
any difficulties in prosecuting one person. I am referring to Kluettgen
now.
WITNESS HAGEMANN: Yes.
Q. May I ask you to tell us whether you had an opportunity to talk to
Kluettgen yourself, or to interrogate him?
A. I asked the legal adviser of the SA, if possible, to make Kluettgen
come to see me. At first, Kluettgen had worked near Kranenburg, but
afterwards the SA had sent him to the district of Aix-la-Chapelle
[Aachen]. He had some special transport mission there, and when he came
to Duesseldorf on one of those transportation errands, he came to see
me in my apartment one Saturday evening. I was ill; that is why I was
at home. I had a short talk with him, and I was not favorably impressed
with him. He told me that he had killed those two Canadians because he
had been afraid that foreign civilian workers who were loafing around
in that district might have set those Canadians free. I wanted to
refute that statement, and I did refute it by the testimony obtained
from witnesses. However, that motive would have been quite indifferent
for the legal evaluation of the case.
As regards the clearing up of the case, it seemed important to me to
convict the man and prove to him that that motive could not have been
true.
Q. Witness, you have said that the order from the Chief Public
Prosecutor at Duesseldorf to the police, to arrest Kluettgen, had not
been complied with, and now you say Kluettgen came to see you. Did
you, as attorney general, not have the possibility to arrest Kluettgen
immediately?
A. No, I did not have that possibility. It was a Saturday evening, I
was alone in my apartment, and I had no weapons.
Q. You said that Kluettgen had been transferred to the Aix-la-Chapelle
district, and you said that the agency for which Kluettgen worked
had done that. In carrying out your investigations, did you find
any indications that that was done intentionally in order to remove
Kluettgen from your jurisdiction?
A. I did not find indications, and I certainly did not find any proof,
but the possibility exists. However, it is also quite possible that
Kluettgen was transferred from the Kranenburg district because the
population was excited.
Q. Could you just tell the Tribunal approximately when the Allied
troops arrived in Duesseldorf or Aix-la-Chapelle, the district where
Kluettgen was staying at the time.
A. Yes. I can’t tell you exactly when the Allied troops arrived in
Aix-la-Chapelle, but they arrived in Oberkassel, on the left bank of
the Rhine, at the beginning of March, and as far as I remember, they
got to Duesseldorf in April.
Q. Up to that time proceedings were continued, were they?
A. Yes.
Q. And later on, after you had received the support from the Ministry,
no instructions to the contrary were issued to you?
A. No contrary instructions were issued to me. The matter was
concluded. All that was missing was an interrogation of the Kreisleiter.
Q. And, in accordance with your suggestion, they would then have been
indicted?
A. Well, I couldn’t make a suggestion because I didn’t really know
what was the matter with Hartmann yet, but if I had found out, I would
then have suggested the indictment of Kluettgen and possibly of the
Kreisleiter too. However, as far as the Kreisleiter was concerned, that
depended upon those investigations which had not yet been made.
Q. I suppose these facts which you have described to the Tribunal can
be gathered from the files which you have mentioned?
A. Yes.
Q. May I ask you when you saw the files for the last time?
A. In the spring of this year.
Q. What has been done with the files?
A. I gave them to the attorney general, Dr. Junker, in Duesseldorf in
person.
Q. And presumably they are still there?
A. Yes, I am quite sure they must be.
PRESIDING JUDGE BRAND: I would like to ask a question. The
case was pending for investigation from September 1944 until March
1945? Is that what you meant to say?
WITNESS HAGEMANN: Yes.
PRESIDING JUDGE BRAND: Thank you.
DR. SCHILF: Mr. Hagemann, did you ever hear--
PRESIDING JUDGE BRAND: Just a moment. One question.
JUDGE HARDING: What else did the Ministry do about it?
WITNESS HAGEMANN: Well, naturally I don’t know what steps the
Ministry took, but I assume that the Ministry tried to get the Party
Chancellery to give its consent for the Kreisleiter to be interrogated;
again and again I suggested to the Ministry to take such a step.
Q. But you heard nothing further from the Ministry, is that right?
A. No, no, I heard no more later on, because--well, I don’t really
know why they didn’t write again. I have already told you that
transportation difficulties were great, and that it became more and
more difficult to keep in touch by letter or by telegram. For example,
since the middle of March--or anyway I think it must have been since
the middle of March--we were still in a sort of cauldron, we in
Duesseldorf were cut off on all sides from the outside world.
PRESIDING JUDGE BRAND: In March 1945?
WITNESS HAGEMANN: Excuse me. What is it you mean? What
happened in March 1945? You mean it was then that Duesseldorf became a
cauldron? You mean it was then that we became cut off in Duesseldorf?
Q. Yes.
A. Yes, I think it must have been in March 1945, but naturally the
difficulties had been great before that time, I mean the transportation
difficulties, and they grew worse and worse.
DR. SCHILF: Mr. Hagemann, did you ever hear that that man
Kluettgen was recently sentenced to death by an American Military
Tribunal?[305]
WITNESS HAGEMANN: Yes, Dr. Haensel told me that a few days
ago. He told me that he had read in the paper that Kluettgen had been
sentenced to death in Dachau by an American Military Tribunal.
* * * * * * *
_CROSS-EXAMINATION_
MR. LAFOLLETTE: After you communicated with Dr. Mettgenberg
about your trouble with the case, did you ever get an answer back from
him?
WITNESS HAGEMANN: You’re now referring to the first case, are
you? You’re referring to the Kluettgen case, are you?
Q. Yes, I’m referring to the Kluettgen case.
A. Yes, I talked to him over the telephone and then I received an
order from the Ministry to the effect that they agreed with my plan to
clear up the matter and that in particular the Kreisleiter was to be
interrogated. I was also instructed that I should make a further report
and that probably further directives would be issued to me. Naturally,
I had to wait for the instructions from the Minister. Whether it was
Dr. Mettgenberg who had signed that order or whether it was Dr. Vollmer
who was then ministerial director, I naturally can’t tell you, for of
course I was interested in the case as such but not in the man who
signed it.
Q. And before you could do any more, you had to wait for instructions
from the Ministry in all cases where Allied fliers had been shot; is
that right?
A. Well, that is the way I remember that circular decree but that is
the only case that occurred in my area, and the instructions were to
the effect to clear up the matter.
DR. SCHILF: I have no further questions.
PRESIDING JUDGE BRAND: The witness is excused.
EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[306]
_DIRECT EXAMINATION_
* * * * * * *
DR. SCHILF (counsel for defendant Klemm): We now come to the
next charge of the indictment. You are personally made responsible
in the indictment for having assisted in the so-called lynch justice
on the part of the German population exercised on bailed-out Allied
fliers during the war. May it please the Tribunal, the documents which
were introduced against the witness in that connection are NG-364,
Prosecution Exhibit 108; 635-PS, Prosecution Exhibit 109; and NG-149,
Prosecution Exhibit 110.[307] According to Exhibit 108 which we already
discussed a few days ago, Bormann had sent a secret letter from the
Fuehrer Headquarters to the Nazi Party which was addressed to Gau
and Kreisleiter. He spoke about lynch actions which had already been
taken by the people and it says further, and I quote: “no police or
criminal proceedings have been taken against citizens who have taken
part herein.” He is speaking in the past tense. Exhibit 109 shows
correspondence between Lammers and Thierack. Lammers informs Thierack
about this circular letter sent out by Bormann. First, I want to ask
you, in what relationship did you see these statements of Bormann to
the Kreisleiter and Gauleiter to Thierack at the time?
DEFENDANT KLEMM: According to the text of Lammers’ letter,
Exhibit 109, there must have been an enclosure in this letter.
Q. At the time[308] did you obtain knowledge of Exhibit 109 and the
enclosure, as you call it, Exhibit 108?
A. Yes, I saw Lammers’ letter and I must have seen this circular letter
of Bormann’s together with it.
Q. Bormann spoke about three of those cases which had occurred in
the past. Bormann stated that penal prosecution did not take place.
When you saw these two letters--when these Exhibits 108 and 109 were
submitted to you--did you know anything about it, that is that in the
past the administration of justice, that is the courts abstained from
penal prosecution against members of the German population?
A. I consider that that is absolutely impossible. If penal prosecution
would have been abstained from, this could have been done only by
quashing the trial, and for such a quashing Hitler was competent
exclusively or the Minister of Justice to the extent to which this
right had been delegated to him by Hitler. This can be seen from the
clemency regulations which have already been introduced as a document
here, in part. I cannot remember such a case being discussed, and I
cannot find anything in these reports about it either. I looked at them
with that in mind.
Q. If you say that at the time when you received this letter you did
not know any past cases, how should one understand Bormann’s letter? He
is speaking of the past and says that penal prosecutions did not take
place.
A. This can only be explained as follows: According to the letter,
before it was sent out, such cases must have occurred. Himmler had
already in 1943 instructed his police not to interfere in disputes
between the German population and terror fliers which had been shot
down.[309] This was already brought out in the IMT trial. This
sentence which Bormann used in his circular letter can be explained
in my opinion only as follows, namely: that the police did not
forward denunciations to the administration of justice and that in
this way a penal prosecution did not take place, but only because the
administration of justice did not hear anything about these matters.
From the hint that Lammers gives in this letter that Himmler had
already informed his police also on the basis of Bormann’s circular
letter, it is quite clear to me that such denunciations to the
administration of justice were also not to be made in the future. But,
of course it could happen that the administration of justice found out
about such cases on its own and took them up, but incidentally, that
Hitler backed this action himself is in my opinion shown in Exhibit 110.
Q. Mr. Klemm, Exhibit 108 and 109 bear your initials. I now want to ask
you, were these statements submitted to you before they were submitted
to Thierack or after that?
A. I received these documents after Thierack had seen them and after he
had already made his notation on them.
Q. This notation by Thierack reads as follows: “IV R-V with the
addition that such cases for the purpose of examination in regard to
quashing shall be submitted to me,” that is “to me” Thierack, that is
Thierack’s notation. What do you have to say about that? How did you
understand that notation?
A. The prosecution submitted this document with a supplementary
sheet and this says, at least in the German edition of the document,
handwritten note on the right upper corner, signed “Klemm.” That is
not right. There isn’t any handwritten notice in the upper right hand
corner at all but merely a “Kl,” my initials. Below the initials, that
is, about the upper one third of the page, there is the notation which
has just been quoted which was written by Thierack. The handwritten
note is without doubt in Thierack’s handwriting. If the original were
available and not merely a photostat, one would be able to see that
this note was written with a green pencil. That was the color in which
ministers had to sign, according to the business regulations for the
highest Reich authorities. Whereas in a purple pencil only my initials
are on this document.
Every one of the defendants here, if he has been in the ministry, would
be able to testify whether that was my handwriting or not.
PRESIDING JUDGE BRAND: What is the exhibit number on that
again?
DR. SCHILF: Exhibit 109, Your Honor, 109; 635-PS. But may I
remark it is a later sheet. The prosecution submitted Exhibit [108 and
Exhibit] 109 at two different times in two parts.
Now, Mr. Klemm, I want to ask you--
DEFENDANT KLEMM: I want to make an additional explanation. The
figure “IV” means department IV. “R-V” means “Rundverfuegung”, circular
order, with the addition that such cases are to be submitted to me,
that is Thierack, and are to be submitted not for quashing but for the
purpose of examining the question of quashing if they were pending.
Thus, a quashing was not considered from the very beginning.
Q. Did this instruction issued by Thierack have any possibility of
inciting the population to lynch Allied fliers, or how did you look at
it at the time?
A. After the Minister had issued this instruction to Department IV
and thus had arrogated the decision in regard to this to himself, I
no longer had a possibility to undertake anything in the matter. This
circular order was issued with the stamp “secret” on it if it was sent
out at all, and I don’t know that. And one cannot talk about inciting
the population for the reason that the population did not hear about it
at all. However, after Bormann had informed the Party in this manner
and after Himmler had issued his instructions to the police, it was the
duty of Thierack to take some measures in regard to the prosecutions
in the country. I have already stated that the administration of
justice was unwilling, and Thierack was unwilling too, to grant freedom
from prosecution without any conditions like that. Thus, if the
administration of justice wanted to carry out a trial, the Minister had
to assert his authority and to protect the local prosecutors against
any elements of the Party or the police who would like to prevent such
a penal prosecution. If a proceeding was to be quashed, however, only
the Minister himself could do that, because of the regulations by law.
What were the consequences of this circular order in the administration
of justice, I can no longer remember. It may be one or two very special
cases were quashed. I do not know whether there were more such cases.
Q. You said that the administration of justice and Thierack, too,
turned against Bormann’s methods. Can you cite examples for this?
A. The Party did not only require that those people who participated
in lynchings should not be punished, but on the contrary, it wanted to
have severely punished those people who treated fliers who had been
shot down in a humane manner; and they wanted to have them punished
with the aid of the regulations regarding the forbidden contact with
prisoners of war. We did not concur with either of those measures. In
a case which took place in Magdeburg, the Party attempted to achieve
the most severe punishment of a couple which had given food to an enemy
flier who had been shot down and who had received a piece of candy from
him. This was stopped. We had received a report according to which a
couple was arrested because they had allowed an Allied flier who had
been shot down, into their apartment. The Canadian--I believe he was
a Canadian flier--had been taken prisoner during the air raid, that
is, before the all clear signal, by a civilian, and the civilian took
him into his apartment. In this apartment the flier received something
to drink and the Canadian offered the wife a piece of candy. At first
the woman refused it. When he offered it the second time, however,
she accepted it. She then put the piece of candy away and said,
“That is for the children.” The Party had achieved it with the local
administration of justice that the married couple was arrested and that
an indictment would be filed for illicit contact with prisoners of war
in a very serious case. When I heard about this report--I shall shorten
this description somewhat--I reported this case very emphatically to
Dr. Thierack, and during the very same night he called up the Chief
Public Prosecutor in Magdeburg and instructed him to have the married
couple released immediately the next morning.
Q. Mr. Klemm, that is sufficient. I shall submit an affidavit about
this incident. I only want to ask you now, those were cases in which
Germans were prosecuted because they were supposed to have treated
Allied prisoners of war too leniently. Can you also cite the opposite
cases where the Reich administration of justice prosecuted Germans who
participated in lynchings?
A. Around the turn of the year 1944–1945 in Kranenburg that is the
district of the district court of appeals, Duesseldorf, the following
case occurred. An SA leader had, during the course of the air war, lost
three very close relatives of his due to bombing. One noon he passed
the town hall in Kranenburg. There was a guard standing, and with him
he had two captured paratroopers. This SA leader went over to him and
shot the two captured paratroopers. We prosecuted that case and even
though the police as well as the Party offices offered considerable
resistance, these discussions were advanced energetically. I do not
know the final outcome, because later on due to the events of the war
this territory was occupied by the Allied troops.
Q. May it please the Tribunal, may I say briefly I have the approval
of the Court already to submit these files of the General Public
Prosecutor of Duesseldorf. I do not have them here as yet. When I
receive them, I shall then submit them in evidence.
Mr. Klemm, briefly in regard to Exhibit 110, which you have already
mentioned, “terror fliers,” secret military matter, that is how it is
called; and a note. Did you find out anything about that?
A. These are Wehrmacht files and a correspondence with the Foreign
Office, and the problem was to not let terror fliers obtain the status
of prisoners of war.
Q. Let me interrupt you; you do not have to discuss it. Did you find
out about the matter at the time?
A. The administration of justice neither took part in this case nor did
we know anything about it.
Q. The prosecution, furthermore, submitted document 1676-PS,
Prosecution Exhibit 417.[310] It is an article which appeared in the
Voelkischer Beobachter on 28–29 May 1944. The prosecution asserts that
from this article of Goebbels’ in the German press, one can read an
indictment of the population to administer lynch justice. Did you find
out about this article at the time?
A. I did not have knowledge of this article at the time. It was not
the cause for Thierack’s circular letter, which was issued for quite
different reasons; as I just described, it was issued for legal
considerations. Moreover, according to the affidavit in Document
NG-1306, Prosecution Exhibit 440, the issuance of this circular letter
must have occurred at a time which shows that it could have had no
connection with this article in the newspaper.
* * * * * * *
_CROSS-EXAMINATION_
* * * * * * *
MR. LAFOLLETTE: * * * Now we will consider the matter of the
Allied fliers. That document is Exhibit 108 and 109.[311] NG-364,
Prosecution Exhibit 108 was the circular letter from Bormann dated 8
June [30 May] 1944, and Exhibit 109 is Document 635-PS. You testified
yesterday--I mean Friday morning--that the notation by Thierack was
on Exhibit 108 [Exhibit 109] reading, “IV circular with the addition
that such cases are to be submitted to me when they arrive for an
examination of the question in quashing.” That was on there when the
document reached you. We are in agreement on that, are we not?
A. It was an instruction to Division IV to draft such a circular decree
with these contents for the purpose of examining whether the case
should be quashed.
Q. Yes. Now then, you also said, “From the hint that Lammers gives in
this letter--that is Exhibit 109--that Himmler had already informed
his police also on the basis of Bormann’s circular letter, it is quite
clear to me that such denunciations to the administration of justice
were also not to be made in the future but of course it could happen
that the administration of justice found out about these on its own
and took them up, but incidentally Hitler backed that action itself.”
Do you recall, did you do anything after 4 June 1944 when you received
this notation from Thierack about this subject of quashing sentences or
did you let the matter drop?
A. I was not able to do anything, since the minister had ordered
that this circular decree would be drafted and these cases had to be
reported too, because according to the circular letter by Bormann to
the Party and according to the information by Lammers that Hitler
had instructed the police, the public prosecution had to get into
difficulties if it found out about such a case, and if it started an
investigation.
Q. Did you personally take any steps to see that there would be no
prosecutions against anyone who followed Bormann’s instructions?
A. I know for sure, and I have already described, that we did carry
out a proceeding against the party and the police. We continued
investigations, and furthermore, I testified that I cannot recall with
certainty any more whether, on the other hand, one or two cases in
which there was a special situation was quashed. I cannot recall that
any more with certainty.
Q. But you yourself gave no instructions to prosecutors on this line
because that was Thierack’s order, wasn’t that right?
A. Yes, that was Thierack’s order that the public prosecutors were
supposed to report on these matters; after they had reported, the
Minister had to decide whether the investigation and the case were to
be continued or whether the proceedings should be quashed. This means
that the instructions for the purpose of examination were for the
purpose of examining whether the proceedings should be quashed.
* * * * *
D. The Making and Application of Special Measures Concerning Nationals
of Occupied Territories, Minority Groups and Races, and Alleged
“Asocials”
1. INTRODUCTION
Under National Socialist ideology and practice a large number of German
nationals were considered inferior or objectionable on racial and
political grounds. After Hitler came to power in January 1933, German
nationals were subjected to various discriminatory laws and practices,
including protective custody in the hands of the police (usually the
Gestapo or Secret State Police) or confinement in concentration camps.
After Germany occupied the territory of neighboring countries, these
practices were extended to non-German nationals. As the war progressed,
the intensity of discrimination and persecution increased.
In the Justice case, one of the most important issues was the manner
in which German criminal law was extended to the occupied countries.
German penal legislation and special legislation applicable to Poles,
Jews, and others was introduced in that part of western Poland usually
referred to as the “Incorporated Eastern Territories.” Evidence
concerning this aspect of the case appears below in section D2. (A
similar type of question arose in cases where persons who were not
Germans were compelled to work in Germany and accused of treason, of
undermining Germany’s defensive strength, or of being public enemies.
See section E, below.) In the occupied western areas the application
of the Night and Fog decree was the principal measure involving the
judicial process which affected the life and liberty of non-German
nationals. Evidence concerning this matter appears below in section D3.
2. JEWS, POLES, GYPSIES, AND OTHERS
PARTIAL TRANSLATION OF DOCUMENT NG-629
PROSECUTION EXHIBIT 28
[Also Rothenberger Document 3
Rothenberger Defense Exhibit 3]
EXTRACTS FROM A REPORT[312] ON A CONFERENCE OF DEFENDANT ROTHENBERGER
AND VARIOUS COURT PRESIDENTS, 1 FEBRUARY 1939, CONCERNING “RACE
POLLUTION,” EXCLUSIONS OF JEWS FROM EMPLOYMENT, AND “THE LEGAL
TREATMENT OF JEWS”
Report on the conference of [court] presidents on 1 February 1939
Present:
Senator Dr. Rothenberger,
Attorney General Dr. Drescher,
Vice President Letz,
District Court Presidents Korn and Dr. Ruether, Bremen,
Local Court President Dr. Blunk,
Local Court Directors Schwarz, Boehmer, Hansen, and von Lehe,
Senior Judges of Local Court Gersdorf and Stender,
Chief Public Prosecutor Lohse, Bremen,
Oberlandesgerichtsrat Dr. Segelken
and the undersigned.[313]
Senator Dr. Rothenberger and the attorney general reported on the
discussions at the meeting of the presidents of the courts of appeal
and attorneys general with the Reich Minister of Justice.
* * * * * * *
II a. The Chief Public Prosecutor then spoke again on the treatment of
women in cases of race defilement. The Fuehrer refuses an extension of
culpability according to the blood protection law [Blutschutzgesetz].
Concerning complicity he pointed out the contradictory opinions of
police and justice. The public prosecutors are to work according to the
following directives:
If a woman merely denies the intercourse she will not be prosecuted. On
the other hand, if the woman was an active accomplice--if she concealed
the race defiler for instance--she will be prosecuted. If, at the same
time, there are other offenses (perjury) complicity is to be omitted
from the indictment. In such cases, however, a report is to be made to
the Reich Minister of Justice.
Senator Dr. Rothenberger pointed out once more that it is the Fuehrer’s
desire that the woman should not be punished. If, by mistake however,
any person should be indicted or if according to the results of the
main proceedings punishment because of complicity may be expected, the
proceedings are to be quashed in all circumstances. He urged that the
judges be instructed accordingly.
II b. The Chief Public Prosecutor then discussed the problem of
prosecuting women for failing to register illegitimate births. In this
case the Fuehrer is against punishment according to article 169 for
mere concealment of the identity of the father; because he considers
that in most cases the woman’s motive should be respected. The woman
will be prosecuted, however, if she gives false information concerning
the father’s identity.
Senator Dr. Rothenberger completed this statement by saying that it was
the Fuehrer’s express wish that the woman be exempted from punishment;
the Fuehrer had not yet made a final decision in the matter of false
statements. It should therefore be arranged that in such cases the
indictment be temporarily postponed according to article 169. If
necessary, a legal regulation may be expected in the near future.
III. Concerning the extent of the cases tried in accordance with the
gangster decree, the Chief Public Prosecutor reports that up to now 15
cases have been tried by special court in the Reich territory, most
of them in Hamburg. Care must be taken that accomplices do not escape
punishment through the carrying out of the trial before a Special
Court. The complete verdict must, on principle, be submitted before the
death sentence is carried out.
Senator Dr. Rothenberger declared that it would be advisable to make
the fullest possible use of the possibilities of the gangster decree.
The Hamburg cases were considered suitable in Berlin. The Ministry had
now realized that summary courts of the Hamburg type offer the only
proper solution; they will therefore be maintained.
Insofar as Berlin exerts pressure concerning the speed with which the
verdicts are delivered, this pressure must not go beyond the field of
the administration of justice and affect the judges. The verdict must
be submitted before the death sentence is carried out. In his opinion a
typewritten report on the oral verdict, as prescribed for Hamburg, is
sufficient.
He considers that the publication of sensational reports in the press
on such trials is extremely undesirable; there was general agreement
on this. Senator Dr. Rothenberger promised that he would personally
contact the competent authorities in order to stop such reports in the
future.
* * * * * * *
V. The Chief Public Prosecutor then reported briefly that civil
servants with Jewish blood are on principle excluded from employment
and that it is necessary to make a report on exceptions.
No pressure is to be put on civil servants to induce them to subscribe
to the Party newspapers.
VI. Senator Dr. Rothenberger then stated the ministry’s opinion on
various special questions concerning the legal treatment of Jews.
(1) In cases where a Jew asks a bailiff to execute a sentence against
an Aryan, the bailiff is not authorized to refuse to do so.
(2) Aryan tenants of a Jewish landlord are obliged to pay rent.
(3) Jews enjoy protection against eviction and tenant’s protection to
the same extent as Aryans.
(4) The order suspending execution also applies to Jews in accordance
with the laws in effect. There may be exceptions in individual cases,
when it is purely a matter of opinion, for example when a radio is
seized.[314]
(6) The fact that a debtor is a Jew should as a rule be a reason for
arresting him. However, it depends upon the individual case.
(7) Security for the costs of litigation must not be demanded from a
Jew to a larger extent than from anybody else.
(8) Naturally, a Jew may be heard as a witness, but extreme caution is
to be exercised in weighing this testimony. Senator Dr. Rothenberger
requested that no verdict should be passed in Hamburg, when a sentence
would exclusively be based on the testimony of a Jew.
Senator Dr. Rothenberger then requested the presiding and supervising
judges to accordingly and urgently call the attention of the judges
concerned to the questions dealt with.
TRANSLATION OF DOCUMENT NG-590
PROSECUTION EXHIBIT 198
LETTER FROM THE REICH MINISTRY OF JUSTICE, SIGNED BY DEFENDANT
METTGENBERG, TO THE PRESIDENT OF THE DISTRICT COURT AND THE
CHIEF PUBLIC PROSECUTOR IN HAMBURG, 1 APRIL 1939, CONCERNING THE
REDESIGNATION OF JEWISH NAMES IN CRIMINAL PROCEEDINGS
_Carbon Copy_
The Reich Minister of Justice
III g^9 93/39
Berlin, 1 April 1939
[Stamp]
Hanseatic Court of Appeal
Received: 15 April 1939
Through the President of the Court of Appeal and the
Attorney General, to 1412 Bls 1938--
To the
President of the District Court and the
Chief Public Prosecutor
Hamburg
Document reference made for: 400 1a
Subject: Criminal Case against the former physician Albert Israel
Leopold for race defilement
11 K Ls 108/38
In the indictment of 17 October 1938 as well as in the verdict of 14
December 1938, Leopold’s profession is given as a physician, although
his permit expired on 30 September 1938 pursuant to article 1 of
the fourth ordinance of the Reich Citizenship Law of 25 July 1938
(Reichsgesetzblatt I, p. 969). This applies also to the report of the
Chief Public Prosecutor to the Reich Minister of the Interior of 6
February 1939. In this connection also the given name Israel should
have been added to the first name Albert pursuant to article 2, section
1 of the second ordinance of 17 August 1938 for the implementation of
the law concerning changes of family names and first names.[315]
I ask you to take the necessary steps and especially to take care that
in criminal cases against Jews which were filed prior to 1 January 1939
the names given will be rectified as far as this has not already been
done.
BY ORDER
[typed] Signed: DR. METTGENBERG
1. 1 copy to the president of the district court with the
request to make further use of it.
2. 2 copies to the attorney general
3. Wegl
19 April 1939
PARTIAL TRANSLATION OF DOCUMENT NG-880
PROSECUTION EXHIBIT 459
LETTER FROM MINISTRY OF JUSTICE, SIGNED BY DEFENDANT SCHLEGELBERGER,
TO MINISTER OF INTERIOR AND THE FUEHRER’S DEPUTY, 3 FEBRUARY 1940,
TRANSMITTING DRAFTS OF DECREES FOR INTRODUCING GERMAN LAW INTO
INCORPORATED EASTERN TERRITORIES, AND A MEMORANDUM OF THE REICH
CHANCELLERY INITIALED BY LAMMERS AND DEFENDANT KLEMM
The Reich Minister of Justice
3200/4 1a-9-312
Berlin W 8, 3 February 1940
Wilhelmstrasse 65
Telephone 110044,
Long distance 11 6516
_Urgent_
To:
_a._ The Minister of the Interior
_b._ The Fuehrer’s Deputy[316]
Berlin W 8
Wilhelmstrasse 64
Subject: Introduction of the German Court Constitutional Law,
and German Criminal Law in the Incorporated Eastern
Territories
To _a._ In reply to communication dated 19 January 1940.
I East 40/40
4024
Enclosures: 3 drafts
I request agreement as soon as possible to the drafts enclosed--
(_a_) An order concerning the abolition of the district court of
appeal at Marienwerder, and the modification of the court district.
(_b_) An order concerning the court organization and court
constitution in the Incorporated Eastern Territories.
(_c_) An order concerning the taking effect of legal regulations
in the sphere of the administration of criminal law in the Incorporated
Eastern Territories.[317]
An additional draft concerning the introduction of legal regulations in
the sphere of the administration of civil law will be dispatched at the
same time.
I have likewise asked the Reich Minister of Economics and the Reich
Minister for Public Enlightenment and Propaganda for their agreement
with regard to article 1, I, Nos. 8, 10, and 11 of draft (c).
Furthermore, I have asked for the agreement of the Reich Protector for
Bohemia and Moravia concerning article 1, II, No. 2 of draft (c). The
organization of the courts in the Incorporated Eastern Territories was
completed several months ago, and German courts are working everywhere
there and applying German law, without this application of law having
found its legal basis. The Reich governor of the Reich Gau Wartheland
in a letter dated 11 December 1939 told me that it is now desirable
for the application of German law by German courts to receive a legal
basis. Likewise the Reich governor of the Reich Gau Danzig/West
Prussia had me informed that it would conform to his wishes if the
German law were henceforth introduced legally in the Incorporated
Eastern Territories. The introduction of German law is also necessary,
because the regulation for the prevention of acts of violence in the
Incorporated Eastern Territories, prepared by the Ministry of the
Interior, tacitly implies the application of German criminal law and
court constitutional law.
I note the following concerning the individual drafts:
1. Draft (_a_)--In this draft I have summarized those regulations
from the draft of an order concerning court organization in the
Incorporated Eastern Territories which I had dispatched together with
a letter dated 26 October 1939--Ia-9-1961, according to which the
district court of appeal at Marienwerder is to be abolished. At the
same time the draft contains the measures necessary in this connection,
and those for the relevant delineation of the court districts in the
territory of the former Free City of Danzig.
2. Draft (_b_)--This draft regulates the court organization in the
Incorporated Eastern Territories, with the exception of the territory
of the former Free City of Danzig; at the same time it introduces court
constitutional regulations, valid in the old Reich, into these parts of
the territory.
3. Draft (_c_)--Reference to article 1--The temporary
modifications of the law concerning criminal procedure contained in
article 1, II, Nos. 1 and 2, are expressly desired by both Reich
governors, and are essential with regard to the special circumstances
in the Incorporated Eastern Territories.
The modification of the regulation of the Special Court dated 21 March
1933[318] provided for in article 1, IV, entitles the Special Courts
in the Incorporated Eastern Territories temporarily to assume the
character of a civilian court martial to a still greater extent.
Reference to articles 5 and 7--As, according to article 5, the
execution of punishment is provided for to a certain extent on the
basis of Polish verdicts, a reopening of the trial must be rendered
possible for which German law is applicable. In addition there is a
necessity to carry out anew legally closed Polish criminal proceedings
in cases which have to be given special consideration. However, this
should only occur in accordance with my order as set forth in article
5, section 2.
Reference to article 6--The regulation shall make it possible that
dangerous habitual criminals and dangerous sexual criminals be rendered
harmless by the subsequent order for protective custody or castration.
Reference to article 10--Thus, the actual German criminal law is also
declared applicable to those crimes which were committed before the
decree became effective in the Incorporated Eastern Territories. But
in accordance with article 1, II, number 1, prosecution need not be
enforced; also the public prosecutor only prosecutes if public interest
requires subsequent punishment.
In consideration of the fact that the introduction of German law in the
Incorporated Eastern Territories is imperative for reasons of legal
security, may I request that the affair be expedited?
As deputy
[Signed] DR. SCHLEGELBERGER
Enclosure c
_Order regarding the Coming into Force of Legal Regulations in the
Field of Administration of Justice in Penal Law within the Annexed
Eastern Territories February 1940_
By virtue of article 8 of the decree of the Fuehrer and Chancellor
regarding the formation and administration of the Incorporated Eastern
Territories of 8 October 1939 (Reich Law Gazette I, p. 2042) in the
version of the decree of 2 November 1939 (Reich Law Gazette I, p. 2135)
the following is decreed regarding the administration of justice in
penal law within the annexed Incorporated Eastern Territories excepting
the territory of the former Free City of Danzig:
Article 1
_Coming into force of regulations of criminal law_
It is ordered that within the sphere of administration of justice in
criminal law the following laws and orders as well as the regulations
decreed for the purpose of changing and supplementing them and the
introductory, regulatory, and temporary regulations, in as much as it
is not ruled otherwise:
I
1. The Criminal (Penal) Code for the German Reich.
2. The law against the criminal use of explosives which are dangerous
to the public of 9 June 1884 (Reich Law Gazette, p. 61).
3. The law regarding the punishment of deprivation of electrical work
of 9 April 1900 (Reich Law Gazette, p. 228).
4. The ordinance of the Reich President against unauthorized use of
vehicles and bicycles of 20 October 1932 (Reich Law Gazette I, p. 496).
5. The law to ward off political illegal actions of 4 April 1933 (Reich
Law Gazette I, p. 162).
6. The law to guarantee law and order of 13 October 1933 (Reich Law
Gazette I, p. 723).
3200/4 Ia 2 312
I.P.O. 845
7. The law concerning insidious attacks against the State and the Party
and for the protection of the Party uniform and insignia of 20 December
1934 (Reich Law Gazette I, p. 1269)[319].
8. The law against economic sabotage of 1 December 1936 (Reich Law
Gazette I, p. 999)[320].
9. The law against highway robbery by means of car traps of 22 June
1938 (Reich Law Gazette I, p. 651).
10. The order on extraordinary measures concerning radio of 1 September
1939 (Reich Law Gazette I, p. 1683)[321].
11. Article 1 of the war economy decree of 4 September 1939 (Reich Law
Gazette I, p. 1009)[322].
12. The order against public enemies of 5 September 1939 (Reich Law
Gazette I, p. 1679)[323].
13. The Articles 1 and 4 of the ordinance for the protection against
juvenile major criminals of 4 October 1939 (Reich Law Gazette I, p.
2000).
14. The order supplementing penal provisions for the protection of the
Military Efficiency of the German people of 25 November 1939 (Reich Law
Gazette I, p. 2319)[324].
15. The order against violent criminals of 5 December 1939 (Reich Law
Gazette I, p. 2378)[325].
II
The Reich Code of Criminal Procedure, but for the present with the
following provisos:
1. Article 152, paragraph 2 of the Reich Code of Criminal Procedure
(compulsory prosecution) and the regulations of articles 172 to 177
of the Reich Code of Criminal Procedure (proceedings to enforce legal
action) do not apply. The public prosecutor prosecutes acts which he
deems necessary to be punished in the public interest.
2. The regulations of articles 374 to 394 and 395 to 406 of the Reich
Code of Criminal Procedure (private prosecution, concurring action)
only apply, if the injured person is a German national, racial German,
national of the Protectorate Bohemia and Moravia or of a state which
is not at war with Germany. The regulations of Reich law according to
which an office of the state is authorized to join in the bringing of a
civil action as coplaintiff remain unaffected.
3. Reopening [of proceedings] to the previous status [Wiedereinsetzung
in den vorigen Stand] in case of failure of appearance at set term
[Versaeumung einer Frist] (articles 44 to 47 of the Reich Code of
Criminal Procedure) has to be granted even if the person failing to
appear was prevented from appearing through no fault of his own.
III
1. The law concerning the indemnification of persons acquitted in the
retrial of 20 May 1898 (Reich Law Gazette, p. 345).
2. The law concerning the compensation for innocently suffered pretrial
detention of 14 July 1904 (Reich Law Gazette, p. 321).
3. The law concerning restricted information from the penal record and
the canceling of penal entries of 9 April 1920 (Reich Law Gazette, p.
507).
4. The juvenile court law of 16 February 1923 (Reich Law Gazette I, p.
135).
5. The penal register order in the version of 17 February 1934 (Reich
Law Gazette I, p. 140).
6. The law concerning interrogation of members of the National
Socialist German Labor Party and its formations of 1 December 1936
(Reich Law Gazette I, p. 994).
7. The regulation concerning fees for witnesses and experts in the
version of 21 December 1925 (Reich Law Gazette I, p. 471).
8. The law concerning court costs in the version of 5 July 1927 (Reich
Law Gazette I, p. 152), insofar as it refers to penal matters.
9. The regulation concerning fees for attorneys at law in the version
of 5 July 1927 (Reich Law Gazette I, p. 162), insofar as it refers to
penal matters.
IV
1. The order of the Reich government concerning the formation of
Special Courts of 21 March 1933 (Reich Law Gazette I, p. 136).[326]
2. Parts I, III, and IV of the order concerning the extension of the
competency of Special Courts of 20 November 1938 (Reich Law Gazette I,
p. 1632), but for the present with the following measures:
Article 16, paragraph 2 of the order of the Reich government concerning
the formation of Special Courts of 21 March 1933 (Reich Law Gazette I,
p. 136) does not apply. The Special Court will decide upon a reopening
of the proceedings.
Article 2
_Temporary annulment of the existing law_
The penal law which at present has been valid in the annexed
Incorporated Eastern Territories, except the area of the hitherto Free
City of Danzig and which opposes the new law or which regulates the
same subject, is canceled with the coming into force of the new law.
Article 3
_Application of the new law_
Insofar as a regulation coming into force cannot be applied directly,
it has to be applied according to the meaning.
If a regulation coming into force refers to a regulation not yet valid
in the annexed Incorporated Eastern Territories, this reference has to
be interpreted according to the law valid there.
Article 4
_Application of the law hitherto valid_
The general regulations of the Criminal (Penal) Code for the German
Reich have to be applied directly or according to meaning to criminal
offenses which have to be judged according to the law valid up to now.
Insofar as a regulation of the law hitherto valid remains in force for
the time being refers to a regulation which is going to be abolished,
the corresponding regulation of the new law has to take its place.
Article 5
_Reopening of the procedure_
The reopening of the procedure against valid judgments of foreign
courts is determined by the law coming into force.
The Reich Minister of Justice can order that procedures which have been
finished by a valid judgment of foreign courts are to be reopened.
Article 6
_Supplemental order of security and improvement measures_
Part 5, Nos. 2 and 3 of the law against dangerous habitual criminals
and concerning security and improvement measures of 24 November 1933
(Reich Law Gazette I, p. 995) is valid, with the proviso that * * *
takes the place of 1 January 1934 as key date.
Article 7
_Execution of sentence_ [_Strafvollstreckung_]
Punishments or other measures which have been passed as valid by a
foreign court are only being executed if in each case the public
prosecutor orders the execution. It is he who orders the way and the
amount of the punishment or any other measure to be executed.
Article 8
_Execution of sentence_ [_Strafvollzug_]
The execution of imprisonment sentences and the security and
improvement measures concerning deprivation of liberty is determined by
the principles of execution of sentence under the Reich law (part I of
the order concerning the execution of terms of detention and security
and improvement measures, which are connected with confinement of 14
May 1934, Reich Law Gazette I, p. 383).
Article 9
_Fines_
Legally passed fines are payed over to the Reich Treasury.
Article 10
_Validity_
The penal laws defined in article 1 under I and the articles 1 to 15
of the Juvenile court law of 16 February 1923 (Reich Law Gazette I, p.
135) apply also to criminal offenses that have been committed in the
annexed Incorporated Eastern Territories before the coming into force
of the order with the exception of the area of the hitherto Free City
of Danzig.
Article 11
_Authorization_
The Reich Minister of Justice is authorized to issue the regulations
and temporary regulations necessary for the carrying-out and completion
of this order. He may administratively adjudicate upon cases of doubt
which arise from the introduction of the new law.
Article 12
_Effective date of the order_
This order comes into force on...................., 1940.
Berlin,...................., February 1940
The Reich Minister of the Interior
The Reich Minister of Justice
Berlin, 14 February 1940
Reference: Reich Chancellery 2573 B
Subject: Introduction of the German civil and commercial law
in the Incorporated Eastern Territories
1. Comment--The Minister of Justice transmits a letter addressed
to the Supreme Reich Agencies containing two drafts of the orders
concerning the introduction of the German civil and commercial law
in the Incorporated Eastern Territories. He asks for the submission
of wishes for possible alterations. The drafts provide for the
introduction of the entire civil and commercial law in the Incorporated
Eastern Territories, excluding only the tenant protection law, the
hereditary farm law, and the law for the clearance of debts and
reduction of interest. Fundamentally, the German law as applicable in
the Reich proper must be introduced; it will, however, be adapted by
special supplementary regulations for the districts formerly under the
jurisdiction of Austrian law.
The Minister of Justice justifies this by stating that the judges _de
facto_ already apply the German law, since they are in practice
unable to interpret the Polish law. Although it was suggested during
a conference of the under secretaries in the autumn of this year that
more discretion should be used when introducing the German law for
the present, the competent Reich governors now deem the introduction
necessary; Reich Governor Greiser expressed this also in writing, as
may be seen from the letter from the Minister of Justice, dated 3
February 1940, a copy of which is enclosed. The Minister of Justice
asks that the introduction be effected at an early date.
No comments are necessary.
2. Duly submitted to the Reich Minister.
[Initial] L [Lammers] 16 February
3. To be filed.
[Initial] KL [Klemm] 14 February
[Initial] F [Ficker]
February 13
TRANSLATION OF DOCUMENT NG-1612
PROSECUTION EXHIBIT 519
DECREE OF 13 JUNE 1940 CONCERNING ORGANIZATION OF COURTS
IN THE INCORPORATED EASTERN TERRITORIES
1940 REICHSGESETZBLATT, PART I, PAGE 907
By virtue of the decree of the Fuehrer and Reich Chancellor concerning
organization and administration of the eastern territories of 8 October
1939 (Reichsgesetzblatt I, p. 2042), the following is hereby ordered:
Article 1
The courts in the Incorporated Eastern Territories shall render
judgments in the name of the German people.
Article 2
The following statutes shall take effect in the incorporated
territories:
1. The German law on the organization of courts.
2. The law on the jurisdiction of courts, with respect to changes in
the division of courts, of 6 December 1933 (Reichsgesetzblatt I, p.
1037).
3. The decree concerning a uniform organization of courts, of 20 March
1935 (Reichsgesetzblatt I, p. 403).
4. The law concerning the distribution of functions in the courts of 24
November 1937 (Reichsgesetzblatt I, p. 1286).
5. The decree concerning qualifications for the offices of judge,
public prosecutor, notary public, and attorney, of 4 January 1939
(Reichsgesetzblatt I, p. 5).
6. Decree concerning preparation for the offices of judge and public
prosecutor, of 16 May 1939 (Reichsgesetzblatt I, p. 917).
7. Decree concerning measures in the organization of courts and the
administration of justice, of 1 September 1939 (Reichsgesetzblatt I, p.
1658), and the implementing orders issued hitherto on 8 September and 4
October 1939 (Reichsgesetzblatt I, pp. 1703, 1944).
8. Decree concerning simplification of the legal examinations of 2
September 1939 (Reichsgesetzblatt I, p. 1606).
Article 3
This decree shall take effect as of 15 June 1940.
Berlin, 13 June 1940
DR. GUERTNER
Reich Minister of Justice
FRICK
Reich Minister of the Interior
TRANSLATION OF SCHLEGELBERGER DOCUMENT 60
SCHLEGELBERGER DEFENSE EXHIBIT 26
DECREE OF 6 JUNE 1940 ON THE INTRODUCTION OF GERMAN PENAL
LAW IN THE INCORPORATED EASTERN TERRITORIES[327]
1940 REICHSGESETZBLATT, PART I, PAGE 844
On the basis of articles 8 and 12 of the decree of the Fuehrer and
Reich Chancellor on the organization and administration of the
Incorporated Eastern Territories of 8 October 1939 (Reichsgesetzblatt
I, p. 2042), the following is decreed on the administration of criminal
law in the Incorporated Eastern Territories:[328]
* * * * * * *
Article II
_Special regulations with regard to criminal law for the Incorporated
Eastern Territories_
Section 8
(1) Anyone committing an act of violence against a member of the German
armed forces or their auxiliaries, the German police including their
auxiliary forces, the Reich labor service, or a German authority, or
office, or organization of the NSDAP will be punished with the death
penalty.
(2) In less serious cases, particularly when the perpetrator has
allowed himself to be carried away by excusable violent excitement, a
sentence of hard labor for life or for a certain period of time, or
imprisonment is to be imposed.
Section 9
Anyone who willfully damages the equipment of German authorities, or
things which further the work of the German authorities or serve the
public welfare will be punished with the death penalty, and in less
serious cases with hard labor for life or for a certain period of time,
or with imprisonment.
Section 10
Anyone who instigates or incites disobedience of a decree or order
issued by German authorities will be punished with the death penalty,
and in less serious cases with hard labor for life or for a certain
period of time or imprisonment.
Section 11
Anyone who commits an act of violence against a German on account of
his being a member of the German ethnic community will be punished with
the death penalty.
Section 12
Whoever willfully commits arson (arts. 306 to 308 of the Reich Penal
Code) will be punished with the death penalty. [Page 846]
Section 13
Whoever conspires to commit a crime punishable in accordance with
sections 8 to 12 [herein] or enters into serious negotiation thereon,
and offers to commit such a crime or accepts such an offer will be
punished with the death penalty, and/or in less serious cases with hard
labor for life or for a certain period of time or imprisonment.
Section 14
(1) Anyone who receives authentic information of the project or
carrying out of a crime punishable in accordance with sections 8 to 12
at a time when the carrying out or the success can still be averted and
omits to give the authorities or person threatened due warning will be
punished with the death penalty, and/or in less serious cases with hard
labor for life or for a certain period of time or imprisonment.
(2) If the person upon whom it is incumbent to give warning, and
who omits to do so is a relative of the perpetrator punishment can
be waived if he has earnestly tried to restrain his relative from
committing the act or to prevent its success.
Section 15
(1) Anyone who has failed to comply with the surrender obligation as
stipulated in the decree of the Commander in Chief of the Army of 12
September 1939 (Ordinance Gazette for the Occupied Territories in
Poland, p. 8) or is otherwise caught in unauthorized possession of a
firearm, a hand grenade, or explosives will be punished with the death
penalty; the same applies for the unauthorized possession of ammunition
or other implement of war if by their nature or quantity public
security is endangered.
(2) A sentence of hard labor or imprisonment will be passed if the
perpetrator subsequently makes the delivery voluntarily, before the
case has been brought before the court or an inquiry against him has
been instituted. In this case punishment may even be waived.
(3) The person who has authentic cognizance of illegal possession of
weapons, ammunition, explosives, or implements of war and fails to
inform the official authorities accordingly without delay will receive
capital punishment, in less severe cases hard labor for life or for a
certain period or a term of imprisonment.
Section 16
(1) The provisions of sections 8 to 15 are not applicable to--
1. German nationals, ethnic Germans and nationals of the Protectorate
of Bohemia and Moravia.
2. Nationals of states which are not participating in the present war
against Germany.
(2) The Reich governors and provincial presidents are authorized to
exempt from the regulations of sections 8 to 15 other ethnic groups too.
* * * * * * *
Berlin, 6 June 1940
Reich Minister of the Interior
FRICK
Reich Minister of Justice
DR. GUERTNER
TRANSLATION OF DOCUMENT NG-144
PROSECUTION EXHIBIT 199
LETTER FROM DEFENDANT SCHLEGELBERGER TO LAMMERS, 17 APRIL 1941,
CONCERNING “PENAL LAWS FOR POLES AND JEWS IN THE INCORPORATED EASTERN
TERRITORIES”
[Handwritten] submitted (last time)
Reich Chancellery
4.79 blb BBT 740 to 419/140
[Stamp] Reich Chancellery 5850 B 17 Apr. 1941
One Enclosure
The Reich Minister of Justice
9170 Eastern Territories 2-II a 2 996/41
Berlin W 8, 17 April 1941
Wilhelmstr. 65
Telephone 11 00 44
Long distance 11 65 16
To: The Reich Minister and Chief of the Reich Chancellery
Subject: Penal laws against Poles and Jews in the Incorporated
Eastern Territories
[Handwritten] see statement of 22 April
Reply to letter of 28 November 1940
Reich Chancellery 17 428 B
1 Enclosure
I worked on the premise that special conditions in the Incorporated
Eastern Territories also require special measures for the
administration of the penal laws against Poles and Jews. As soon as
the decree issued on 5 September 1939 by the Commander in Chief of the
Army had introduced the Special Courts in the Incorporated Eastern
Territories, I tried to make these courts, with their particularly
prompt and energetic procedure, centers for combating all Polish and
Jewish criminals. That I succeeded is shown by the very impressive
numbers of cases dealt with by the Special Courts during the first 10
months of their activity in the Incorporated Eastern Territories. The
Special Court in Bromberg, for instance, has sentenced 201 defendants
to death, 11 to penal servitude for life, and 93 to terms of penal
servitude amounting to 912 years in all, thus an average 10 years’
penal servitude for each individual. Only crimes of lesser significance
were indicted at the local courts. On the other hand, the criminal
courts were eliminated as far as possible as an appeal to the Reich
Supreme Court against their judgment is permitted, and I wanted to
prevent courts which were not entirely familiar with the special
conditions in the eastern territories--even though it be the highest
court in Germany--from giving a decision in these matters.
The aim of creating a special system of law [Sonderrecht] for Poles
and Jews of the eastern territories was systematically pursued by the
decree of 6 June 1940,[329] which formally introduced the German penal
law applied in the eastern territories from the very beginning. In the
sphere of the code of criminal procedure, compulsory prosecution no
longer exists; the public prosecutor prosecutes only such acts which
he thinks it necessary to punish in the public interest. The procedure
of compulsory prosecution (arts. 172, et seq., of the Code of Criminal
Procedure) was rescinded as it 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.
In article II of the introductory decree [of 6 June 1940], special
cases for action [Sondertatbestaende] were annexed to the special
system of law in the sphere of legal proceedings--cases which had been
agreed upon with the Reich Minister of the Interior because they had
become necessary. It was intended from the beginning that such special
cases for action should be increased as soon as necessity arose. The
decree for the execution and completion of the introductory decree
mentioned in the letter from the Fuehrer’s deputy was meant to meet
the requirements which had become known in the meantime; whereas the
decrees mentioned also in said letter concerning the introduction of
the right of extradition, and of the law concerning the use of weapons
by persons entitled to the protection of forestry and game laws, are
only remotely connected with the criminality of Poles and Jews, and
are intended exclusively to develop the general coordination of law in
the eastern territories. I shall try to bring about an agreement with
the Fuehrer’s deputy in regard to both the last mentioned decrees, as
well as the decree for the execution of the law for the cancellation of
sentences, and the decree concerning criminal records.
On being informed of the Fuehrer’s intention to discriminate basically
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 district courts of appeal and the attorneys
general of the Incorporated Eastern Territories--the attached
draft[330] concerning the administration of the penal laws against
Poles and Jews in the Incorporated Eastern Territories and in the
territory of the former Free City of Danzig.
This draft amounts to a special system of law both in the sphere of
actual penal law and that of criminal procedure. In this connection,
the suggestions made by the Fuehrer’s deputy were taken into
consideration to a great extent. Paragraph (3) of No. 1 contains a
statement of facts in general terms, through which penal proceedings
can be taken in future against any Pole or Jew belonging to the eastern
territories who is guilty of punishable activities directed against the
German race, and every kind of punishment is provided. This ordinance
is supplemented by No. 1, paragraph (2), which is already contained in
the preliminary ordinance, and which threatens the death sentence in
cases of violence committed against a German by reason of his belonging
to the German ethnic group. Furthermore, the cases in No. 1, paragraph
(4) which are also contained in the preliminary ordinance, are only
complements, which would perhaps no longer have been necessary in
view of the new general statement of facts, but which I have included
in order not to arouse a false impression that the scope of the acts
liable to punishment according to this draft is more restricted than
in the existing legislation. Finally, No. 2 makes it clear that a Pole
will in any case also be punished for such acts as are punishable
if committed by a German. Furthermore, the ordinance admits a wider
application of the law in a manner appropriate to the requirements of
the eastern territories. (Art. 2, Penal Code.)
I have already been in agreement with the opinion held by the Fuehrer’s
deputy, that a Pole is less sensitive to the imposition of an ordinary
prison sentence. Therefore, I had taken administrative measures to
insure that Poles and Jews be separated from other prisoners and
that their imprisonment be rendered more severe. No. 3 goes still
further 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. For these new kinds of
punishment, the prisoners are to be lodged in camps outside of prisons
and are to be employed there on hard and very hard labor. There are
also administrative measures which provide for special disciplinary
punishment (imprisonment in an unlighted cell, transfer from a prison
camp to a more rigorous prison camp, etc.).
The new kinds of punishment in No. 3 apply to all offenses committed by
Poles and Jews, thus also to cases when the criminal commits a crime
specified by the Penal Code. On the other hand, No. 3, paragraph (3),
insures that the minimum penalty prescribed by German penal law and a
mandatory penalty may be lessened if the crime was directed entirely
against the criminal’s own nation.
The part concerned with procedure contains first the special
regulations of the preliminary decree existing up to now. In addition,
Poles and Jews sentenced by a German court are 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 for the case to 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. Furthermore, an
important point is that according to No. 10, paragraph (2), the locally
competent court of appeal decides concerning a nullity plea, which
insures that no court outside the eastern territories has anything
to do with proceedings against Poles and Jews. Further, No. 12 gives
the court and the prosecution an independent position, meeting all
requirements, with regard to the law concerning the constitution of the
courts and the Reich law of criminal procedure.
No. 13 makes the factual special legislation against Poles and Jews and
the elimination of compulsory prosecution apply also in cases where
the Polish or Jewish criminal does, in fact, reside in the eastern
territories, but the crime has been committed in another part of
greater Germany.
In my opinion, a special penal law against Poles and Jews in such a
form would neither restrict the liberty of action of German offices and
officials, nor allow Poles and Jews to profit from its introduction
insofar as they would be able then to lodge unwarranted actions and
complaints against German officials. Factual penal law provides for
such an increase in severity in the penalties threatened that these
will act as the strongest possible deterrent. Any hole in the law
through which a Polish or Jewish criminal might slip is also closed.
In the sphere of criminal procedure, the draft shows clearly the
difference in the political status of Germans on one side and Poles and
Jews on the other.
The introduction of corporal punishment, as discussed by the Fuehrer’s
deputy, has not been included in the draft, either as a criminal
sentence or a disciplinary measure. I cannot agree to this form of
punishment as in my judgment it would not correspond to the level of
civilization of the German people.
Criminal proceedings based on this draft will accordingly be
characterized by the greatest possible speed, together with immediate
execution of the sentence, and will therefore in no way be inferior to
civilian court martial proceedings. The possibility of applying the
most severe penalties in every appropriate case will enable the penal
law administration to cooperate energetically in the realization of the
Fuehrer’s political aims in the eastern territories.
I intend to have the draft submitted to the Ministerial Council for the
Defense of the Reich for approval. I should like, however, to discuss
the matter verbally with you prior to that, and to request you if
possible to get the Fuehrer’s decision as to whether he agrees with the
essentials of the intended regulations.
Acting Minister of Justice
[Signed] SCHLEGELBERGER[331]
TRANSLATION OF DOCUMENT NG-331
PROSECUTION EXHIBIT 343
DRAFT OF A PROPOSED ORDINANCE CONCERNING PENAL LAW FOR POLES AND
JEWS IN THE INCORPORATED EASTERN TERRITORIES, PREPARED BY DEFENDANT
SCHLEGELBERGER AND SUBMITTED TO THE CHIEF OF THE REICH CHANCELLERY ON
17 APRIL 1941[332]
_Ordinance concerning the administration of justice regarding
Poles and Jews in the Incorporated Eastern Territories_
Of....................1941
The Ministerial Council for Reich Defense decrees the following law:
1. _Substantive Penal Law_
I
(1) Poles and Jews living in the Incorporated Eastern Territories
have to conduct themselves according to the German laws and to the
instructions issued for them by the German authorities. They have to
refrain from every act detrimental to the sovereignty of the German
Reich or to the prestige of the German people.
(2) They will be punished by death if they commit an act of violence
against a German on account of his membership in the German ethnic
community.
(3) They will be punished by death, in less severe cases with an
imprisonment, if they manifest an attitude hostile to Germany by
hateful or inflammatory activity. Especially, if they talk in a way
which is inimical to Germany or if they tear down or damage public
announcements posted by German authorities or offices. Also, if they
lower or damage the prestige or the welfare of the German Reich or the
German people by their conduct in general.
(4) They will be punished by death, in less severe cases with
imprisonment--
_1._ If they commit an act of violence against any member of the
German armed forces or its auxiliaries, the German police including its
auxiliaries, the Reich labor service, a German authority or office or
an organization of the NSDAP;
_2._ If they deliberately cause damage to installations of the
German authorities, or offices, or to things which are used in the
course of their work or are established for the public interest;
_3._ If they encourage or stimulate disobedience against a decree
or ordinance issued by the German authorities;
_4._ If they enter a conspiracy for committing any action
punishable according to paragraphs 2, 3, and 4 No. 1–3. Also if they
enter into earnest conferences about such actions or declare themselves
willing to commit such or if they accept any such offer. Or, if they
get reliable information about such an action or plan at a time when
danger still can be averted and fail to report it in time to the
authorities or to the threatened person;
_5._ If they are found in illegal possession of a firearm, of
a hand grenade, of a weapon for stabbing or hitting, of explosives,
munitions, or other war equipment. Also, if they receive reliable
information about a Pole or Jew being in illegal possession of such
things and fail to report this fact without delay to the authorities.
II
Poles and Jews will also be punished if they violate the German penal
laws or if they commit an action which deserves punishment according
to the basic principles of German penal law, in accordance with
the requirements of national existence in the Incorporated Eastern
Territories.
III
(1) Punishment will be meted out to Poles and Jews in the form of
prison terms, fines, or confiscation of property. Prison terms will be
meted out in the form of prison camp terms ranging from 3 months up
to 10 years. In serious cases prison terms will consist of aggravated
prison camp terms ranging from 2 to 15 years.
(2) The death penalty will be imposed whenever the law threatens such
punishment. Also in cases where the law does not provide for the
death sentence, this penalty will be imposed, if the committed action
testifies to an exceptionally vicious character or if for other reasons
the crime is a very serious one. In such cases the death penalty will
be permissible also in the case of juvenile criminals.
(3) A lesser punishment than the minimum term of a penalty as
prescribed by the German penal code and any degree of punishment
mandatorily prescribed are not to be imposed except in cases where
the crime is directed exclusively against the ethnic group of the
perpetrator himself.
(4) _Any fine which cannot be collected will be replaced by a prison
camp term ranging from 1 week to 1 year._
2. _Penal Procedure_
IV
The public prosecutor will prosecute crimes committed by Poles and
Jews, the punishment of which he thinks necessary in the public
interest.
V
(1) Poles and Jews are to be judged by the Special Court or by the
district judge.
(2) The public prosecutor is authorized to bring about indictment in
all matters before the Special Court. He may file a suit before the
district judge if no severer punishment than 5 years prison camp or 3
years aggravated prison camp is to be expected.
(3) The competency of the People’s Court remains untouched.
VI
(1) Each sentence has to be executed immediately. The public
prosecutor, however, may appeal to the Oberlandesgericht from sentences
passed by the district judge. The period set for motions in arrest of
judgment is 2 weeks.
(2) Also, the public prosecutor alone is entitled to the right of
complaining. Complaints are decided upon by the Oberlandesgericht.
VII
Poles and Jews cannot refuse German judges as being prejudiced.
VIII
(1) Arrest and preliminary custody are always permissible if there is a
strong suspicion of the accused having committed the crime.
(2) In the course of the preliminary proceedings the public prosecutor
also may order arrest and the use of other permissible means of
coercion.
IX
Poles and Jews serving as witnesses do not take the oath during
proceedings. To all untrue, unsworn evidence presented in court
regulations regarding perjury and unwittingly false oath are to be
applied, according to their sense, to false depositions in court not
made under oath.
X
(1) The reopening of the proceedings can only be ordered by the public
prosecutor. Request for reopening of the proceedings contrary to a
sentence passed by the Special Court are decided upon by the latter.
(2) The nullity plea is up to the public prosecutor, it is decided upon
by the Oberlandesgericht.
XI
Poles and Jews neither can file private suits nor bring about action as
coplaintiffs.
XII
The proceedings are conducted by court and public prosecutor on the
basis of the German law for penal procedure in full accordance with
their sense of duty. They may deviate from the regulations given in the
law about the constitution of courts and in the legal principles for
Reich penal proceedings, in all cases where it seems practical for the
carrying through of the proceedings rapidly and energetically.
3. _Civilian Court Martial Proceedings_
XIII
As far as the Incorporated Eastern Territories are concerned, the
Reichsstatthalter (Oberpraesident), with the consent of the Reich
Minister of the Interior and the Reich Minister of Justice, for the
area under his jurisdiction or single parts of it, may order that
Poles and Jews be sentenced, until further notice, by a civilian court
martial. This will take place in cases of serious violence committed
against Germans as well as on account of other crimes which seriously
endanger the German construction work.
As sentence, sentence of death will be imposed by the civilian court
martial. The civilian court martial may also refrain from punishment
and may instead pronounce transfer to the Secret State Police.
All details regarding the members of the civilian courts martial
and their procedure will be settled by the Reichsstatthalter
(Oberpraesident), with the consent of the Reich Minister of the
Interior.
4. _Extent of the Area of Jurisdiction_
XIV
(1) The regulations I to IV of this ordinance will equally affect Poles
and Jews, who had their place of residence, or permanent abode, within
the territory of the former Polish state on 1 September 1939, and who
have committed the crime within any other territory of the German Reich
outside the Incorporated Eastern Territories.
(2) In addition, the court of the place of residence or abode at the
respective time, is locally competent. For that court the regulations,
given under V-XII, also apply.
(3) Paragraphs 1 and 2 are not applicable to crimes which are sentenced
by courts of the Government General.
5. _Concluding Regulations_
XV
Poles in the sense of the ordinance are all proteges and stateless
persons who belong to the Polish racial community.
XVI
Article II of the ordinance of 6 June 1940,[333] concerning the
introduction of German penal law into the Incorporated Eastern
Territories, (Reich Law Gazette I, p. 844) does not apply any more to
Poles and Jews.
XVII
The Reich Minister of Justice, in full accord with the Reich Minister
of the Interior, is authorized to issue the legal and administrative
instructions necessary for the carrying through and supplementation
of this ordinance. Dubious questions, regarding the administrative
procedure, are to be decided by him.
XVIII
This decree comes into force on the fourteenth day after its
publication.
Berlin, the....................1941
The Chairman of the Ministerial Council for the Defense of the
Reich
The Plenipotentiary General for the Administration of the Reich
The Reich Minister and Chief of the Reich Chancellery
TRANSLATION OF DOCUMENT NG-130
PROSECUTION EXHIBIT 200
FILE NOTE OF THE REICH CHANCELLERY, 22 APRIL 1941, CONCERNING
SCHLEGELBERGER’S DRAFT OF A PROPOSED DECREE ON PENAL LAW FOR POLES AND
JEWS IN THE INCORPORATED EASTERN TERRITORIES
Berlin, 22 April 1941
Reich Chancellery 5850 B
Subject: Penal Law for Poles and Jews in the Incorporated
Eastern Territories
1. _Note_--The Minister of Justice transmits a draft of a decree
of the ministerial council on criminal law applicable to Poles and Jews
in the Incorporated Eastern Territories and in the city of Danzig.[334]
Through the decree of 6 June 1940 the German criminal law has been
introduced in the eastern territories to its fullest extent. On 20
November 1940 the Fuehrer’s deputy, in a detailed statement, took
the position that this was a mistake, in as much as the Poles would
thereby be placed under the German criminal law. The Fuehrer’s deputy
demanded that a special criminal law and a special criminal procedure
be provided for Poland. The particulars are contained in the note of 26
November 1940.
The proposals, contained in the draft of the decree of the Minister of
Justice and explained in the letter accompanying it, are far-reaching
in compliance with the wishes of the Fuehrer’s deputy.[335] 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. (Instead of imprisonment in jail or in penitentiary--prison camps
and special prison camps.) Beside this special criminal law, in a
subsidiary way, the German criminal law is applicable. (II.) Provisions
of criminal law which might be used to obstruct the procedure have been
eliminated (the opportunity of the defendant for an appeal, compulsory
indictment, the challenge of a judge, compare also art. XII, S. 2). The
Minister of Justice differs only in two points from the suggestions of
the Fuehrer’s deputy--
_a._ The Fuehrer’s deputy considered it more appropriate to
authorize the Reich governors [Reichsstatthalter] (and therefore also
the two provincial presidents) to introduce the special criminal law,
whereas the Minister of Justice provides for its introduction by a
Reich decree.
_b._ The Fuehrer’s deputy considers the introduction of corporal
punishment--the Minister of Justice declines to do so. The Minister
of Justice intends to introduce this draft and have it passed by the
ministerial council. Under Secretary Schlegelberger desires to discuss
this matter first with the Reich Minister and would be pleased if the
Reich Minister would secure the Fuehrer’s decision concerning the
principal features of the intended regulation.
[Illegible handwriting]
[Initial] F [Ficker]
[Stamps] resubmitted office 3/5
2. Submitted to the Reich Minister.
[Initial] L [Lammers]
25 April
This matter should be first discussed with Under Secretary
Schlegelberger, [Handwritten] who would be ready to come to [Hitler’s]
headquarters. On information of Ministerial Counsellor Schaefer,
(Reich Ministry of Justice), Under Secretary Schlegelberger will at
this meeting also have some information on the Governor General’s
attitude.[336]
[Initial] L [Lammers] 3 May
[Stamp] Resubmitted
Office 5/5
[Initial] L [Lammers] 12 May
[Stamp] Resubmitted
Office 12/5
1. A report to the Fuehrer is not to be considered. First of all a
discussion with Under Secretary Schlegelberger is necessary.
[Initial] L [Lammers] 13 May
[Stamp] Resubmitted
Office 20/5/41
[Initial] L. [Lammers] 22 May
In the meantime an opinion of the Reich Leader H [Himmler] has been
received.
TRANSLATION OF DOCUMENT NG-136
PROSECUTION EXHIBIT 345
MEMORANDUMS OF THE REICH CHANCELLERY, 27 MAY 1941, CONCERNING CRIMINAL
LAW TO BE INSTITUTED IN THE INCORPORATED EASTERN TERRITORIES, INCLUDING
COPIES OF LETTERS TO DEFENDANT SCHLEGELBERGER, BORMANN, AND HIMMLER
[Handwritten] see Rk. 8621 B.
To Rk. 7592 B, 7760 B
Fuehrer Headquarters, 27 May 1941
After the report to the Reich Minister
Subject: Civilian court martial and right of pardon in the Warthegau.
Administration of criminal law in the Incorporated
Eastern Territories
1. Remarks:
[Handwritten marginal note.] To Rk 7592 B:
It may be pointed out in completion that a ruling in regard to the
Warthegau will bring about not only a corresponding ruling for the Gau
Danzig-West Prussian but also for the new territories of East Prussia
and Silesia. Thus, for example, in the last named territories the
right of pardon for capital crimes also must be transferred to the
Provincial president.
[Handwritten marginal notes.]
Rk 7760 B1b
blue[337]
In the meantime a letter from the Reich Leader SS (signed Heydrich) on
this subject has been received here. The Reich Leader SS agrees to the
special penal code for Poles in material matters--as provided for in
the draft of the decrees submitted by the Minister of Justice--but in
addition he asks for civilian court martial under police jurisdiction
and requests that this be presented to the Fuehrer when the Reich
Minister makes his intended report.
[Handwritten marginal notes.]
pink
yellow
The introduction of civilian courts martial in the Incorporated
Eastern Territories is an old desire of the Reich Leader SS and was
proposed in the draft of a decree of the ministerial council of the
General Plenipotentiary for the Reich administration, dated 21 February
1940--compare Rk 3215 B-40--; see note of 27 February 1940. The
introduction was rejected at the time on the basis of objections made
by the Reich Marshal to civilian courts martial--compare Rk. 5026 B of
21 March 1940.
[Handwritten marginal note.]
Justice 3
(Copy number 2) (copy number 2)
(to Rk 7411 h40 letter 13) (Justice 12)
pale violet
The Fuehrer’s decision corresponds to the desire of the Reich Leader
SS as far as the Warthegau is concerned in the meantime. It is not
considered advisable to report this to the Reich Leader SS unless the
minister in charge has been notified of the Fuehrer’s decision. The
Reich Leader SS further requests a copy of the comments of the Minister
of Justice dated 17 April 1941--Rk. 5850 B.[338] He should be referred
to the Minister of Justice concerning this request.
[Handwritten marginal note.] pale violet
[Initial] F [Ficker]
The Reich Minister and Chief of the Reich Chancellery
Fuehrer Headquarters, 27 May 1941
Rk. 7760B
[Handwritten notes]
see Rk 8621 B
No. 934 29/5
2/4 written Ho
2/3 read Ho Hi/
4/ forwarded Ho 28/5
2/3 forward 29.5. Km
to 2 m. 1 photo copy of Rk 7760 B
to 3 m. 1 copy of 2 and
1 photo copy of Rk 7760 B
_Urgent!_
2. To the Reich Minister of Justice.
(Copy for 2.)
Subject: Administration of criminal law in the Incorporated
Eastern Territories
In reference to your letter of 17 April 1941
--9170 Eastern Territory 2-II a-2-996/41
[Handwritten marginal note.] pale violet
The Gauleiter and Reichsstatthalter Greiser reported to the Fuehrer
that an increasing number of acts of sabotage were committed in his Gau
by Poles. In the Landkreis Lódz it even happened a few days ago that
while the Reichsstatthalter was speaking in an old Swabian settlement,
a German policeman was stoned to death in a neighboring village.
In this case the Reichsstatthalter, according to his report to the
Fuehrer, gave orders that not only the culprits but 12 hostages as
well should be executed on the spot and under the eyes of the entire
village population, who were assembled at the spot. In view of these
sabotage acts the Reichsstatthalter asked the Fuehrer for authority to
reestablish civilian courts martial. He proposed to appoint the local
representative of authority as president, with police officer and a
security police leader as members of the court. No sentences other than
death or concentration camp are to be given by these civilian courts
martial. There must be no possibility of appeal. The Fuehrer decided
that Gauleiter and Reichsstatthalter Greiser be given authority as
requested to set up the civilian courts martial which he had proposed.
The Reichsstatthalter further reported to the Fuehrer that he had
asked you to delegate to him the right of pardon in regard to Poles
punished by the courts. The Fuehrer has decided that this desire of the
Reichsstatthalter is also to be complied with.
I beg to inform you of these decisions taken by the Fuehrer and to ask
you to take the necessary implementing steps without delay. I leave
it to you to consider whether it is advisable to include this ruling
on the basis of the above-mentioned decisions of the Fuehrer, in
whole or in part, in the draft of the decree which you have prepared
concerning the administration of criminal law against the Poles and
Jews in the Incorporated Eastern Territories and in the territory of
the former Free City of Danzig. I ask you to report to the Fuehrer, for
my attention, on the measure you have taken. [Handwritten] as soon as
possible
A photo copy of a letter received here from the Reich Leader SS and
Chief of the German Police in the Ministry of the Interior is enclosed
for your information.[339] May I leave it to your discretion to send
to the Reich Leader SS and Chief of the German Police a copy of your
comments, as requested in the last sentence of the letter.
[In margin] Bzf. Photo copy
of Rk. 7760 B
(Name of the Reich Minister)
3. To Reichsleiter Martin Bormann, at present Obersalzberg.
Subject: Administration of criminal law in the Incorporated
Eastern Territories
In answer to the letter of 24 May 1941--Bo/Si--.
Esteemed Mr. Bormann!
For your information I beg to submit herewith a copy of my letter
of today’s date to the Reich Minister of Justice, concerning the
establishment of civilian courts martial and the transference of the
right of appeal in the Reichsgau Wartheland.
_Bzf. copy of_
2.
also photo of
Rk 7760 B
Heil Hitler!
Respectfully
(Name of the Reich Minister)
4. To the Reich Leader SS and Chief of the German Police, Reich
Ministry of the Interior,
Berlin SW 11
Prinz-Albrecht-Strasse 8
Subject: Administration of criminal law in the Incorporated
Eastern Territories
Reference: Letter of 16 May 1941-S-II A 2 (new) No. 127/41-173-1
I have forwarded a photo copy of your letter of 16 May 1941 to the
Reich Minister of Justice for his information. I have asked him to
forward to you a copy of his comments as requested in the last sentence
of your letter.
(name of the Reich Minister)
5. After sending it off
Min. Dir. Kritzinger for information.
6. Follow up after 1 month.
[Initial] L [Lammers]
(name of the Reich Minister)
[Initial] F [Ficker]
27 May
PARTIAL TRANSLATION OF DOCUMENT NG-1615
PROSECUTION EXHIBIT 521
DECREE OF 31 MAY 1941 CONCERNING THE INTRODUCTION OF
THE NUERNBERG RACIAL LAWS IN THE INCORPORATED
EASTERN TERRITORIES
1941 REICHSGESETZBLATT, PART I, PAGE 297
By virtue of article 8 of the Decree of the Fuehrer and Reich
Chancellor, of 8 October 1939 (Reichsgesetzblatt I, p. 2042), it is
hereby ordered:
Article 1
In the Incorporated Eastern Territories the following are applicable:
(1) The Reich Citizenship Law of 15 September 1935[340]
(Reichsgesetzblatt I, p. 1146).
(2) Article 2, paragraph 2; article 4, paragraphs 1 and 3; article 5;
article 6, paragraph 1; and article 7 of the first amendment of the
Reich Citizenship Law of 14 November 1935 (Reichsgesetzblatt I, p.
1333).
* * * * * * *
Article 3
In the Incorporated Eastern Territories the Law for the Protection
of German Blood and German Honor of 15 September 1935[341]
(Reichsgesetzblatt I, p. 1146), and the first decree concerning the
execution of this law of 14 November 1935 (Reichsgesetzblatt I, p.
1334), as well as the decree supplementing the first executive decree
for the Law for the Protection of German Blood, of 16 February 1940
(Reichsgesetzblatt I, p. 394) shall be applicable.
Article 4
(1) This decree shall take effect 1 week after promulgation.
(2) Part I, article 7 of the Decree concerning the introduction of the
German Criminal Law in the Incorporated Eastern Territories, of 6 June
1940[342] (Reichsgesetzblatt I, p. 844), shall be applied to violations
of the provisions for the Protection of German Blood and German Honor.
Berlin, 31 May 1941
The Reich Minister of the Interior
As deputy: DR. STUCKART[343]
The Chief of the Party Chancellery
M. BORMANN
The Acting Reich Minister of Justice
DR. SCHLEGELBERGER[344]
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
SECOND EXECUTIVE DECREE, 31 MAY 1941, FOR THE EXECUTION OF
THE LAW FOR THE PROTECTION OF GERMAN BLOOD AND HONOR
1941 REICHSGESETZBLATT, PART I, PAGE 297
By virtue of article 6 of the Law for the Protection of German Blood
and German Honor of 15 September 1935 (Reichsgesetzblatt I, 1935, p.
1146), the following is hereby decreed:
Article 1
The protection afforded to German blood or to blood racially related
to German blood by the Law for the Protection of German Blood and
German Honor of 15 September 1935 (Reichsgesetzblatt I, p. 1146), and
its first executive decree of 14 November 1935 (Reichsgesetzblatt
I, p. 1334), as amended by the supplementing decree of 16 February
1940 (Reichsgesetzblatt I, p. 394), shall not extend to former Polish
nationals, unless they have acquired German nationality or have been
entered in the list of German nationals [deutsche Volksliste] by virtue
of the decree of the Fuehrer and Reich Chancellor concerning the
organization and administration of the eastern territories of 8 October
1939 (Reichsgesetzblatt I, p. 2042).
Article 2
(1) This decree shall be applicable in the Incorporated Eastern
Territories, too.
(2) It shall take effect one day after promulgation.
Berlin, 31 May 1941.
The Acting Reich Minister of the Interior
As deputy: DR. STUCKART
The Chief of the Party Chancellery
M. BORMANN
The Acting Reich Minister of Justice
DR. SCHLEGELBERGER
TRANSLATION OF DOCUMENT NG-505
PROSECUTION EXHIBIT 71
CIRCULAR LETTER FROM DEFENDANT SCHLEGELBERGER TO THE PRESIDENTS OF THE
COURTS OF APPEAL AND ATTORNEYS GENERAL, 24 JULY 1941, ENTITLED “MILD
SENTENCES AGAINST POLES”
The Reich Minister of Justice
9170 Eastern territories 2-III
4 1137.41
Berlin W 8, 24 July 1941
Wilhelmstrasse 65
1. To the Presidents of the Courts of Appeals and the Attorneys General
(with the exception of Prague).
2. Through the Reich Protector of Bohemia and Moravia to--
The Presidents of the Courts of Appeals and the Attorney General in
Prague.
Subject: Mild sentences against Poles
Attached: 1 compilation
8 additional copies for the Chief Public Prosecutors
Despite my constant allusions to this matter during conferences and
in individual instructions, I am time and again notified of sentences
by which Poles in the Reich proper are given entirely insufficient
prison sentences for sexual and other serious crimes. Such sentences
reveal an incomprehensibly lenient attitude toward the Polish nation
which confronts us with implacable enmity. They constitute a danger
to the security of the German people and justify the reproach that
the administration of criminal law has not proved adequate to the
necessities of war.
To make this point clear, the attachment lists a few of such
sentences against Polish criminals which have been changed by special
instructions or which I had to have altered by way of the nullity plea.
I want to express my firm expectation that the officials of the justice
administration will not fail to recognize the serious danger this
constitutes for our people; and, last but not least, for the stability
of the administration of criminal law. I, therefore, expect that from
now on measures will be taken against Polish criminals in the Reich
proper with all the necessary firmness and with the heaviest sentences
in accordance with article 4 of the decree against public enemies.[345]
Elements clearly criminal and sexual criminals of Polish nationality
must, as a rule, be punished by death. That the application of article
4 of the decree against public enemies is principally justified in
the case of crimes committed by Poles in the Reich proper has been
recognized by the Reich Supreme Court in its decision C 258. 41 of 19
June 1941 with the following explanations:
“If * * * it is noted that entire groups of culprits * * *
possess fewer inhibitions with regard to certain crimes than
the German people in general, the protection of law and order
demands greater watchfulness as to the resulting dangers.
The demand for retribution and the deterrent effect would be
seriously impaired if the administration of justice would grant
such culprits any right of obtaining mild penalties.
The established fact that the defendant, a Pole, sexually
assaulted a German girl should have caused * * * the court to
examine the question of whether or not the characteristics of
a crime, as defined in article 4 of the decree against public
enemies, were present. There is reason to assume that the
defendant in his assault on a juvenile female fellow worker made
use of the absence, caused by war conditions, of male workers
who might otherwise have been able to come to her aid, and
that the circumstances of his crime, in addition, are of such
reprehensible kind that they reveal a criminal possessing the
essential characteristics of a public enemy * * *.”
In addition to this, it must be considered that Poles are now entering
Germany only as a result of the wartime shortage of German labor and
that as a result of the decrease of police forces, likewise due to the
war, the necessary police supervision over Poles which would have been
possible under normal peacetime conditions is no longer guaranteed.
The Acting Minister
[Typed signature] DR. SCHLEGELBERGER[346]
Certified: [Signed] BIERWITH
Administrative Assistant
[Ministerialskanzleiobersekretaer]
[Stamp]
Ministry of Justice
Office of the Minister
-------------------------------+---------------+---------------------+--------------------------+------------------+-------------------------------
Tribunal handing down | | | | Sentence handed |
the sentence | Perpetrator | Crime | Penalty | down on | Remarks
-------------------------------+---------------+---------------------+--------------------------+------------------+-------------------------------
Jury at the district court of |Maziarz |Attempt to rape two |1 year, 3 months, of hard |23 September 1940 |Shot because of resistance
Bielefeld. | | German women. | labor, lunatic asylum. | | on 16 November 1940.
| | | | |
Penal chamber of the district |Wojcieck |Sexual crime |1 year of imprisonment. |21 October 1940 |Nullity plea, sentence was
court of Lueneburg. | | committed by | | | repealed and referred back
| | violence. | | | by Reich Supreme Court
| | | | | because section 4 of the
| | | | | decree against public enemies
| | | | | has not been applied.
| | | | |
Penal chamber of the district |Wojtas |Attempt to rape wife |1 year of imprisonment. |5 November 1940 |Shot because of resistance
court of Guestrow. | | of employer. | | | on 1 March 1941.
| | | | |
Penal chamber of the district |Czaika |Sexual crime against |2 years of hard labor. |20 December 1940 |Shot because of resistance
court of Prenzlau. | | a child. | | | on 10 March 1941.
| | | | |
Penal chamber of the district |Wojitarowicz |Sexual offense |2 years of hard labor. |17 January 1941 |Shot because of resistance
court of Rostock. | | against a child. | | | on 17 February 1941.
| | | | |
Penal chamber of the district |Chlabicz |Numerous burglaries |10 years of hard labor, |5 February 1941 |Transfer to Gestapo has
court of Cottbus. | | committed during | security detention. | | been ordered.
| | the black-out after| | |
| | having escaped from| | |
| | the penitentiary. | | |
| | | | |
Jury at the district court of |Dziubczyk |Rape. |6 years of hard labor. |28 February 1941 |Shot because of resistance
Munich. | | | | | on 8 March 1941.
| | | | |
Jury at the district court of |Franz |Sexual offense |8 years of hard labor. |4 April 1941 |Transfer to Gestapo has
Bielefeld. | Golembiowski | against a child. | | | been ordered.
| | | | |
Penal chamber of the district |Aplas |Attempt to rape. |1 year and 6 months of |16 July 1940 |Transfer to Gestapo has
court of Stargard | | | hard labor. | | been ordered.
(Pomerania). | | | | |
-------------------------------+---------------+---------------------+--------------------------+------------------+-------------------------------
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
DECREE OF 4 DECEMBER 1941 CONCERNING THE ADMINISTRATION
OF PENAL JUSTICE AGAINST POLES AND JEWS IN THE
INCORPORATED EASTERN TERRITORIES[347]
1941 REICHSGESETZBLATT, PART I, PAGE 759
The Ministerial Council for the Defense of the Reich
herewith decrees:
1. _Substantive Criminal Law_
I
(1) Poles and Jews in the Incorporated Eastern Territories are to
conduct themselves in conformity with the German laws and with the
regulations introduced for them by the German authorities. They are to
abstain from any conduct liable to prejudice the sovereignty of the
German Reich or the prestige of the German people.
(2) The death penalty shall be imposed on any Pole or Jew if he commits
an act of violence against a German on account of his membership in the
German ethnic community.
(3) A Pole or Jew shall be sentenced to death, or in less serious cases
to imprisonment, if he manifests anti-German sentiments by malicious
or inciting activities particularly by making anti-German utterances,
or by removing or defacing official notices of German authorities or
agencies, or if he, by his conduct, lowers or prejudices the prestige
or the well-being of the German Reich or the German people.
(4) The death penalty or, in less serious cases, imprisonment, shall be
imposed on any Pole or Jew--
_1._ If he commits any act of violence against a member of the
German armed forces or its auxiliaries, of the German police force or
its auxiliaries, of the Reich labor service, of any German authority or
agency or of an organization of the NSDAP;
_2._ If he purposely damages installations of the German
authorities or agencies, objects used by them in performance of their
duties, or objects of public utility;
_3._ If he solicits or incites another person to disobey any
decree or regulation issued by the German authorities;
_4._ If he conspires to commit an act punishable under paragraphs (2),
(3), and (4), subparagraphs _1_ through _3_, or if he enters into
serious negotiations about committing such an act, or if he offers to
commit such an act, or accepts such an offer, or if he obtains credible
information of such act, or of the intention of committing it, and
fails to notify the authorities or any person threatened thereby at a
time when danger can still be averted; and
_5._ If he is found to be in unlawful possession of a firearm, a
hand grenade, or any weapon for stabbing or hitting, of explosives,
ammunition or other implements of war, or if he has credible
information that a Pole or a Jew is in unlawful possession of such an
object, and fails to notify the authorities forthwith.
II
Punishment shall also be imposed on Poles or Jews if they act
contrary to German criminal law or commit any act for which they
deserve punishment in accordance with the fundamental principles of
German criminal law and in view of the interests of the State in the
Incorporated Eastern Territories.
III
(1) Penalties provided for Poles and Jews are--imprisonment, fine, or
confiscation of property. The term of imprisonment is to be not less
than 3 months and not more than 10 years in a penal camp; for more
serious offenses, imprisonment consists of 2 to 15 years in a penal
camp in which a more severe regimen is enforced.
(2) The death sentence shall be imposed in all cases where it is
prescribed by the law. Moreover, in those cases where the law does not
provide for the death sentence, it shall be imposed if the act shows
a particularly base attitude or is particularly serious for other
reasons; in these cases the death sentence may also be passed upon
juvenile offenders.
(3) The minimum penalty or a fixed penalty prescribed by German
criminal law cannot be reduced unless the criminal act is directed
against the offender’s own people exclusively.
(4) If a fine cannot be recovered, it shall be substituted by
imprisonment in a penal camp from 1 week to 1 year.
2. _Criminal Procedure_
IV
The public prosecutor shall prosecute a Pole or a Jew if he considers
that punishment is in the public interest.
V
(1) Poles and Jews shall be tried by a Special Court or by the local
court.
(2) The public prosecutor can file the indictment with a Special Court
in all cases. He can file the indictment with the local court if the
punishment to be imposed is not likely to be heavier than 5 years in a
penal camp, or 3 years in a more rigorous penal camp.
(3) The jurisdiction of the People’s Court remains unaffected.
VI
(1) Every sentence will be carried out without delay. The public
prosecutor may, however, appeal from the sentence of the local court to
the court of appeal. The appeal has to be lodged within 2 weeks.
(2) The right to lodge complaints is also reserved exclusively to the
public prosecutor. Complaints will be decided upon by the court of
appeal.
VII
Poles and Jews cannot challenge a German judge on account of alleged
partiality.
VIII
(1) Arrest and temporary detention are allowed whenever there are good
grounds to suspect that a punishable act has been committed.
(2) During the preliminary investigations, the public prosecutor may
also order arrest and any other coercive measures permissible.
IX
Poles and Jews are not sworn in as witnesses in criminal proceedings.
If the unsworn deposition made by them before the court is false, the
provisions as prescribed for perjury and false sworn statements shall
be applied accordingly.
X
(1) Only the public prosecutor may apply for the reopening of
proceedings. In a case tried before a Special Court, the decision on an
application for the reopening of the proceedings rests with this court.
(2) The right to lodge a nullity plea rests with the attorney general.
The decision on the plea rests with the court of appeal.
XI
Poles and Jews neither can file private suits nor bring about action as
coplaintiffs.
XII
The court and the public prosecutor shall conduct proceedings within
their discretion according to the principles of the German Law of
Criminal Procedure. They may, however, dispense with the provisions of
the Judicature Act and the Law of Criminal Procedure, whenever this may
be expedient for the rapid and more efficient conduct of proceedings.
3. _Civilian Court Martial Proceedings_
XIII
(1) Subject to the consent of the Reich Minister of the Interior and
the Reich Minister of Justice, the Reich governor (or provincial
governor) may, until further notice, enforce martial law in the
Incorporated Eastern Territories, either in the whole area under his
jurisdiction or in parts thereof, upon Poles and Jews guilty of grave
excesses against Germans or of other punishable acts which seriously
endanger the German work of reconstruction.
(2) The courts established under martial law impose the death sentence.
They may, however, dispense with punishment and refer the case to the
Secret State Police (Gestapo).
(3) Subject to the consent of the Reich Minister of the Interior, the
constitution and procedure of the courts established under martial law
shall be regulated by the Reich governor.
4. _Extent of Application of this Decree_
XIV
(1) The provisions contained in sections I-IV of this decree apply also
to those Poles and Jews who, on 1 September 1939, were domiciled or had
their residence within the territory of the former Polish state, and
who committed the punishable act in any part of the German Reich other
than the Incorporated Eastern Territories.
(2) The case may also be tried by the court within whose jurisdiction
the former domicile or residence of the perpetrator is situated.
Sections V-XII apply accordingly.
(3) Paragraphs 1 and 2 do not apply to punishable acts tried by the
courts in the Government General.
5. _Concluding Regulations_
XV
Within the meaning of this decree, the term “Poles” includes protected
and stateless persons who belong to the Polish racial community.
XVI
Article II of the decree of 6 June 1940, concerning the introduction
of German Criminal Law in the Incorporated Eastern Territories
(Reichsgesetzblatt I, p. 844) no longer applies to Poles and Jews.[348]
XVII
The Reich Minister of Justice is authorized to issue rules and
administrative regulations concerning the execution and implementation
of this decree and to decide in all cases of doubt, in agreement with
the Reich Minister of the Interior.
XVIII
This decree shall come into force on the fourteenth day after its
promulgation.
Berlin, 4 December 1941
The President of the Ministerial Council
for the Defense of the Reich
REICH MARSHAL GOERING
The Plenipotentiary for the Administration of the Reich
FRICK
The Reich Minister and Chief of the Reich Chancellery
DR. LAMMERS
SCHLEGELBERGER DOCUMENT 61
SCHLEGELBERGER DEFENSE EXHIBIT 27
EXTRACTS FROM AN ARTICLE BY DR. ROLAND FREISLER, UNDER SECRETARY IN
THE REICH MINISTRY OF JUSTICE, JANUARY 1942, CONCERNING CRIMINAL
JURISDICTION FOR POLES[349]
The German Criminal Code for Poles by Dr. jur. Roland Freisler, State
Secretary of the Reich Ministry of Justice, member of the Presidency of
the Academy for German Law.
* * * * * * *
II
The objective Criminal Jurisdiction for Poles
* * * * * * *
It is not contradictory to justice if criminal jurisdiction for
Poles is different from the German criminal jurisdiction. Even if
_one_ people within a state can be subject to _one_ [system
of] law only, it is yet quite possible that for another nationality
within the same state another [system of] law is applicable. Whether
this condition should be brought to bear must be determined by the
necessities of the State. It is essential of course that the other
national group can perceive the law in force for its members in order
to be able to abide by it.
For there must be a standard whereby it can regulate its behavior. By
this standard the conduct of its nationals can be judged fairly. There
is nothing contrary to justice if the one criminal law in its general
aspect is milder, the other, viewed as a whole is severer. After all
there is justice in a sphere of severity as well as in a sphere of
leniency.
If the administration of criminal justice for Poles devotes exactly
the same care to the investigation of the facts of a case, as does
the administration of criminal justice for Germans, viz, avoiding
everything which even very remotely might resemble a judgment on
suspicion, if, besides, it judges the established facts just as
conscientiously according to the law applicable to Poles, as it judges
the established facts in the case of Germans according to the general
German penal law, and if, finally, it endeavors to render the right
judgment in the award of punishment within the compass of the penal law
applicable for Poles, as within the compass of the penalties pursuant
to the general German penal law for Germans, the criminal jurisdiction
for Poles is just, regardless of the different evaluation of actions
of Germans and Poles, which might be necessary in many cases. The
political task of the administration of criminal jurisdiction is not at
all incompatible with justice.
The directives for arriving at a just decision, especially in the case
of the law pursuant to Number II, in the criminal jurisdiction for
Poles are deprived by viewing the German people and Reich as a whole in
regard to the necessities of the State, the judicial comprehension of
which is given by the political aim of German work in the Incorporated
Eastern Territories. Looking at the individual Poles who have been
committed for trial it follows from the general, legally established
subordination law to which he is subject pursuant to Number I, and
which should dominate and guide his whole conduct. By considering both
points, i.e., State necessity and the duty of subordination, no divided
result can be arrived at in any individual case, because the duty of
subordination of the Pole in the Incorporated Eastern Territories is
a State necessity, and because on the other hand the extent of this
duty of subordination in itself is determined by the aim of the German
construction work, i.e., by State necessity.
The German administration of criminal jurisdiction for Poles exercised
in the fulfillment of the Polish task of the German folkdom in the
Incorporated Eastern Territories will be characterized by justice just
as it is in every other German administration of justice.
* * * * * * *
The penal code for Poles has only one form of detention--the punitive
camp. Therefore, this takes the place of confinement in a fortress,
imprisonment, penal servitude as provided by the general German penal
code. In the penal registers the punitive camp term will be recorded as
“penitentiary” [Zuchthaus]. This does not mean, however, that it will
be like penitentiary [service] in every respect. Thus not every term
in a punitive camp will be regarded as “penitentiary”; only a term of
increased severity in a punitive camp in the meaning of the regulations
for the noninclusion of the period of detention in custody in the
term of imprisonment for the duration of the war, will be regarded as
“penitentiary.” However, where no special ruling is applicable, it will
have to be concluded from the recording of the term in a punitive camp
in the penal register that its legal status is that of penitentiary
[service], as far as this can be applied to the State legal status of a
Pole.
The judge may also pronounce a sentence of detention of increased
severity in a punitive camp. In doing so, however, he does not choose
another method of punishment. Legally the sentence of increased
severity term in a punitive camp has to be considered as being the same
as pronouncement of punishment of increased severity in a legal system,
which allows the judge the possibility of sentences of increased
severity.
* * * * * * *
From the much increased minimum duration of terms of increased severity
in a punitive camp (2 years) and from its increased limit (15 years) it
follows that the judge is expected to make use of it in serious cases,
which is also especially emphasized in the decree.
In case of death sentences the same methods of execution are in force,
as applied by the German Criminal (Penal) Code.
By adding fines, confiscation of property, imprisonment, and capital
punishment the penal code for Poles intends to complete the punitive
methods applicable to Poles.
III
Law of procedure against Poles
d. Preliminary proceedings.
* * * * * * *
By the general principle of every German administration of criminal
jurisdiction, viz, that it must serve to establish actual facts and
their true judgment--a principle which is adhered to without exception
and unalterably the freedom of judgment in the arrangement of the
preliminary proceedings finds its unchangeable limit (the same has to
be said with regard to the trial). From this it follows as a matter of
course that the public prosecutor in the preliminary proceeding will
have to examine all evidence, extenuating as well as aggravating, and
investigate it.
It is just as self-evident that in the place of preliminary
proceedings by the public prosecutor and the decision of the public
prosecutor concerning the indictment and abatement there can be no
Klageerzwingungsverfahren[350] on the part of a private person in
consideration of the principle of liberty of decision with regard
to prosecution or nonprosecution, just as prosecuting authority
no private person can appear as prosecutor, replacing the public
prosecutor neither independently nor as coprosecutor; consequently
the Pole can be neither plaintiff nor coplaintiff. In order to avoid
any misinterpretation in this direction this has been expressly
stated already in the decree establishing a penal code. In the
decree establishing the penal code for Poles it is stated expressly:
“The public prosecutor prosecutes crimes of Poles and Jews * * *.”
(Number IV) “Poles and Jews can take neither civil action nor act
as coplaintiffs.” (Number XI). From the first of these two legal
provisions it follows also that against the Pole no civil action nor
action as a coplaintiff can be taken; the public prosecutor alone is
competent to prosecute.
If the liberty of decision in determining the procedure as well as
the main trial is stressed time and again, on the other hand it must
nevertheless be emphasized that the establishment of the true facts
of the case is the purport and the rendering of a just verdict the
aim of every criminal proceeding against Poles. Therefore, nothing
may be disregarded which may serve to establish the truth and to
arrive at a just verdict. For this it is essential that the accused
is heard,--as long as he does not use this possibility granted him
for propaganda--and that he can defend himself in connection with
the accusation, that he may offer evidence of any kind, that he can
express himself with regard to the findings of the evidence heard,
and that he may have the last word. In cases where difficulties
arise from difference of language it is of course essential that the
possibility of understanding is secured, if necessary with the help of
an interpreter. The judge and all the officials of the administration
of justice always and without exception will speak German. Likewise
all evidence, as far as it is not declared with certainty as being
unsuitable right away, must be fully investigated.
The giving of the opportunity to the public prosecutor and the judge to
use their own discretion in the arrangement of proceedings was possible
only because it may be assumed that no German public prosecutor and
no German judge in any proceeding conducted by him will ignore these
principles.
Should that happen, however, in an isolated case, it is to be
expected that the public prosecutor will appeal against a decision
arrived at during a trial exhibiting such fundamental defects with
the legal measures at his disposal. The senates of the four district
courts of appeal, which are the highest authority in Polish matters,
guarantee that they display in these cases by the way in which they
deal with appeals that such high principles may not be left out of
consideration and that they express this clearly in the reasons given
for the verdict, although this is not absolutely necessary for the
establishment of the sentence itself, because it is not a revised
judgment but a sentence on appeal * * *.
f. Execution of a sentence.
* * * * * * *
Even if every sentence can be carried out immediately nevertheless it
is self-evident that the authority carrying out sentences will not
proceed to the execution if in a specific case the possibility exists
that the condemning verdict can undergo a substantial change by legal
measures to the advantage of the condemned person or even be changed
into acquittal. It is completely self-evident that the severest penalty
will not be put into effect before it has the force of law; this is
also impossible because the decision of the supreme authority as to the
execution or nonexecution can only be brought about after the sentence
becomes valid. It has also to be expected that the executing authority
will stay the execution of the penalty if that authority or the public
prosecutor--perhaps because of new evidence--later arrives at the
conclusion that the condemning sentence cannot be upheld, or at least
reckons with the not too distant possibility of such a result of an
appeal or of a retrial.
The decree contains no specification that the court of appeal, or
court of retrial, or its president can order a stay of execution of
a sentence. The legislator believed he could abstain from such a
specification, because the attorney general will see to it in the way
of administration that such a stay is brought about at the suggestion
of the president. It is not necessary that everything should be ordered
in the way of legislation that can be safeguarded in the way of
administration.
g. Legal means--The public prosecutor can “lodge an appeal against
sentences passed by the judge of a local court with the district court
of appeal. The period of time within which an appeal is to be lodged
is 2 weeks.” (Number VI) The extension of the time limit is explained
not only by the poor rail and postal communications which are sometimes
even worse in the Incorporated Eastern Territories than in other parts
of the Reich. Its explanation is to be found above all in the fact that
it is also the duty of the public prosecutor to examine whether an
appeal is to be lodged on behalf of the condemned person. The condemned
person will quite often suggest this to him. The public prosecutor will
then require a certain amount of time in order to examine whether the
new statements and evidence, which the defendant has perhaps given him
when he suggested such an appeal. For that the summary examination of
evidence offered will often be necessary and will take a few days. Just
when the public prosecutor is confronted with the question whether he
is to lodge an appeal on behalf of the condemned person he will do well
to hold himself more than ever aloof from the bad custom of lodging an
appeal “as a precaution.” For in this case he would raise false hopes
and in addition, even if he does not subsequently maintain the appeal,
would in the eyes of the condemned divest the judgment of some of its
authority. He must therefore have time for a summary examination. From
this resulted the extension of the time limit for the lodging of an
appeal.
TRANSLATION OF DOCUMENT NG-665
PROSECUTION EXHIBIT 346
SUPPLEMENTARY DECREE, 31 JANUARY 1942, CONCERNING THE
ADMINISTRATION OF PENAL JUSTICE AGAINST POLES AND JEWS
IN THE INCORPORATED EASTERN TERRITORIES
1942 REICHSGESETZBLATT, PART I, PAGE 52
Pursuant to article XVII of the decree concerning the Administration
of Penal Justice against Poles and Jews in the Incorporated Eastern
Territories of 4 December 1941[351] (Reichsgesetzblatt Part I, page
759), the following is decreed:
Article I
Articles I to III of the decree of 4 December 1941 (Reichsgesetzblatt
I, p. 759) may be equally applied with the consent of the public
prosecutor to offenses committed before the decree came into force.
Article II
(1) The court may rule in every case that Poles and Jews be
interrogated by a commissioned or requested judge; article 251,
paragraph 2, of the Reich Code of Criminal Procedure and article 252,
paragraph 3, of the Austrian Code of Criminal Procedure will remain
unchanged.
(2) This regulation equally applies to Poles and Jews who, on 1
September 1939, resided or were abiding in the territory of the former
Polish State and who are interrogated as witnesses in other parts of
the German Reich.
Berlin, 31 January 1942
The Acting Reich Minister of Justice
DR. SCHLEGELBERGER
The Reich Minister of the Interior
As deputy: PFUNDNER
PARTIAL TRANSLATION OF DOCUMENT NG-1106
PROSECUTION EXHIBIT 462
EXTRACT FROM THE MINUTES OF A CONFERENCE BETWEEN DEFENDANT ROTHENBERGER
AND THREE JUDGES OF THE HAMBURG COURTS, 23 JANUARY 1942, CONCERNING THE
EXEMPTION OF DESTITUTE JEWS FROM COURT FEES
Notes on a discussion held on 23 January 1942
* * * * * * *
II. Present: Senator Dr. Rothenberger, Local Court Judge Dr.
Schwarz, Presiding Judge Korn of the District Court, Judge Dr.
F. Priess of the District Court of Appeal
[Marginal note] copy made out for: 3715-1b 1/17 a-c
extract
The senator [the defendant Rothenberger] reported that the question of
the Armenrecht[352] concerning Jews has come into the foreground again.
With the district court there were two cases pending. He requested that
contacts with the judges of the district court and of the local court
be taken up at once so that a uniform line is followed to the effect
that the Jews be denied the benefits of the Armenrecht. It would be
entirely out of the question that Jews be granted the benefits of the
Armenrecht subsequent to the present development. This would apply
especially to Jews who had been evacuated, but in his opinion also to
those who had not been evacuated. With regard to the matter it had to
be considered whether or not any material claims of the Jews could
still be answered in the affirmative. Concerning this question, it
might, however, be practical to maintain a certain reserve.
Presiding Judge Korn of the district court had raised certain
objections to the denial, because up to now it was lacking any legal
basis.
Hamburg, 27 January 1942
For information--1. To Councillor of the Local Court for information
and further action (with regard to II)
2. To High Judicial Inspector Bellair for further action 27 January 1942
[Illegible initials]
323-1b 2/1
TRANSLATION OF DOCUMENT NG-589
PROSECUTION EXHIBIT 372
UNDATED REPORT FROM THE DISTRICT COURT IN HAMBURG CONCERNING GRANTING
OF BENEFITS FOR DESTITUTE PERSONS TO A JEW, TOGETHER WITH TWO LETTERS
OF DEFENDANT ROTHENBERGER AND AN INTEROFFICE MEMORANDUM, 13 FEBRUARY-22
MAY 1942
Excerpts from the File Prenzlau against Behrens and Lundin--
2 0.84/41
The Jewish plaintiff Israel Prenzlau proposed that Armenrecht be
granted him in an intended lawsuit against Karl Behrens and Paul Lundin
in consideration of a claim which is supposed to have arisen from
the withdrawal of the Jewish co-associate from the G.m.b.H. [limited
liability company].
On 30 June 1937 the plaintiff withdrew from the Prenzlau, Behrens, and
Lundin G.m.b.H. The firm is now continuing its business as a trading
company with unlimited liability of the partners. At the time of the
withdrawal, it had not yet been ascertained that a former employee had
defrauded the firm for the amount of 80,000 reichsmarks. He maintains
that he retains his share of the claim against Hahn, or rather those
firms which by default have rendered possible the loss to the G.m.b.H.
of so large an amount. The defendants, in the course of the Armenrecht
proceedings, have offered 3,000 reichsmarks in settlement of the claim,
subject to approval by the Gau economic adviser. The Gau economic
adviser, after only a preliminary short comment, gave the following
interpretation on 6 November 1941:
“In reply to your inquiry I state my point of view in detail.
“In a lawsuit between a German national and a Jew I consider
the settling of a dispute by legal measures inadmissible for
political reasons. The German national as party in the lawsuit,
pursuant to his clearly defined legal standard derived from
his political training since 1933, can expect that the court
will decide the case by a verdict that is to meet a conclusive
decision on the case. What is expected is a decision which was
arrived at not from purely legal points of view, as result of
a legal trend of thoughts, but which is an expression of the
way in which National Socialist demands, concerning the Jewish
question, are realized by German lawyers. Evading this decision
by a compromise might mean encroaching upon the rights of a
fellow citizen in favor of a Jew. This kind of settlement would
be in contradiction to the sound sentiments of the people, I
therefore consider it as inadmissible.”
The defendants thereupon refused a settlement with the plaintiff and
now deny they owe him anything.
On 6 December 1941 the district court [Hamburg] granted Armenrecht.
Subsequently, action was brought in as follows:
1. To disclose to the plaintiff what the payments have been, which have
been made so far to the parties entitled to redress pursuant to the
claim against Hahn.
2. To pay defendant 22 percent of the total amounts received, with 4
percent interest from the day the action was filed.
The court intends now to issue a conclusion based on evidence.
3715-1b 1 17 13 February 1942
To the President of the District Court
Hamburg
1 Document
With regard to the pending case Prenzlau against Behrens and Lundin I
do not intend to approach the economic adviser of the Gau for the time
being, seeing from the documents that the ultimate beneficiary of the
claim--the son of the plaintiff--emigrated in the year 1938 and his
property has therefore surely been confiscated. I fail to understand
why the court granted Armenrecht to the assignee, a Jew, without
first consulting the authority for sequestration of property. The
cession most probably will become meaningless as it was transferred in
trusteeship by the son to the father shortly before his emigration.
Please discuss the matter with the judge.
[Typed signature] DR. ROTHENBERGER
Written: 13 February 1942
Read:
Mailed: 14 February 1942
_Note_
The senator discussed in Berlin the question of granting Armenrecht
to Jews. A ruling will probably be issued shortly. Every case coming
on hand must first be submitted to the senator. President Korn and
President Dr. Segelken have been informed by me to this effect.
Hamburg, 24 February 1942
[Illegible initial]
[Handwritten notes]
Local Court Judge Dr. Bartsch for information.
25 February 42
Seen 25 February 1942
[Signed] SEN
22 May 1942
3715-1b/1/17/
To the President of the District Court
Hamburg
Subject: Granting of Armenrecht to Jews
Reference: Your letter A.R. 53/42
1 Document
I hereby return the document Prenzlau against Behrens and Lundin
2648/41-20 H 28/41 sent to me with report of 7 May.
With his circular ordinance of 5 March 1942--3715 IV b 3 332, with
which you are familiar, the Reich Minister of Justice has annulled
his circular ordinance of 23 June 1939--3740 IV b 1118, stating that
the granting of Armenrecht to Jews could be taken into consideration
only in such cases where the carrying out of the lawsuit is in the
common interest. In consequence thereof I consider it adequate that the
Armenrecht granted to plaintiff Prenzlau be cancelled.
Please have this taken into consideration by the court in a form which
you deem appropriate.
[Typed signature] DR. ROTHENBERGER
22 May 1942
Written: 22 May 1942
Read:
Mailed: 23 May 1942
TRANSLATION OF DOCUMENT 4055-PS
PROSECUTION EXHIBIT 401
LETTER FROM DEFENDANT SCHLEGELBERGER TO LAMMERS, 12 MARCH 1942,
EXPRESSING CONCERN ABOUT CONTEMPLATED ANTI-JEWISH MEASURES; REPLY FROM
LAMMERS, 18 MARCH 1942; LETTER FROM SCHLEGELBERGER TO SEVEN GOVERNMENT
AND PARTY AGENCIES ON “THE FINAL SOLUTION OF THE JEWISH PROBLEM,” 5
APRIL 1942; FILE NOTE ON SITUATION OF BERLIN JEWS, 21 NOVEMBER 1941
Berlin, 12 March 1942
The Acting Reich Minister of Justice
Dear Reich Minister Dr. Lammers:
I have just been informed by my Referent about the result of the
meeting of 6 March regarding the treatment of Jews and descendants of
mixed marriages. I am now expecting the official transcript. According
to the report of my Referent, decisions seem to be under way which I
am constrained to consider absolutely impossible for the most part.
Since the results of these discussions are to constitute the basis for
the decision of the Fuehrer, and since a Referent from your Ministry
participated likewise in these discussions, I urgently desire to
discuss this matter with you on time. As soon as I have received the
transcript of the meeting, I shall take the liberty in calling you to
ask you if and when a discussion may take place.
With sincerest regards and Heil Hitler!
Yours devotedly
[Typed signature] DR. SCHLEGELBERGER
To the Reich Minister and Chief of the Party Chancellery
Dr. Lammers,
Berlin
01/108
The Reich Minister and Chief of the Reich Chancellery
Berlin W 8
Vosstrasse 6
18 March 1942
Pk 3614 B at present Fuehrer Headquarters
Under Secretary Professor Dr. Schlegelberger,
Acting Reich Minister of Justice
Subject: Total solution [Gesamtloesung] of the Jewish question
In reply to the letter of 12 March 1942
Dear Dr. Schlegelberger:
I will be very glad to comply with your request and to discuss this
question with you. I shall probably be visiting Berlin again toward the
end of the month and will then have you informed about a suitable date.
Heil Hitler!
yours sincerely,
[Signed] DR. LAMMERS
The Acting Reich Minister of Justice
Berlin W 8, 5 April 1942
Wilhelmstrasse 65
_Secret Reich Matter_
IV b 40 g RE
To:[353]
1. The Chief of the Party Chancellery
Attention: SS Oberfuehrer Klopfer
2. The Reich Minister of the Interior
Attention: Under Secretary Dr. Stuckart
3. The Chief of the Security Police and the SD
SS Obergruppenfuehrer Heydrich
4. The Deputy for the Four Year Plan
Attention: Under Secretary Neumann
5. The Foreign Office
Attention: Under Secretary Luther
6. The Reich Minister for the Occupied Eastern Territories
Attention: Gau Leader and Under Secretary Dr. Meyer
7. The Race and Settlement Main Office of the Reich Leader SS
Attention: SS Gruppenfuehrer Hofmann
Subject: Final solution [Endloesung] of the Jewish problem
1. The final solution of the Jewish problem presupposes a clear-cut and
permanently applicable definition of the group of persons for whom the
projected measures are to be initiated. Such a definition applies only
when we desist from the beginning from including descendants of mixed
marriages of the second degree in these measures. The measures for the
final solution of the Jewish problem should extend only to full-blooded
Jews and descendants of mixed marriages of the first degree, but should
not apply to descendants of mixed marriages of the second degree.[354]
2. With regard to the treatment of Jewish descendants of mixed
marriages of the first degree, I agree with the conception of the
Reich Minister of the Interior which he expressed in his letter of
16 February 1942, to the effect that the prevention of propagation
of these descendants of mixed marriages is to be preferred to their
being thrown in with the Jews and evacuated. It follows therefrom that
evacuation of those half-Jews who are no more capable of propagation,
is excluded from the beginning. There is no national interest in
dissolving the marriages between such half-Jews and a full-blooded
German.
Those half-Jews who are capable of propagation should be given the
choice to submit to sterilization or to be evacuated in the same
manner as Jews. In the case of sterilization, as well as in that of
evacuation of the half-Jew, the German-blooded partner will have to
be given the opportunity to effect the dissolution of the marriage. I
see no objection to the German partner’s obtaining the possibility of
divorcing his or her sterilized or evacuated partner in a simplified
procedure without [having to observe] the limitation of article 53 of
the marriage law.
3. An exception might be worthy of consideration with respect to those
half-Jews whose descendants are becoming members of the German national
community, and who are finally absorbed by it. If these descendants are
to be incorporated into the German national community as full fledged
members--which has to be the aim in case of a genuine final solution
of the Jewish question--it seems advisable to protect them from being
treated as inferiors or from having feelings of inferiority which
could arise easily out of the knowledge and the bad conscience that
their immediate ancestors have been affected by the planned defensive
measures of the national community. For this reason, it should be
considered whether or not half-Jews whose living descendants are not
half-Jews should be spared from evacuation as well as sterilization.
4. I have no scruples against facilitation of divorce of marriages
between racial Germans and Jews. This facilitation should also be
extended to marriages with persons who are considered as Jews. The
divorce will have to be granted upon the request of the German-blooded
partner in a simplified procedure. I have considerable scruples about
compulsory divorces, for instance, on motion of the public prosecutor.
Such compulsion is unnecessary because the partners will be separated
in any case by the deportation of the Jewish partner. An enforced
divorce, moreover, is without avail, because, though it cuts the
marriage ties, it does not cut the inner tie between the partners;
moreover, it does not relieve the German partner from the scorn to
which he is exposed by clinging to his marriage. Finally, a clinging to
marriage on the part of the German-blooded partner is to be expected
only in the case of older marriages which have endured throughout
many years. In cases in which the Jewish partner, as a rule, is not
evacuated but confined to an old people’s ghetto, the German-blooded
partner who disclaims his membership in the German community should not
be prohibited from being admitted to the ghetto.
[Typed signature] DR. SCHLEGELBERGER
_Note_--In view of the present position of the Jews, discussions
are pending in the building whether Jews are to be deprived of the
right to participate in a lawsuit and whether some other ruling
is to be made concerning their representation before court. The
decisive factor is whether the immediate removal of all Jews can be
counted upon. About 77,000 Jews live in Berlin alone. About 7,000
of these have been removed so far. The Labor Exchange for Jews, 15
Fontane-promenade--Government Counsellor Epphaus--and the Secret State
Police (Dept. Burgstrasse--official in charge, Pruefer) have “reserved”
the Jews, who at present are difficult to replace, who are working in
armament factories and other war essential concerns. Furthermore, Jews
living in privileged mixed marriages have not so far been removed.
On the other hand, all Jewish legal consultants [Konsulenten] in
Berlin have been ordered to leave. These Jews are today “reserved.”
Accordingly, it must be assumed that a considerable number of Jews will
remain on Reich territory, and particularly in Berlin, for some time to
come.
Berlin, 21 November 1941
[Typed signature] LUTTERLOH
Ministerialdirigent
Senior Government Counsellor Dr. Gramm
Please inform the Under Secretary.
PARTIAL TRANSLATION OF DOCUMENT NG-270
PROSECUTION EXHIBIT 155
EXTRACTS FROM AN ARTICLE IN STREICHER’S[355] “DER STUERMER,”
2 APRIL 1942, CONCERNING THE KATZENBERGER TRIAL
AND JUDGMENT
Der Stuermer
DEATH TO THE RACE DEFILER
A Trial before the Nuernberg Special Court
_Race defiler Katzenberger_--13–14 March 1942--page 2, column 1
* * * * * * *
The prosecutor reads the charge. The Jew Katzenberger had committed
“race defilement” with the now 31-year-old business proprietress Irene
S., of Nuernberg, of German blood, from 1932 until the year 1940 (!) by
exploiting this woman’s financial difficulties. He did not even shrink
back from exploiting--for his Talmudic practices--the conditions caused
by the war and the absence of the husband S. who has been conscripted
for military service. Irene S. is charged with attempting to withhold
the deserved punishment from the Jew by committing perjury in the
pretrial interrogation.
_How Katzenberger defends himself_ (p. 2, col. 1)
* * * * * * *
How will Katzenberger try to deceive the Court and escape avenging
justice?
The Jew Katzenberger developed special tactics of his own. He pretends
not to have engaged in “race defiling,” but to have entertained merely
“fatherly” relations with Irene S. * * * Only out of “pure fatherly”
sentiment has he thrown cigarettes to her through the window and given
her lots of shoes.
* * * * * * *
_Before the verdict_ (p. 2, col. 4)
After the presentation of evidence has been concluded, the prosecutor
rises. With sharp words he characterizes the defendant as a criminal,
who did not even shrink back from exploiting war conditions for his
shameless activities. As a race defiler and public parasite in the
sense of the law, Katzenberger has forfeited his life. Therefore, the
death sentence should be pronounced against him. The other defendant,
Irene S., should be sentenced to 2 years’ hard labor and loss of civil
rights for 2 years.
* * * * * * *
In his final statement the Jew Katzenberger eventually tries at least
to save what can be saved.
Once more he tries to act the “benefactor,” in order to appeal to the
pity of the judges. With an impudence which only a Jew can muster, he
characterizes all that has been presented against him, as “backstairs’
gossip” and finally even wants to claim Frederick The Great as his
principal witness. But the president does not permit a Jewish race
defiler to soil the figure of the great Prussian King. The court then
adjourned for deliberation.
_Sentenced to death!_ (p. 3, col. 1)
When the court reenters the courtroom to announce the verdict one can
already see from the earnest looks of the judges that the fate of the
Talmudic criminal has been sealed.
As a race defiler and public parasite Katzenberger is sentenced to
death.
The codefendant Irene S. gets 2 years’ hard labor and loss of civil
rights for perjury. President of the District Court of Appeal R.
points to words in the findings of the verdict, which prove to what
extent the German judges are imbued with the tremendous importance of
the racial laws. The president brands the depravity of the defendant
and stamps him as an evil public parasite. “Racial defilement is
worse than murder! Entire generations will be affected by it into the
remotest future!” President of the district court of appeal R. in his
speech also refers to the guilt of Jewry in this war. “If today German
soldiers are bleeding to death, then the guilt falls upon that race
which from the very beginning strived for Germany’s ruin, and still
hopes today that the German people will not emerge from this struggle.”
In the case of Katzenberger the court had to pronounce the death
sentence. The physical destruction of the perpetrator was the only
possible atonement.
_The end_ (p. 3, col. 1)
With the findings of the verdict the sentence of the Special Court has
become effective.
_Why the “Stuermer” describes the Katzenberger trial in detail_
(p. 3, col. 2)
* * * * * * *
The Jew Katzenberger was sentenced to death as a race defiler and
public parasite. This sentence (it is not the first of this kind in
the Reich) was pronounced in Nuernberg and thus honors the city whose
name was bestowed upon the racial laws of 15 September 1935. For the
“Stuermer” however, this sentence signifies a special satisfaction,
because it was the “Stuermer” which, in a special edition of the year
1938, had demanded the death penalty for race defilers.
* * * * * * *
If today Jewish race defilers are really sentenced to death, then this
proves that the “Stuermer” has been a good prophet for many years.
_Race defilers are public parasites_ (p. 3, col. 4)
* * * * * * *
Jewish race defilers therefore will have to take care in the future.
They do not risk their freedom only but also their heads and necks.
The patience of the German people has become exhausted. It does not
treat Jewish public parasites more tenderly any longer than the public
parasites from our own ranks. In this sense the Katzenberger trial has
received a significance which goes far beyond the Nuernberg courtroom.
_Everything for the German people_ (p. 3, col. 4)
The world Jewry will discover that Germany knows how to defend herself
with the severe measures against Jewish race defilers. Now it will
again write using the old long-tried tactics, about the “medieval
conditions” prevailing in Germany. It will again glorify those “poor,
deplorable, harmless Jews,” who become the victims of National
Socialist legislation. It will give vent to spite and malice toward
Germany.
TRANSLATION OF DOCUMENT NG-154
PROSECUTION EXHIBIT 152
OPINION AND SENTENCE OF THE NUERNBERG SPECIAL COURT IN
THE KATZENBERGER CASE, 13 MARCH 1942, IN WHICH DEFENDANT
ROTHAUG WAS PRESIDING JUDGE[356]
Sg No. 351/41
_Verdict_
In the name of the German People
The Special Court for the district of the Court of Appeal in Nuernberg
with the District Court Nuernberg-Fuerth in the proceedings against
Katzenberger, Lehmann Israel, commonly called Leo, merchant and head of
the Jewish religious community in Nuernberg, and Seiler, Irene, owner
of a photographic shop in Nuernberg, both at present in arrest pending
trial the charges being racial pollution and perjury--in public session
of 13 March 1942, in the presence of--
The President--Dr. Rothaug, Senior Judge of the District Court;
Associate Judges--Dr. Ferber and Dr. Hoffmann, Judges of the
District Court;
Public Prosecutor for the Special Court--Markl; and
Official Registrar: Raisin, clerk,
pronounced the following verdict:
Katzenberger, Lehmann Israel, commonly called Leo, Jewish by race and
religion, born 25 November 1873 at Massbach, married, merchant of
Nuernberg; Seiler, Irene, née Scheffler, born 26 April 1910 at Guben,
married, owner of a photographic shop in Nuernberg, both at present in
arrest pending trial have been sentenced as follows:
Katzenberger--for an offense under section 2, legally identical with
an offense under section 4 of the decree against public enemies in
connection with the offense of racial pollution to death and to loss of
his civil rights for life according to sections 32–34 of the criminal
(penal) code.
Seiler--for the offense of committing perjury while a witness to 2
years of hard labor and to loss of her civil rights for the duration of
2 years.
The 3 months the defendant Seiler spent in arrest pending trial will be
taken into consideration in her sentence.
Costs will be charged to the defendants.
_Findings_
I
1. The defendant Katzenberger is fully Jewish and a German national; he
is a member of the Jewish religious community.
As far as his descent is concerned, extracts from the birth registers
of the Jewish community at Massbach show that the defendant was born
on 25 November 1873 as the son of Louis David Katzenberger, merchant,
and his wife Helene née Adelberg. The defendant’s father, born on 30
June 1838 at Massbach, was, according to an extract from the Jewish
registers at Thundorf, the legitimate son of David Katzenberger,
weaver, and his wife Karoline Lippig. The defendants’ mother Lena
Adelberg, born on 14 June 1847 at Aschbach, was, according to extracts
from the birth register of the Jewish religious community of Aschbach,
the legitimate daughter of Lehmann Adelberg, merchant and his wife,
Lea. According to the Thundorf register, the defendant’s parents were
married on 3 December 1867 by the district rabbi in Schweinfurt. The
defendant’s grandparents on his father’s side were married, according
to extracts from the Thundorf register, on 3 April 1832; those on his
mother’s side were married, according to an extract from the register
of marriages of the Jewish religious community of Aschbach, on 14
August 1836.
The extracts from the register of marriages of the Jewish religious
community at Aschbach show, concerning the marriage of the maternal
grandparents, that Bela-Lea Seemann, born at Aschbach in 1809, was
a member of the Jewish religious community. Otherwise the documents
mentioned give no further information so far as confessional
affiliations are concerned that parents or grandparents were of Jewish
faith.
The defendant himself has stated that he is certain that all four
grandparents were members of the Jewish faith. His grandmothers he
knew when they were alive; both grandfathers were buried in Jewish
cemeteries. Both his parents belonged to the Jewish religious
community, as he does himself.
The court sees no reason to doubt the correctness of these statements,
which are fully corroborated by the available extracts from exclusively
Jewish registers. Should it be true that all four grandparents belonged
to the Jewish faith, the grandparents would be regarded as fully
Jewish according to the regulation to facilitate the producing of
evidence in section 5, paragraph 1 together with section 2, paragraph
2, page 2 of the ordinance to the Reich Civil Code of 14 November 1935
Reichsgesetzblatt, page 1333. The defendant therefore is fully Jewish
in the sense of the Law for the Protection of German Blood.[357] His
own admissions show that he himself shared that view.
The defendant Katzenberger came to Nuernberg in 1912. Together with his
brothers, David and Max, he ran a shoe shop until November 1938. The
defendant married in 1906, and there are two children, ages 30 and 34.
Up to 1938 the defendant and his brothers, David and Max, owned the
property of 19 Spittlertorgraben in Nuernberg. There were offices and
storerooms in the rear building, whereas the main building facing the
street was an apartment house with several apartments.
The codefendant Irene Seiler arrived in 1932 to take a flat in 19
Spittlertorgraben, and the defendant Katzenberger has been acquainted
with her since that date.
2. Irene Seiler, née Scheffler, is a German citizen of German blood.
Her descent is proved by documents relating to all four grandparents.
She herself, her parents, and all her grandparents belong to the
Protestant Lutheran faith. This finding of the religious background is
based on available birth and marriage certificates of the Scheffler
family which were made part of the trial. As far as descent is
concerned therefore, there can be no doubt about Irene Seiler, née
Scheffler, being of German blood.
The defendant Katzenberger was fully cognizant of the fact that Irene
Seiler was of German blood and of German nationality.
On 29 July 1939, Irene Scheffler married Johann Seiler, a commercial
agent. There have been no children so far.
In her native city, Guben, the defendant attended secondary school and
high school up to Unterprima [eighth grade of high school], and after
that, for 1 year, she attended the Leipzig State Academy of Art and
Book Craft.
She went to Nuernberg in 1932 where she worked in the photographic
laboratory of her sister Hertha, which the latter had managed since
1928 as a tenant of 19 Spittlertorgraben. On 1 January 1938, she took
over her sister’s business at her own expense. On 24 February 1938, she
passed her professional examination.
3. The defendant Katzenberger is charged with having had continual
extra-marital sexual intercourse with Irene Seiler, née Scheffler, a
German national of German blood. He is said to have visited Seiler
frequently in her apartment in Spittlertorgraben up to March 1940,
while Seiler visited him frequently, up to autumn 1938, in the offices
of the rear building. Seiler, who is alleged to have got herself in
a dependent position by accepting gifts of money from the defendant
Katzenberger and by being allowed delay in paying her rent, was
sexually amenable to Katzenberger. Thus, their acquaintance is said to
have become of a sexual nature, and, in particular, sexual intercourse
occurred. They are both said to have exchanged kisses sometimes in
Seiler’s flat and sometimes in Katzenberger’s offices. Seiler is
alleged to have often sat on Katzenberger’s lap. On these occasions
Katzenberger, in order to achieve sexual satisfaction, is said to have
caressed and patted Seiler on her thighs through her clothes, clinging
closely to Seiler, and resting his head on her bosom.
The defendant Katzenberger is charged with having committed this act
of racial pollution by taking advantage of wartime conditions. Lack of
supervision was in his favor, especially as he is said to have visited
Seiler during the black-out. Moreover, Seiler’s husband had been called
up, and consequently surprise appearances of the husband were not to be
feared.
The defendant Irene Seiler is charged with having, on the occasion of
her interrogation by the investigating judge of the local Nuernberg
Court on 9 July 1941, made deliberately untrue statements and affirmed
under oath that this contact was without sexual motives and that she
believed that to apply to Katzenberger as well.
Seiler, it is alleged, has thereby become guilty of being a perjuring
witness.
The defendants have said this in their defense--
_The defendant Seiler_--When in 1932 she arrived in the
photographic laboratory of her sister in Nuernberg, she was thrown
completely on her own resources. Her sister returned to Guben, where
she opened a studio as a photographer. Her father had recommended her
to the landlord, the defendant Katzenberger, asking him to look after
her and to assist her in word and deed. This was how she became closely
acquainted with the Jew Katzenberger.
As time went on, Katzenberger did indeed become her adviser, helping
her, in particular, in her financial difficulties. Delighted with the
friendship and kindness shown her by Katzenberger she came to regard
him gradually as nothing but a fatherly friend, and it never occurred
to her to look upon him as a Jew. It was true that she called regularly
in the storerooms of the rear house. She did so after office hours,
because it was easier then to pick out shoes. It also happened that
during these visits, and during those paid by Katzenberger to her flat,
she kissed Katzenberger now and then and allowed him to kiss her. On
these occasions she frequently would sit on Katzenberger’s lap which
was quite natural with her and had no ulterior motive. In no way should
sexual motives be regarded as the cause of her actions. She always
thought that Katzenberger’s feelings for her were purely those of a
concerned father.
Basing herself on this view she made the statement to the investigating
judge on 9 July 1941 and affirmed under oath, that when exchanging
those caresses neither she herself nor Katzenberger did so because of
any erotic emotions.
_The defendant Katzenberger_--He denies having committed an
offense. It is his defense that his relations with Frau Seiler were of
a purely friendly nature. The Scheffler family in Guben had likewise
looked upon his relations with Frau Seiler only from this point of
view. That he continued his relations with Frau Seiler after 1933,
1935, and 1938, might be regarded as a wrong [Unrecht] by the NSDAP.
The fact of his doing so, however, showed that his conscience was clear.
Moreover, their meetings became less frequent after the action
against the Jews in 1938. After Frau Seiler got married in 1939, the
husband often came in unexpectedly when he, Katzenberger, was with
Frau Seiler in the flat. Never, however, did the husband surprise
them in an ambiguous situation. In January or February 1940, at the
request of the husband, he went to the Seiler’s apartment twice to
help them fill in their tax declarations. The last talk he ever had
in the Seiler apartment took place in March 1940. On that occasion
Frau Seiler suggested to him to discontinue his visits because of the
representations made to her by the NSDAP, and she gave him a farewell
kiss in the presence of her husband.
He never pursued any plans when being together with Frau Seiler, and he
therefore could not have taken advantage of wartime conditions and the
black-out.
II
The court has drawn the following conclusions from the excuses made
by the defendant Katzenberger and the restrictions with which the
defendant Seiler attempted to render her admissions less harmful:
When, in 1932, the defendant Seiler came to settle in Nuernberg at
the age of 22, she was a fully grown and sexually mature young woman.
According to her own admissions, credible in this case, she was not
above sexual surrender in her relations with her friends.
In Nuernberg, when she had taken over her sister’s laboratory in 19
Spittlertorgraben, she entered the immediate sphere of the defendant
Katzenberger. During their acquaintance she gradually became willing,
in a period of almost 10 years, to exchange caresses and, according
to the confessions of both defendants, situations arose which can by
no means be regarded merely as the outcome of fatherly friendliness.
When she met Katzenberger in his offices in the rear building or in her
flat, she sat often on his lap and, without a doubt, kissed his lips
and cheeks. On these occasions Katzenberger, as he admitted himself,
responded to these caresses by returning the kisses, putting his head
on her bosom and patting her thighs through her clothes.
To assume that the exchange of these caresses, admitted by both of
them, were on Katzenberger’s part the expression of his fatherly
feelings, on Seiler’s part merely the actions caused by daughterly
feelings with a strong emotional accent, as a natural result of the
situation, is contrary to all experience of daily life. The subterfuge
used by the defendant in this respect is in the view of the court
simply a crude attempt to disguise as sentiment, free of all sexual
lust, these actions with their strong sexual bias. In view of the
character of the two defendants and basing itself on the evidence
submitted, the court is firmly convinced that sexual motives were the
primary cause for the caresses exchanged by the two defendants.
Seiler was usually in financial difficulties. Katzenberger availed
himself of this fact to make her frequent gifts of money, and
repeatedly gave her sums from 1 to 10 reichsmarks. In his capacity as
administrator of the property on which Seiler lived and which was owned
by the firm he was a partner of, Katzenberger often allowed her long
delays in paying her rental debts. He often gave Seiler cigarettes,
flowers, and shoes.
The defendant Seiler admits that she was anxious to remain in
Katzenberger’s favor. They addressed each other in the second person
singular.
According to the facts established in the trial, the two defendants
offered to their immediate surroundings, and in particular to the
community of the house of 19 Spittlertorgraben, the impression of
having an intimate love affair.
The witnesses Kleylein, Paul and Babette; Maesel, Johann; Heilmann,
Johann; and Leibner, Georg observed frequently that Katzenberger
and Seiler waved to each other when Seiler, through one of the rear
windows of her flat, saw Katzenberger in his offices. The witnesses’
attention was drawn particularly to the frequent visits paid by Seiler
to Katzenberger’s offices after business hours and on Sundays, as well
as to the length of these visits. Everyone in the house came to know
eventually that Seiler kept asking Katzenberger for money, and they all
became convinced that Katzenberger, as the Jewish creditor, exploited
sexually the poor financial situation of the German-blooded woman
Seiler. The witness Heilmann, in a conversation with the witness Paul
Kleylein, expressed his opinion of the matter to the effect that the
Jew was getting a good return for the money he gave Seiler.
Nor did the two defendants themselves regard these mutual calls and
exchange of caresses as being merely casual happenings of daily life,
beyond reproach. According to statements made by the witnesses Babette
and Paul Kleylein, they observed Katzenberger to show definite signs
of fright when he saw that they had discovered his visits to Seiler’s
flat as late as 1940. The witnesses also observed that during the later
period Katzenberger sneaked into Seiler’s flat rather than walking in
openly.
In August 1940, while being in the air-raid shelter, the defendant
Seiler had to put up with the following reply given to her by
Oestreicher, an inhabitant of the same house, in the presence of all
other inhabitants: “I’ll pay you back, you Jewish hussy.” Seiler did
not do anything to defend herself against this reproach later on, and
all she did was to tell Katzenberger of this incident shortly after it
had happened. Seiler has been unable to give an even remotely credible
explanation why she showed this remarkable restraint in the face of so
strong an expression of suspicion. Simply pointing out that her father,
who is over seventy, had advised her not to take any steps against
Oestreicher does not make more plausible her restraint shown in the
face of the grave accusation made in public.
The statements made by Hans Zeuschel, assistant inspector of the
criminal police, show that the two defendants did not admit from the
very beginning the existing sexual situation as being beyond reproach.
The fact that Seiler admitted the caresses bestowed on Katzenberger
only after having been earnestly admonished, and the additional fact
that Katzenberger, when interrogated by the police, confessed only when
Seiler’s statements were being shown to him, forces the conclusion that
they both deemed it advisable to keep secret the actions for which they
have been put on trial. This being so, the court is convinced that the
two defendants made these statements only for reason of opportuneness
intending to minimize and render harmless a situation which has been
established by witnesses’ testimony.
Seiler has also admitted that she did not tell her husband about the
caresses exchanged with Katzenberger prior to her marriage--all she
told him was that in the past Katzenberger had helped her a good deal.
After getting married in July 1939 she gave Katzenberger a “friendly
kiss” on the cheek in the presence of her husband on only one occasion,
otherwise they avoided kissing each other when the husband was present.
In view of the behavior of the defendants toward each other, as
repeatedly described, the court has become convinced that the
relations between Seiler and Katzenberger which extended over a
period of 10 years were of a purely sexual nature. This is the only
possible explanation of the intimacy of their acquaintance. As there
were a large number of circumstances favoring seduction no doubt is
possible that the defendant Katzenberger maintained continuous sexual
intercourse with Seiler. The court considers as untrue Katzenberger’s
statement to the contrary that Seiler did not interest him sexually,
and the statements made by the defendant Seiler in support of
Katzenberger’s defense the court considers as incompatible with all
practical experience. They were obviously made with the purpose of
saving Katzenberger from his punishment.
The court is therefore convinced that Katzenberger, after the Nuernberg
laws had come into effect, had repeated sexual intercourse with Seiler,
up to March 1940. It is not possible to say on what days and how often
this took place.
The Law for the Protection of German Blood defines extra-marital sexual
intercourse as any form of sexual activity apart from the actual
cohabitation with a member of the opposite sex which, by the method
applied in place of actual intercourse, serves to satisfy the sexual
instincts of at least one of the partners. The conduct to which the
defendants admitted and which in the case of Katzenberger consisted
in drawing Seiler close to him, kissing her, patting and caressing
her thighs over her clothes, makes it clear that in a crude manner
Katzenberger did to Seiler what is popularly called “Abschmieren”
[petting]. It is obvious that such actions are motivated only by
sexual impulses. Even if the Jew had only done these so-called
“Ersatzhandlungen” [sexual acts in lieu of actual intercourse] to
Seiler, it would have been sufficient to charge him with racial
pollution in the full sense of the law.
The court, however, is convinced over and above this that Katzenberger,
who admits that he is still capable of having sexual intercourse,
had intercourse with Seiler throughout the duration of their affair.
According to general experiences it is impossible to assume that
in the 10 years of his tête-a-tête with Seiler, which often lasted
up to an hour, Katzenberger would have been satisfied with the
“Ersatzhandlungen” which in themselves warranted the application of the
law.
III
Thus, the defendant Katzenberger has been convicted of having had,
as a Jew, extra-marital sexual intercourse with a German citizen of
German blood after the Law for the Protection of German Blood came
into force, which according to section 7 of the law means after 17
September 1935. His actions were guided by a consistent plan which was
aimed at repetition from the very beginning. He is therefore guilty of
a continuous crime of racial pollution according to sections 2 and 5,
paragraph 11 of the Law for the Protection of German Blood and German
Honor of 15 September 1935.
A legal analysis of the established facts shows that in his polluting
activities, the defendant Katzenberger, moreover, generally exploited
the exceptional conditions arising out of wartime circumstances. Men
have largely vanished from towns and villages because they have been
called up or are doing other work for the armed forces which prevents
them from remaining at home and maintaining order. It was these
general conditions and wartime changes which the defendant exploited.
As he continued his visits to Seiler’s apartment up to spring 1940,
the defendant took into account the fact that in the absence of more
stringent measures of control his practices could not, at least not
very easily, be seen through. The fact that her husband had been
drafted into the armed forces also helped him in his activities.
Looked at from this point of view, Katzenberger’s conduct is
particularly contemptible. Together with his offense of racial
pollution he is also guilty of an offense under section 4 of the
decree against public enemies. It should be noted here that the
national community is in need of increased legal protection from all
crimes attempting to destroy or undermine its inner solidarity.
On several occasions since the outbreak of war the defendant
Katzenberger sneaked into Seiler’s flat after dark. In these cases the
defendant acted by exploiting the measures taken for the protection in
air raids and by making use of the black-out. His chances were further
improved by the absence of the bright street lighting which exists
in the street along Spittlertorgraben in peacetime. In each case he
exploited this fact being fully aware of its significance, thus during
his excursions he instinctively escaped observation by people in the
street.
The visits paid by Katzenberger to Seiler under the cover of the
black-out served at least the purpose of keeping relations going.
It does not matter whether during these visits extra-marital sexual
intercourse took place or whether they only conversed because the
husband was present, as Katzenberger claims. The motion to have the
husband called as a witness was therefore overruled. The court holds
the view that the defendant’s actions were deliberately performed
as part of a consistent plan and amount to a crime against the body
according to section 2 of the decree against public enemies. The law of
15 September 1935 was promulgated to protect German blood and German
honor. The Jew’s racial pollution amounts to a grave attack on the
purity of German blood, the object of the attack being the body of a
German woman. The general need for protection therefore makes appear as
unimportant the behavior of the other partner in racial pollution who,
however, is not liable to prosecution. The fact that racial pollution
occurred at least up to 1939–1940 becomes clear from statements made by
the witness Zeuschel to whom the defendant repeatedly and consistently
admitted that up to the end of 1939 and the beginning of 1940 she was
used to sitting on the Jew’s lap and exchanging caresses as described
above.
Thus, the defendant committed an offense also under section 2 of the
decree against public enemies.
The personal character of the defendant likewise stamps him as a public
enemy. The racial pollution practiced by him through many years grew,
by exploiting wartime condition, into an attitude inimical to the
nation, into an attack on the security of the national community during
an emergency.
This was why the defendant Katzenberger had to be sentenced, both on
a crime of racial pollution and of an offense under sections 2 and 4
of the decree against public enemies, the two charges being taken in
conjunction according to section 73 of the penal code.
In view of the court the defendant Seiler realized that the contact
which Katzenberger continuously had with her was of a sexual nature.
The court has no doubt that Seiler actually had sexual intercourse with
Katzenberger. Accordingly the oath given by her as a witness was to her
knowledge and intention a false one, and she became guilty of perjury
under sections 154 and 153 of the penal code.
IV
In passing sentence the court was guided by the following
considerations:
The political form of life of the German people under national
socialism is based on the community. One fundamental factor of the
life of the national community is the racial problem. If a Jew commits
racial pollution with a German woman, this amounts to polluting the
German race and, by polluting a German woman, to a grave attack on the
purity of German blood. The need for protection is particularly strong.
Katzenberger practiced pollution for years. He was well acquainted with
the point of view taken by patriotic German men and women as regards
racial problems and he knew that by his conduct the patriotic feelings
of the German people were slapped in the face. Neither the National
Socialist Revolution of 1933, nor the passing of the Law for the
Protection of German Blood in 1935, neither the action against the Jews
in 1938, nor the outbreak of war in 1939 made him abandon this activity
of his.
As the only feasible answer to the frivolous conduct of the defendant,
the court therefore deems it necessary to pronounce the death sentence
as the heaviest punishment provided by section 4 of the decree against
public enemies. His case must be judged with special severity, as he
had to be sentenced in connection with the offense of committing racial
pollution, under section 2 of the decree against public enemies, the
more so, if taking into consideration the defendant’s personality
and the accumulative nature of his deeds. This is why the defendant
is liable to the death penalty which the law provides for such cases
as the only punishment. Dr. Baur, the medical expert, describes the
defendant as fully responsible.
Accordingly, the court has pronounced the death sentence. It was also
considered necessary to deprive him of his civil rights for life, as
specified in sections 32–34 of the penal code. When imposing punishment
on the defendant Seiler, her personal character was the first matter
to be considered. For many years, Seiler indulged in this contemptible
love affair with the Jew Katzenberger. The national regeneration of
the German people in 1933 was altogether immaterial to her in her
practices, nor was she in the least influenced when the Law for the
Protection of German Blood and Honor was promulgated in September 1935.
It was, therefore, nothing but an act of frivolous provocation on her
part to apply for membership in the NSDAP in 1937 which she obtained.
When by initiating legal proceedings against Katzenberger the
German people were to be given satisfaction for the Jew’s polluting
activities, the defendant Seiler did not pay the slightest heed to the
concerns of State authority or to those of the people and decided to
protect the Jew.
Taking this over-all situation into consideration the court considered
a sentence of 4 years of hard labor as having been deserved by the
defendant.
An extenuating circumstance was that the defendant, finding herself in
an embarrassing situation, affirmed her--as she knew--false statement
with an oath. Had she spoken the truth she could have been prosecuted
for adultery, aiding, and soliciting. The court therefore reduced the
sentence by half despite her guilt, and imposed as the appropriate
sentence 2 years of hard labor. (Sec. 157, par. I, No. 1, of the Penal
Code.)
On account of the lack of honor of which she was convicted, she had
to be deprived of her civil rights too. This has been decided for a
duration of 2 years.
Taking into consideration the time spent in arrest pending trial:
Section 60, Penal Code. Costs: Section 465, Code of Criminal Procedure.
[Signed] ROTHAUG
DR. FERBER
DR. HOFFMANN
Certified:
Nuernberg, 23 March 1942
The Registrar of the Office of the Special
Court for the district of the Nuernberg Court
of Appeal with the District Court Nuernberg-Fuerth
[Stamp]
District Court [Illegible signature]
Nuernberg-Fuerth Justizinspektor
PARTIAL TRANSLATION OF DOCUMENT NG-129
PROSECUTION EXHIBIT 355
LETTER FROM DEFENDANT SCHLEGELBERGER AND GREISER, REICH GOVERNOR OF THE
WARTHEGAU (POLAND) TO LAMMERS, 15 DECEMBER 1941, STATING THAT GREISER’S
AUTHORITY CONCERNING THE EXECUTION OF DEATH SENTENCES AND PARDONING OF
POLES AND JEWS IS NO LONGER RESTRICTED
Berlin, 15 December 1941
II a-2-3020/41
To the Reich Minister and Chief of the Chancellery of the Reich
Subject: Letter of the cosignatory Reichsstatthalter of the
Reichsgau Wartheland, dated 13 November 1941
Since the cosignatory Reichsstatthalter of the Reichsgau Wartheland
has been notified by the cosignatory Reich Minister of Justice, that
until further notice, that is for the duration of war, the delegation
of authority to the Reichsstatthalter in the Reichsgau Wartheland to
order the execution of death penalties against Poles and Jews, as well
as for pardoning of Poles and Jews who have been sentenced to death, is
no longer restricted, the contents of the communication of 13 November
is of no further consequence.
[Signed] SCHLEGELBERGER
[Signed] GREISER
Rk 1000 B
TRANSLATION OF DOCUMENT NG-128
PROSECUTION EXHIBIT 354
LETTER FROM THE PROVINCIAL PRESIDENT OF UPPER SILESIA TO LAMMERS,
26 JANUARY 1942, REQUESTING THE POWER OF AMNESTY FOR POLES AND JEWS
SENTENCED TO DEATH
BK 1279 28 January 1942 [Initial] FI [Ficker]
Provincial President
Of the Province of Upper Silesia
O. P. I b 3
[Handwritten] on hand RM 1,000 B 1ob
BBT 145
Katowice, 26 January 1942
Hindenburgstrasse
Telephone: 34 921
[Initial] Ma 28/1
[Initial] Gg
[Illegible initial]
28/1
To the Chief of the Reich Chancellery
Reich Minister Dr. Lammers
Reich Chancellery
Berlin
Dear Reich Minister:
The decree of 4 December 1941, 1b (Reich Law Gazette I, p. 759),
concerning penal measures against Poles and Jews in the Incorporated
Eastern Territories aims at punishing quickly and effectively criminal
acts committed by Poles and Jews within the Incorporated Eastern
Territories. Its success, however, is doubtful as long as it is
necessary to obtain a decision from the Reich Minister of Justice
before granting amnesties [Gnadenrecht] to Poles and Jews sentenced
to death. In view of the peculiar criminal and political situation
in Upper Silesia, which is marked by the growing Polish resistance
movement, such delays--especially in wartime--are intolerable.
I therefore request you to take steps to have transferred to the power
of granting amnesties--at least for the duration of the war--to Poles
and Jews within the province of Upper Silesia who have been legally
sentenced to death.
I should like to point out especially that according to an article
in the periodical “Deutsches Recht,” 1941, (p. 2472), the Gauleiter
and Reichsstatthalter in the Reichsgau Wartheland [Greiser][358] has
already been granted similar powers.
Heil Hitler!
Yours
N 89 Justice 12 [Signed] BRACHT
TRANSLATION OF DOCUMENT NG-126
PROSECUTION EXHIBIT 356
LETTER FROM DEFENDANT SCHLEGELBERGER TO LAMMERS, 26 MAY 1942,
TRANSMITTING A COPY OF SCHLEGELBERGER’S DECREE DELEGATING THE RIGHT TO
PARDON POLES AND JEWS TO REICH GOVERNORS AND PROVINCIAL PRESIDENTS
[Stamp]
Reich Chancellery 7996B-2 June 1942
[Initial] FI [Ficker]
1 enclosure
Reich Minister of Justice
9170 East /2--IIa-2-1054/42
Berlin W 8, 26 May 1942
Wilhelmstrasse 65
Telephone: 11 00 44
Long distance: 11 65 16
[Initial] KR [Kritzinger]
To the Reich Minister and Chief of the Reich Chancellery
Subject: Delegation of the right of pardon in the case of Jews
and Poles
Reference: Letter of 16 March 1942--Reich Chancellery 2477 B.
1 enclosure
I enclose for your information a copy of my decree of 28 May 1942,
by which I, in agreement with the Reich Minister and the Chief of
the Presidential Chancellery, delegated the exercise of the right of
pardon in the case of Poles and Jews sentenced by general courts in the
Incorporated Eastern Territories to the Reich governors and provincial
presidents of these provinces for the duration of the war.
The Acting Minister
[Signed] DR. SCHLEGELBERGER
[Handwritten notes]
1. Submitted to the Reich Minister.
[Initial] L [Lammers] 6 June
2. File!
[Initial] KR [Kritzinger] 3 June
[Initial] F [Ficker] 2 June
[Decree delegating Right to pardon Poles and Jews to Reich Governors
and Provincial Presidents]
I delegate for the duration of the war the exercise of the right
to pardon Poles and Jews sentenced by the general courts in the
Incorporated Eastern Territories (including the Special Courts), as
far as the Fuehrer has delegated it to me and no other delegation has
yet been made by me, to the Reich governors (attorneys general) each
for his respective province, in the Reich provinces of Wartheland and
Danzig-West Prussia and the provincial presidents of the provinces of
Upper Silesia and East Prussia.
Berlin, 28 May 1942
The Acting Reich Minister of Justice
[Signed] DR. SCHLEGELBERGER
(Seal)
to 9/70 East /2--II a-2-1054/42
7886 B 341357
TRANSLATION OF DOCUMENT NG-744
PROSECUTION EXHIBIT 500
LETTER FROM THE REICH MINISTRY OF JUSTICE, SIGNED BY FREISLER, TO
PRESIDENTS OF DISTRICT COURTS OF APPEAL AND OTHERS, 7 AUGUST 1942,
CONCERNING “POLES AND JEWS IN PROCEEDINGS AGAINST GERMANS”
The Reich Minister of Justice
4110-IV a-4-1586
Berlin W 8, 7 August 1942
Wilhelmstrasse 65
Telephone: 11 00 44
Long distance: 11 65 16
To the
Presidents of the District Courts of Appeal,
Attorneys General at the District Courts of Appeal
For information to:
(_a_) The Presidents of the Reich Supreme Court and of the
People’s Court,
(_b_) The Chief Reich Prosecutors at the Reich Supreme Court
and at the People’s Court.
Subject: Poles and Jews in proceedings against Germans
Enclosures: Copies for the Presidents of the District Courts,
Chief Public Prosecutors, Local Courts, and Public
Prosecutors at the Local Courts
The Penal Ordinance for Poles of 4 December 1941[359]
(Reichsgesetzblatt I, p. 759) was intended not only to serve as a
criminal law against Poles and Jews, but beyond that also to provide
general principles for the German administration of law to be adopted
in all criminal proceedings against Poles and Jews irrespective of the
role which the Poles and Jews play in the individual proceedings. The
regulations of article IX, for instance, according to which Poles and
Jews are not to be sworn in apply to proceedings against Germans as
well.
I have found that the special legal status of the Poles and Jews who
are subject to the penal ordinance for Poles is not always taken into
account. Reference is therefore made to the following points:
1. Proceedings against Germans should be carried on whenever
possible without calling Poles and Jews as witnesses. If, however,
such a testimony cannot be evaded, the Pole or Jew must not appear
as a witness against the German during the trial, he must always
be interrogated by a judge who has been appointed or requested
to do so, (art. II, par. 1 of the Order for Execution of 31 Jan.
1942[360]--(Reichsgesetzblatt I, p. 52)).
2. Evidence given by Poles and Jews during proceedings against Germans
must be received with the utmost caution especially in those cases
where other evidence is lacking. I request that the Fuehrer order
published in my circular decree of 3 September 1941-4103-II a-2-2041/41
concerning the interrogation of enemy subjects be applied to Poles and
Jews as well.
3. Proceedings against Germans on the basis of charges preferred by
Poles and Jews are only justified if sufficient proof is available
that such a charge is well founded and if paragraph 153 of the Code
of Criminal Procedure appears to be nonapplicable right from the
beginning. As a rule, a thorough interrogation of the person preferring
charges will have to take place first. The public prosecutor will also
limit his application to the police in the same way. Coercive measures
against the accused German as well as his official interrogation should
in every case be undertaken only if the suspicion that the German has
committed a serious offense has been sufficiently substantiated.
No information about the result of the proceedings is to be given to a
Pole or Jew who has preferred charges against a German.
As deputy:
[typed] Signed: DR. FREISLER
Certified.
[Signed] KANNIESS
Senior clerk of Ministerial Chancellery
[Stamp]
Reich Ministry of Justice
Office of the Minister
TRANSLATION OF DOCUMENT 662-PS
PROSECUTION EXHIBIT 263
NOTES OF THE REICH MINISTRY OF JUSTICE ON A CONFERENCE OF 9 OCTOBER
1942 ON TRANSFER OF CONVICTS AND “ASOCIALS” IN VARIOUS CATEGORIES TO
THE AFRICA BRIGADE, SPECIAL COMMANDOS IN THE EAST, AND TO HIMMLER
_Copy_
Conference on 9 October 1942
SECRET
_I. AFRICA BRIGADE_
The Fuehrer has ordered the formation of an Africa Brigade composed
of members of the age groups 1908 and younger who had hitherto been
classified as unworthy of military service. The military unworthy
assigned to the brigade in the African theater should be given the
opportunity to redeem themselves, and thereby obtain permanent military
worthiness. Those called up by virtue of the Fuehrer’s orders are to
be classified as military worthy for the duration of their military
service.
For the execution of the Fuehrer’s order, the High Command of the
Armed Forces has issued the order of 2 October 1942--_Az 12 i 10.34
AHA/Ag/E_ (_Ia_)--Nr.550/42 g Kdos (top secret). Accordingly,
the following will be called up:
1. Military unworthy German citizens of the age group 1908 or younger
who have been sent to the penitentiary for 3 years or less and have not
been penalized for the same or similar offenses either before or after
the original offense.
2. Military unworthy German citizens of the same age group who have
been sentenced to the penitentiary for 3 to 5 years for a first
offense, and have no previous or later sentences.
3. Military unworthy German citizens of the same age group who have
been sentenced to the penitentiary for 3 years (ref. par. 1) _and_
who still are _serving their sentences_, in case they have served
1 year with good conduct.
Concerning paragraphs 1–3, those called up must be fit for field and
tropical service. Individuals with homosexual tendencies, or who were
punished for high treason, or have been ordered to be held in custody
for security reasons, or to be castrated are not to be called up. For
those unfit to serve who have been sentenced to and have served up
to 1½ years in the penitentiary and have otherwise served sentences
for only minor offenses, the restoration of military worthiness will
continue as a rule through the pardon channels. These may, as usual,
be placed in various units of the army.
The measures necessary in the administration of justice according to
this order are put into effect--
Pardon proceedings instigated by the local recruiting authorities on
behalf of those sentenced who belong to the age groups of 1908 and
younger will not as a rule be continued. The armed forces replacement
offices concerned will be informed by the pardoning authorities, to
desist from further processing of these requests by order of the High
Command of the Armed Forces. Exceptions are proceedings against those,
who have been sentenced up to 1½ years’ penitentiary (see above). These
proceedings will be acted upon in the manner heretofore customary, and
if need be, presented to the Reich Minister of Justice for decisions.
The attorneys general will issue a report on the number of convicts who
are still in confinement who come under this category for induction.
They will simultaneously compile lists which will contain personal
particulars of those persons sentenced (name, birth-date and town,
occupation, sentence, expiration date, behavior, etc.). The list will
be sent to the army office concerned. The named prisoners will await
the army’s call.
_II. SPECIAL COMMANDOS IN THE EAST_
The Reich Marshal has expressed the wish to have convicts made
available to be used as special commandos in the East, and to carry
out sabotage behind the enemy’s lines. He refers to convicts who
strayed off the straight and narrow and have not committed especially
dishonorable deeds, for whose person and deed one may have human
understanding. Especially suited are poachers who out of a passion for
hunting have trespassed, and smugglers who have risked their lives in
battle on the borders against the custom officials.
The poachers are already being turned over to the Reich Leader SS for
special duties. The number of smugglers who come under consideration
is exceptionally small. A telephonic questioning of the 13 district
attorneys located on the borders of the Reich, disclosed only 2
suitable smugglers in confinement and three are being investigated.
In the case of the latter, the citizenship is doubtful. There are no
similar groups of convicts for this task who could make any difference
in amounts. Under these circumstances it appeared practical to give
the attorneys general the general task of obtaining the convicts,
appropriate for this purpose, and reporting them. Prerequisites are,
voluntary enlistment, physical fitness for military service, age 18 to
45 years, confinement of at least 1 year for a deed not especially
dishonorable. The following are exceptions:
_a._ Foreigners, stateless persons, those of non-German blood.
_b._ Persons who have been punished because of homosexuality or
high treason, or against who imprisonment for security reasons or
castration has been ordered.
The appropriate request to the attorneys general has been made. The
reports are expected before 25 October 1942. They are being checked in
the Reich Ministry of Justice. The names of those convicts appearing
suitable according to this will be made known to the Reich Marshal.
Insofar as they fulfill also the prerequisites for induction into the
Africa Brigade, a corresponding reference will be necessary.
_III. DELIVERY OF ASOCIAL CONVICTS_
[Asoziale Strafgefangen]
Persons in penal institutions designated as asocial persons by judicial
decision are to be turned over to the Reich Leader SS.
1. _Persons in custody for reasons of security_--Persons in
custody for reasons of security who are in German penal institutions
will be put at the disposal of the Reich Leader SS. The execution of
sentence will be regarded as interrupted by the delivery.
In detail the following principles should govern proceedings:
_a._ Persons under court martial sentences will not be delivered.
Prisoners sentenced by former Polish courts or by courts of the
Government General, will be transferred; before this, however,
agreement with the Governor General will be obtained. The workhouse
according to Austrian law is not equivalent to security custody
[Sicherungsverwahrung].
_b._ Whether women are also to be delivered is still doubtful.
This question will be discussed with SS Gruppenfuehrer Streckenbach. In
this regard it will have to be a fundamental point from the beginning
that in the case of female Poles, Jews, and gypsies no doubt about the
delivery can exist.
_c._ Foreigners are not affected. Poles, Russians, Ukrainians,
Jews, gypsies do not rank as foreigners, however, Latvians, Estonians,
do. Czechs sentenced by German courts will be handled like Germans.
_d._ The sick will be delivered, as soon as they are able to be
transported. The question whether prisoners in penal institutions
who according to the opinion of the institution are insane should be
delivered will be discussed with SS Gruppenfuehrer Streckenbach.
_e._ The delivery of persons in custody for security reasons
will take place as a matter of basic principle also in the case of
such prisoners who on account of age or for other reasons no longer
seem dangerous. An exception will be made only in the case of persons
in security custody, in whose case the institution is convinced that
because of their favorable development they can be released within
a predictable time. These cases will be laid before section XV for
individual checking.
_f._ Persons sentenced who are still serving penitentiary
sentences, but who in addition have been sentenced to security custody,
will be put at the disposal of the Reich Leader SS.
_g._ When delivering prisoners it must be taken into account that
the production of industries important to defense should suffer no
stoppages. Insofar as necessary workers to replace them must be trained
first.
_h._ The question, to whom the delivery will be made, will be
discussed with SS Gruppenfuehrer Streckenbach.
_i._ In the immediate future only persons who have received
final judgment will be taken; the decision on future sentences is in
abeyance. For the reception of persons sentenced later, individual
institution will be designated, the number of which is to be limited as
much as possible.
2. _Jews, gypsies, Russians, and Ukrainians_ will be delivered to
the Reich Leader SS without exception.
3. _Poles_--Ethnic Poles who are subject to the Polish criminal
law regulations or have been delivered to the Polish penal authorities
and who have more than 3 years’ sentence to serve will be delivered to
the Reich Leader SS.
Poles with smaller sentences will remain in custody of the prison
system. After serving their sentences they will be reported by name to
the police just the same.
4. _Penitentiary prisoners_--Penitentiary prisoners of the German
and Czech ethnic groups, who are sentenced to a punishment of over 8
years, will be individually checked to see whether they are according
to their personality, asocial, i.e., whether they will be worthless
forever to the nation. If the answer to this question is affirmative,
they will be delivered to the Reich Leader SS.
The check-up will be undertaken in section XV (Vice President of the
People’s Court Engert, Oberregierungsrat, Hupperschwiller, Chief Public
Prosecutor Meyer). Vice President Engert will regulate the technical
execution. The decisions in individual cases are incumbent upon him.
Special cases will be reported to the Reich Minister of Justice.
The guiding principles for those in security custody (III, 1) are
valid, and furthermore the following is to be observed in this regard.
On the treatment of Czechs sentenced by courts in the Protectorate
a conversation with the Reich Protector is necessary. The question
whether Alsatians and Lorrainers who have been sentenced in Alsace and
Lorraine should be taken must be cleared by negotiation with the chiefs
of the civil administration.
Persons originally sentenced to death whose sentences have been
commuted to penitentiary sentences over 8 years fall under the scope
of the action, insofar as they are regarded as asocial. Under this
requirement those sentenced persons are also included who have close
relatives in the field, and prisoners for whom, because of their
commitment in the removal of aerial bombs, a later commutation is
contemplated.
On the treatment of persons sentenced who are lodged in curative or
medical institutions, negotiations with SS Gruppenfuehrer Streckenbach
must be undertaken.
[typed] Signed: DR. CROHNE
13 October
TRANSLATION OF DOCUMENT NG-558
PROSECUTION EXHIBIT 143
LETTER FROM REICH MINISTER OF JUSTICE THIERACK TO BORMANN, 13 OCTOBER
1942, CONCERNING THE “ADMINISTRATION OF JUSTICE AGAINST POLES,
RUSSIANS, JEWS, AND GYPSIES”
T 459
The Reich Minister of Justice
Berlin, 13 October 1942
[Handwritten] Dispatched 13/10.
[Initials] KUE [Kuemmerlein]
To Reichsleiter Bormann
Fuehrer Headquarters
Subject: Administration of criminal justice against Poles, Russians,
Jews, and gypsies
Dear Reichsleiter:
With a view to freeing the German people of Poles, Russians, Jews, and
gypsies, and with a view to making the eastern territories incorporated
into the Reich available for settlements of German nationals, I intend
to turn over criminal proceedings against Poles, Russians, Jews, and
gypsies to the Reich Leader SS. In so doing I work on the principle
that the administration of justice can only make a small contribution
to the extermination[361] of members of these peoples [Angehoerige
dieses Volkstums auszurotten]. Undoubtedly the administration of
justice pronounces very severe sentences on such persons, but that is
not enough to constitute a material contribution toward the realization
of the above-mentioned aim. Nor is any useful purpose served by keeping
such persons in German prisons and penitentiaries for years, even if
they are utilized as labor for war purposes as is done today on a large
scale.
I am, on the other hand, of the opinion that considerably better
results can be accomplished by surrendering such persons to the
police, who can then take the necessary measures unhampered by any
legal criminal evidence. I start from the principle that such measures
seem entirely justified in wartime, and that certain conditions which
I consider essential are fulfilled. These conditions consist in the
prosecution of Poles and Russians by the police only if they resided
until 1 September 1939 in the former state territory of Poland or the
Soviet Union; and secondly, that Poles who were registered as being
of German descent will continue to be subjected to prosecution by the
administration of justice as before.
On the other hand, the police may prosecute Jews and gypsies
irrespective of these conditions.
But no changes whatsoever are to be made in regard to the prosecution
of other foreign nationals by the administration of justice.
The Reich Leader SS, with whom I discussed these views, agrees with
them. I also informed Dr. Lammers.
I submit this matter to you, dear Reichsleiter, with the request to let
me know whether the Fuehrer approves this view. If so, I would then
make my official recommendations through Reich Minister Dr. Lammers.
[Handwritten] After one week.
[Initial] Kue [Kuemmerlein] 10/19, 10/26
Heil Hitler!
yours
[Initial] TH [Thierack]
PARTIAL TRANSLATION OF DOCUMENT NG-787
PROSECUTION EXHIBIT 507
LETTER OF THE REICH MINISTRY OF JUSTICE TO LEADING JUDGES AND
PROSECUTORS, 4 APRIL 1944, TRANSMITTING A REPORT OF THE REICH
STATISTICAL BUREAU ON “CRIMINALITY IN THE GREATER GERMAN REICH IN THE
YEAR 1942,” EXCLUSIVE OF CASES HANDLED BY THE PEOPLE’S COURT
The Reich Minister of Justice
_4206 III a-4-446_
Berlin W 8, 4 April 1944
Wilhelmstrasse 65
Phone: 110044
out of town: 116516
To the Presidents of the Reich Supreme Court and the
People’s Courts
To the Presidents of the Districts Courts of Appeal and the
Chief Reich Prosecutors
at the Reich Supreme Court and the People’s Court,
as well as the Public Prosecutors at the Courts of Appeal
Subject: Development of criminality
1 enclosure: 1 copy each of the enclosed report regarding
criminality in the Greater German Reich in the year 1942
I am enclosing one copy of the report regarding criminality in the
Greater German Reich. Please acknowledge and treat confidentially.
By order:
[Typed] Signed: GRAU
Certified: [Signed] SEEMANN
[Stamp] Judicial Clerk
Reich Ministry of Justice
Ministerial Chancellery
[Handwritten] To Under Secretary Dr. Klemm
Reich Statistical Bureau
_Keep under lock and key_
_Only for official use._
_Publication not permitted_
_Criminality in the Greater German Reich in the year 1942_
_1. Total result_
Since 1 January 1942 the Reich statistics of criminality comprise
territorially the area of the Greater German Reich with the exception
of the Alpine and Danube Gaue where the criminal law of the Reich as
the exclusive basis of the statistics of criminality in the Reich,
has not yet been introduced in its totality. As to _persons_, the
statistics of criminality in the Reich enumerate separately--
_a._ German nationals and aliens (aliens too will be enumerated
separately from 1 January 1943 on).
_b._ Members of the Protectorate.
_c._ Poles and Jews sentenced on the basis of the Penal Ordinance
for Poles.
_d._ Other racial Jews.
Taking these individual groups together, a _total_ of 457,129 persons
were _sentenced_[362] with legally binding effect in the Greater German
Reich for crimes and offenses against laws of the Reich (not counting
sentences for crimes and offenses against laws of the Reich falling
under the jurisdiction of the People’s Court) that is, 9.4 percent more
than in the year 1941 (417,923). The number of persons _convicted_
with legally binding effect amounts to 417,001--91.2 percent of the
total number of persons accused; 1941 [amounted] to 377,072--90.2
percent. Punishment was inflicted on 372,502 persons convicted (1941:
346,105)--89.3 percent (91.8 percent) and punishment and corrective
measures on 2,449 (3,082)--0.6 percent (0.8 percent).
Of 29,305 (1941: 30,540) persons sentenced 6.4 percent (7.3 percent)
were _acquitted_. In addition corrective measures were decreed in
the case of 139 (134) defendants who were acquitted, in the case of 487
(495) corrective measures were decreed independently, and in the case
of 35 (54) persons a motion to decree corrective measures independently
was refused.
In 10,162 cases (2.2 percent) compared with 9,628 (2.3 percent) in the
previous year, _proceedings were quashed_ by the court.
In the year reported on 84,318--20.2 percent of the total number of
persons convicted, compared with 92,546--24.5 percent in the year 1941,
were persons who had been _previously convicted_ of crimes or
offenses against laws of the Reich.
Total number of persons convicted--
------------------------------------+---------------+---------------
| 1941 | 1942
+-------+-------+-------+-------
|Number |Percent|Number |Percent
------------------------------------+-------+-------+-------+-------
I. Crimes and offenses in violation | | | |
of the Reich Penal Code |232,888| 61.8 |240,473| 57.7
| | | |
II. Crimes and offenses in violation| | | |
of other laws of the Reich |144,184| 38.2 |176,528| 42.3
------------------------------------+-------+-------+-------+------
Thus, the proportion of crimes and offenses in violation of the Reich
Penal Code decreased from 1941 to 1942, whereas the proportion of those
in violation of other laws of the Reich increases as a result of the
growing number of violations of wartime penal legislation.
Detailed information concerning the extent of criminal acts in 1942,
_important for reasons of criminal policy as well as numerically_
compared with the previous year, is furnished in the chart [1] below.
-----------------------------+---------------------------+---------------------------
| 1941 | 1942
+--------------+------------+--------------+------------
| Total number | Persons | Total number | Persons
| of persons | previously | of persons | previously
| sentenced | convicted | sentenced | convicted
| | among them | | among them
-----------------------------+--------------+------------+--------------+------------
Sexual crimes and offenses | | | |
against morality | 13,591 | 4,544 | 10,588 | 3,074
Thereunder-- | | | |
Sodomy and bestiality | 3,963 | 1,522 | 2,790 | 936
Indecent assault on | | | |
persons under 14 | | | |
years of age | 4,374 | 1,364 | 3,415 | 964
Murder | 187 | 50 | 153 | 42
Manslaughter | 151 | 37 | 118 | 25
Abortion | 2,993 | 482 | 3,193 | 425
Slight, dangerous, and | | | |
serious bodily injury | 13,353 | 3,439 | 10,024 | 2,215
| | | |
Larceny, also in the case | | | |
of repeated offenses | 77,556 | 21,675 | 89,656 | 21,188
| | | |
Aggravated larceny, also | | | |
in the case of repeated | | | |
offenses | 12,192 | 3,936 | 15,587 | 3,776
| | | |
Embezzlement | 10,987 | 4,129 | 10,179 | 2,968
| | | |
Robbery, also in the case | | | |
of second offenders and | | | |
extortion equivalent to | | | |
robbery | 300 | 104 | 186 | 59
| | | |
Extortion | 512 | 182 | 353 | 102
| | | |
Receiving stolen goods, | | | |
also in the case of | | | |
repeated offenses | 10,956 | 2,329 | 14,778 | 2,619
| | | |
Simple fraud, also in the | | | |
case of repeated offenses | 16,258 | 8,005 | 12,551 | 5,266
| | | |
Forgery of Public Documents, | | | |
etc. | 8,052 | 2,075 | 9,952 | 2,069
| | | |
Arson | 121 | 23 | 119 | 20
| | | |
Major and minor crimes by | | | |
breach of official duties | 2,208 | 354 | 2,471 | 311
| | | |
Crimes and offenses against | | | |
the law concerning | | | |
dealings with food, etc. | | | |
(Adulteration of foods) | 3,433 | 668 | 2,801 | 557
| | | |
Law concerning fire arms | 1,626 | 304 | 1,317 | 206
| | | |
Law for the protection of | | | |
German blood and German | | | |
honor (race pollution) | 189 | 86 | 109 | 46
| | | |
Decree against people’s | | | |
parasites | 3,822 | 1,941 | 6,349 | 2,602
| | | |
Decree concerning Crimes of | | | |
Violence | 282 | 149 | 263 | 131
-----------------------------+--------------+------------+--------------+------------
Thus, we find an _increase_, to a more or less considerable
degree, in the following crimes: abortion (+6.7 percent), larceny
and aggravated larceny (+15.6 percent and +27.8 percent resp.), and
receiving of stolen goods (+34.9 percent). The three last named
criminal acts, the most important of which are directed against
property, constitute approximately 50 percent of all crimes and
offenses against the Reich Criminal Code recorded for this year. The
same offenses constituted only 43.2 percent of the total in 1941. Cases
of forgery of public instruments also show an increase (+23.6 percent),
partly in consequence of the forging of the numerous identity cards and
papers necessitated by the government control of economy. Offenses by
breach of official duties, likewise, have increased in number (+11.9
percent). The increase of cases pertaining to the decree against
people’s parasites is particularly noticeable (+66.1 percent).
On the other hand, all categories of sexual crimes have _decreased_ in
number (-22.3 percent), particularly unnatural sexual offenses (-29.6
percent) and indecent assault on persons under 14 years of age (-21.9
percent). Decreases are also recorded for the various types of willful
bodily injury (-24.9 percent), for the two capital crimes, murder and
manslaughter (-18.2 percent and -21.9 percent resp.), among the crimes
against property, embezzlement (-7.4 percent), for both robbery and
extortion equivalent to robbery (-38 percent) as well as extortion
(-31.1 percent) to a considerable extent, and, furthermore, for fraud
(-22.8 percent). The decline in the number of convictions arising from
crimes of violence (-6.7 percent) is also notable.
_Sentences_ imposed in 1942 (1941) (this covers both fines and
imprisonment) are as follows: 2,199 (1,085) death sentences, 20,104
(15,981) limited sentences of penitentiary [Zuchthaus] (including
severe penal camp), 194,386 (162,768) sentences of imprisonment
(including ordinary penal camp) and 162,158 (170,254) fines.
A comparison between this and last year’s criminal statistical data
for individual groups cannot be drawn because of the introduction of
a revised system of enumeration, previously mentioned, that went into
effect 1 January 1942. Until then the Reich criminal statistics had not
yet provided such an analysis of individual groups.
_2. Ethnic members of the German national community and foreigners_
_a._ Sentences
In 1942 a total number of 378,670 persons, both ethnic members of
the German national community as well as foreigners were legally
sentenced within the Greater Reich for crimes and offenses against
Reich laws (not including sentences for crimes and offenses against
Reich laws falling within the jurisdiction of the People’s Court).
Of these, 341,540, or 90.2 percent were legally _convicted._
Penalties alone were imposed on 297,324, or 87.1 percent of those
convicted, whereas both penalties and measures of security and reform
were imposed on 2,332 or 0.7 percent. The number of convicted persons,
punishment for whom was set aside in accordance with the juvenile court
law amounts to 2,911 or 0.8 percent. However, for the vast majority
of these cases measures of reform were ordered and these amounted
to 10,233 according to this year’s record. Juvenile detention was
ordered in the case of 37,717 defendants, which means 11 percent of all
convicted ethnic members of the German community (and foreigners), and
71.9 percent of the total number of juveniles within this particular
group who were subject to a penalty. In addition, prison sentences of
indefinite duration were imposed on 1,256 juveniles.
For the recorded year 26,544 defendants or 7 percent of the total
number, were acquitted. Besides, in 135 instances acquittal was granted
along with measures of security and reform, in 475 cases such measures
alone were imposed, and in 35 cases motions for measures of security
and reform were rejected.
_Proceedings_ were _quashed_ by courts in 9,941 cases, representing 2.6
percent of the total of persons brought to trial.
212,410 or 62.2 percent of the total of convictions of German nationals
(including foreigners) in 1942, represent crimes and offenses in
violation of the Reich Penal Code and 129,130 or 37.8 percent represent
crimes and offenses in violation of other laws of the Reich.
_b._ Personal Data on Convicted Persons
Of convicted German nationals (and foreigners) 116,754 or 34.2
percent in 1942, were _female_ and 52,423 or 15.3 percent were
_juveniles_ (ranging in age from 14 to 18). The age group of 18
to 21, normally representing the heaviest criminal quota, participates
in the total of convictions only with a number of 34,401 delinquents
or 10.1 percent, due to the drafting of many of these age brackets.
The number of persons already _previously convicted_ for crimes
and offenses against laws of the Reich amounts to a total of 77,322 or
22.6 percent of whom 18,478 or 23.9 percent had more than 4 previous
convictions. 36,419 of the convicted persons or 10.7 percent were
foreigners, of whom 3,064 or 8.4 percent represented juveniles.
_c._ Individual Criminal Acts
Chart 1 A[363] affords a view into the criminal structure of 1942.
According to this, the various acts of theft form, as previously, the
greater part of the total of convictions (91,476 or 43.1 percent; all
of whom are persons convicted for crimes and offenses in violation of
the Reich Penal Code). If one disposes of insult as a petty and civil
offense (13,516 or 6.4 percent), there follows--though at a greater
interval--the other two significant offenses against property, i.e.,
fraud (11,567 or 5.4 percent) and receiving stolen goods (12,115 or
5.7 percent). The fifth place is accorded to sexual offenses (10,205
or 4.8 percent) among which the indecent assaults on persons under
14 as well as sodomy and bestiality (32.7 percent and 26.2 percent
resp.) represent comparatively the greater share of all sexual crimes
and offenses. Then follow again two offenses against property, i.e.,
embezzlement (9,328 or 4.4 percent) and forgery of documents (8,628 or
4.1 percent).
In major crimes, murder participates with 117 convictions; manslaughter
with 101, and robbery together with extortion equivalent to robbery
with 147 delinquents.
If one arranges the above discussed, numerically significant criminal
acts in accordance with convicted _adults_ and _juveniles_
the following results: Of the total number of adult and juvenile
persons convicted for crimes and offenses in violation of the Reich
Penal Code, the percentage is as follows:
--------------------------------+----------+------------
| Adults | Juveniles
--------------------------------+----------+------------
Petty larceny | 33.8 | 49.3
Aggravated larceny | 3.8 | 17.5
Embezzlement | 4.8 | 2.7
Receiving stolen goods | 6.4 | 2.5
Fraud | 6.0 | 2.8
Forgery of Public Documents | 4.1 | 3.8
Sexual crimes and offenses | 4.7 | 5.1
--------------------------------+-----------------------
In petty and aggravated larceny together, the number of crimes
represent approximately two-thirds for juveniles and slightly less than
four-tenths for adults.
Due to enactment of laws pursuant to war exigencies, the following
other crimes and offenses deserve mentioning: They are arranged in
order of the number of their convictions.
Persons
convicted
with legally
binding
effect
Penal ordinances relating to the rationing of
consumer goods of 5 April 1940 18,565
Decree amending the penal code for the protection of
the military power of the German nation of 25
November 1939 9,263
Amongst them: prohibited contact with prisoners of
war (article 4) 9,103
War Economy Decree of 4 September 1939 8,097
Decree against people’s parasites of 5 September 1939 5,029
Decree, subject: special measures concerning foreign
broadcasts of 1 September 1939 985
Decree relating to crimes of violence of 5 December
1939 194
_d._ Sentences pronounced
Chart No. 2[364] gives the particulars about the _sentences
pronounced._
According to it, in 1942, 1,061 _death sentences_ were pronounced,
among them 18 against juveniles. 15,830 defendants were sentenced to
terms in _penitentiary for definite periods of time_, of them
6,543 or 41.3 percent to a period of 3 years and more, 56 terms in
penitentiary for a definite period of time were pronounced against
juveniles.
Of the total number of _terms of imprisonment_ amounting to
143,685--in the year reported on short-term sentences formed 41.5
percent of them, these of medium length 47.3 percent, long-term
imprisonments 10.3 percent, and these of undefined length 0.9 percent.
_Fines_ were imposed in 141,464 cases. Detention was pronounced in
378 cases.
In 1942 juvenile arrest was pronounced against 37,717 juveniles, i.e.,
against 71.9 percent of the total number of juvenile delinquents, among
them were 25,562 arrests or 67.8 percent for a definite period of time.
The proportion of chronologically defined terms of imprisonment of more
than 2 weeks to the total number of arrests is 51.5 percent. 12,155 or
32.2 percent of the juveniles were sentenced to weekend incarceration,
and among them 23.6 percent to the loss of three and four of their
weekly off-times.
Of the _protective and reformative measures_ described in article
42a of the Reich Penal Code, the following have been decreed with
legally binding effect in 1942:
Placing into a lunatic asylum 906
Placing into a reformatory institution for alcohol addicts 90
Placing into a workhouse 400
Protective custody 1,414
Sterilization of dangerous sexual offenders 152
Ban on the exercise of trade or profession 298
In greater detail in the period reported on protective and reformative
measures were decreed e.g., in the case of convictions for indecent
assault on persons under 14 years of age; 232 times or 7.0 percent of
the persons convicted for the offenses in question; for repeated petty
larceny, 334 times or 7.4 percent; for repeated aggravated larceny,
195 times or 25.1 percent; and for repeated fraud, 271 times or 20.2
percent.
_3. Other Groups of Persons_
The following gives detailed particulars concerning the number of
Protectorate Nationals, Poles and Jews, as well as racial Jews brought
to trial in Greater Germany (exclusive of the Alpine and Danube Gaue)
in 1942.
-----------------------------------------+-------------+---------+------
|Protectorate | Poles |Racial
| Nationals |and Jews | Jews
-----------------------------------------+-------------+---------+------
Persons brought to trial | 13,060 | 63,786 | 1,613
Juveniles brought to trial | 482 | 5,169 | 44
Percentage of persons brought to trial | 3.7 | 8.1 | 2.7
| | |
Convicted persons | 12,117 | 61,836 | 1,508
Percentage of persons brought to trial | 92.8 | 96.9 | 93.5
| | |
Acquitted | 871 | 1,816 | 74
Percentage of persons brought to trial | 6.7 | 2.8 | 4.6
| | |
Persons previously convicted | 2,493 | 4,237 | 266
Percentage of total convicted | 20.6 | 6.9 | 17.6
Persons with more than 4 previous | | |
convictions among these | 766 | 593 | 43
Percentage of previously convicted | 30.7 | 14.0 | 16.2
-----------------------------------------+-------------+---------+------
The figures given above concerning the _convictions_ of Poles and Jews,
refer exclusively to convictions according to the Penal Ordinance for
Poles, that is to say, mainly to such crimes which have been committed
in the Incorporated Eastern Territories. However, crimes are also
included which have been committed in other districts of the German
Reich by Jews and Poles, who on 1 September 1939 had their residence or
permanent abode in the territory of the former Polish state (No. XIV of
the Penal Ordinance for Poles).[365]
Contrary to expectations, the _quota_ of Poles and Jews _previously
convicted_ is low; this can first of all be explained by the fact that
some of the criminal records were destroyed in the eastern territories;
furthermore that during the fighting in autumn 1939, the Poles opened
the doors of the penitentiaries and released dangerous criminals who,
in most cases, turned criminals again and were brought before the
German summary courts; a great number of those retaken, against whom
fresh violations of the law could not directly be proved, were sent
to concentration camps as a preventive measure. In both instances,
therefore, persons who had previous convictions were thus omitted
from the census of criminal statistics. Taking these points into
consideration, the quota of Poles and Jews previously convicted has
still to be regarded as comparatively high.
Particulars concerning the most important _punishable_ actions,
committed by the above mentioned groups of persons which have led to a
conviction, can be obtained from chart I B.
With regard to the penalties imposed upon them by the courts a total
of 1,138 Protectorate Nationals, Poles, and Jews, as well as Jews by
race were sentenced to death during the current year according to chart
2. These figures include 930 Poles and Jews sentenced under the crimes
ordinance for Poles. The total number of penal servitude sentences,
imposed for limited periods of time, against Protectorate Nationals and
Jews by race amounts to 2,237 and the jail sentences amount to 7,321.
By virtue of the criminal ordinance for Poles the sentence of penal
camp for hard labor was imposed in 2,017 cases and that of regular
penal camp in 43,180 cases.
The total _fines_ imposed, amount to 20,694.
85 defendants had their _property confiscated_.
* * * * * * *
_Chart 2_
_Punishments meted out in the year 1942
on account of crimes and offenses against Reich laws_
---------------------------+----------------------------------------------
| Punishments[366] meted out to--
|
+----------------+------------+---------+------
Sentences |German Nationals|Inhabitants |Poles[367]
|(and Foreigners | of the | and |Racial
| Total of this |Protectorate| Jews | Jews
| total to | | |
| juveniles | | |
---------------------------+--------+-------+------------+---------+------
| | | | |
Death sentences | 1,061 | 18 | 186 | 930 | 22
| | | | |
Penal servitude sentences: | | | | |
For life | | | | |
For a certain length of | | | | |
time, in toto | 15,850 | 56 | 2,112 | | 125
For less than 3 years | 9,307 | 18 | 1,294 | | 56
For 3 years and more | 6,543 | 38 | 818 | | 69
| | | | |
Total of jail sentences |143,885 | 9,695 | 6,875 | | 646
Of them-- | | | | |
For less than 3 months | 59,736 | 2,520 | 2,595 | | 348
For 3 months up to | | | | |
1 year | 88,012 | 5,315 | 3,020 | | 218
For one year and more | 14,881 | 504 | 1,051 | | 80
For an undetermined | | | | |
length of time | 1,256 | 1,256 | 9 | |
| | | | |
Severe penal camp total of | | | | |
sentences imposed | | | | 2,017 |
Of them-- | | | | |
For less than 5 years | | | | 1,257 |
For 5 years or more | | | | 760 |
| | | | |
Ordinary penal camp total | | | | |
of sentences imposed | | | | 43,180 |
Of them-- | | | | |
For less than 1 year | | | | 32,540 |
For 1 year or more | | | | 10,640 |
| | | | |
Confiscation of property | | | 4 | 78 | 3
| | | | |
Fines |141,464 | 2,021 | 3,037 | 16,939 | 718
| | | | |
Confinement in a fortress | | | | |
| | | | |
Arrest | 378 | 31 | 54 | | 4
| | | | |
Arrest of juveniles in | | | | |
toto | 37,717 |37,717 | 134 | |
namely: for a certain | | | | |
period in toto | 25,562 |25,562 | | |
of this, for more than | | | | |
2 weeks | 13,165 |13,165 | | |
| | | | |
Total of weekend | | | | |
imprisonments | 12,155 |12,155 | | |
Of this, [those with] | | | | |
3 and 4 pass privileges| 2,866 | 2,866 | | |
---------------------------+--------+-------+------------+---------+------
PARTIAL TRANSLATION OF DOCUMENT NG-715
PROSECUTION EXHIBIT 112
THIRTEENTH REGULATION UNDER THE REICH CITIZENSHIP LAW,
1 JULY 1943[368]
1943 REICHSGESETZBLATT, PART I, PAGE 372
Under article 3 of the Reich Citizenship Law of 15 September 1935
(Reichsgesetzblatt I, p. 1146), the following is ordered:
Article 1
1. Criminal acts committed by Jews shall be punished by the police.
2. The decree concerning penal law for Poles
[Polenstrafrechtsverordnung] of 4 December 1941[369] (Reichsgesetzblatt
I, p. 759) shall no longer apply to Jews.
Article 2
1. The property of a Jew shall be confiscated by the Reich after his
death.
2. The Reich may, however, grant compensation to the non-Jewish legal
heirs and persons entitled to sustenance who have their domicile in
Germany.
3. This compensation may be granted in the form of a lump sum, not
to exceed the ceiling price of the property which has passed into
possession of the German Reich.
4. Compensation may be granted by the transfer of titles and assets
from the confiscated property. No costs shall be imposed for the legal
processes necessary for such transfer.
Article 3
The Reich Minister of the Interior with the concurrence of the
participating supreme authorities of the Reich shall issue the legal
and administrative provisions for the administration and enforcement
of this regulation. In doing so he shall determine to what extent the
provisions shall apply to Jewish nationals of foreign countries.
Article 4
This regulation shall take effect on the seventh day of its
promulgation. In the Protectorate Bohemia and Moravia it shall apply
where German administration and German courts have jurisdiction;
article 2 shall also apply to Jews who are citizens of the Protectorate.
Berlin, 1 July 1943
The Reich Minister of the Interior
FRICK
Chief of the Party Chancellery
M. BORMANN
Reich Minister of Finance
COUNT SCHWERIN VON KROSIGK
Reich Minister of Justice
DR. THIERACK
PARTIAL TRANSLATION OF DOCUMENT NG-151
PROSECUTION EXHIBIT 204
SELECTIONS FROM CORRESPONDENCE PRECEDING ISSUANCE OF THIRTEENTH
REGULATION UNDER REICH CITIZENSHIP LAW, 3 AUGUST 1942–21 APRIL 1943,
INVOLVING LIMITATIONS UPON LEGAL RIGHTS OF JEWS, THEIR PUNISHMENT BY
POLICE, AND RELATED MATTERS[370]
1. Letter from the Reich Ministry of Justice to several leading
Reich authorities, 3 August 1942
Direct Reich Chancery 10939 B
Reich Minister of Justice
III a-2 1637 42 1506/5
Carbon Copy
Berlin W 8, 3 August 1942
_Urgent Letter_
To the
_a._ Reich Minister of the Interior
_b._ Reich Leader SS and Chief of the German Police
_c._ Reich Minister for People’s Enlightenment and Propaganda
_d._ Foreign Office
_e._ Chief of the Party Chancellery, Munich
_f._ Reich Protector for Bohemia and Moravia
Subject: Restriction of legal rights [Rechtsmittel][371] for Jews in
criminal cases
1 Enclosure
Enclosed I submit the draft for an ordinance concerning the restriction
of legal rights for Jews in criminal cases with the request to state
your opinion in regard to it.
_I_ have emphasized the importance in war of this ordinance,
because it indirectly serves national defense. The dissatisfaction
which is apparent in wide circles of the German population with regard
to the fact that legal rights in criminal cases are still afforded to
Jews and that they are still given the right to appeal to the courts
in cases of sentences inflicted by the police is liable to weaken the
determination of the German people to defend itself in this contest
which has been imposed on it.
As Deputy:
[typed] signed: DR. FREISLER
2. Draft enclosed with the letter of the Reich Ministry of Justice
of 3 August 1942
_Copy_
[Handwritten] 1508/05
_Ordinance concerning the restriction of legal rights for
Jews in criminal cases_
Of....................1942
The Ministerial Council for the defense of the Reich decrees with force
of law:
Article 1
Jews are not entitled to make use of the right of appeal, revision
(appeal for nullification pursuant to the former Austrian law which has
remained in force), and complaint against decisions in criminal cases.
Jews cannot appeal to courts for a decision against sentences inflicted
by the police.
In cases where an appeal for legal rights has been filed already or
a decision by a court proposed at the time this ordinance is being
enforced, those are considered as cancelled.
Berlin,....................1942
The President of the Ministerial Council for
the Defense of the Reich,
[Handwritten] GFM [General-Feldmarshall]
Reich Minister and Chief of the Reich
Chancellery
To IIIa-2 1637.42 344528
3. Letter from the Reich Ministry of the Interior to the Reich Ministry
of Justice, 13 August 1942
Reich Chancery 11452B 15 August 1942 [Initial] FI [Ficker]
Reich Minister of the Interior
Berlin, 13 August 1942
NW 7, Unter den Linden 72
Telephone: 12 00 34
12 00 37
Ib 1200/42 1508/06
7035
Use this reference in your reply. Reference 15/8
_Urgent Letter_
S.Ang. of 21/8
To the Reich Minister of Justice
Subject: Restriction of legal rights for Jews
Referring to your letter of 3 August 1942 RK. 11405 B im Gg.
1b-III-2 1637.42
The same considerations which have prompted your suggestion to deny
legal rights to Jews in criminal cases also apply to administrative
matters. I would like to ask you, therefore, to extend the draft of
an ordinance concerning the restriction of legal rights for Jews in
criminal cases at the same time also to administrative matters, giving
it about the following tenor:
Ordinance concerning the restriction of legal rights for Jews
Of....................1942.
The Ministerial Council for the Defense of the Reich decrees with force
of law:
Article 1
Jews are not entitled to make use of the right of appeal in criminal or
administrative cases.
They cannot appeal, as is otherwise admissible, to the courts for a
decision against a decision taken.
Nor can they enter a protest which otherwise might be admissible.
Article 2
In cases where an appeal for legal rights or a protest has been filed
already they are considered as canceled.
Article 3
This ordinance is enforced 7 days after its announcement. It is valid
also in the Protectorate of Bohemia and Moravia and the Incorporated
Eastern Territories.
Berlin,....................1942
The President
of the Ministerial Council for the
Defense of the Reich
Delegate General for the Reich Administration
Reich Minister and Chief of the Reich Chancellery
Copies to the supreme Reich authorities, except the Reich Minister of
Justice with the request to state their opinion by 21 August 1942, in
case of difference of opinion. Otherwise agreement will be assumed.
As deputy:
[signed] DR. STUCKART
4. Letter from the Reich Ministry of Justice, signed by the defendant
Schlegelberger, to the Reich Ministry for People’s Enlightenment and
Propaganda, 13 August 1942
The Acting Reich Minister of Justice Copy
III a 2 1706.42 Berlin, 13 August 1942
[Handwritten] 1508/06
_Urgent Letter_
To the Reich Minister for People’s Enlightenment and Propaganda
Berlin
Subject: Restriction of legal rights for Jews
Referring to urgent letter of 12 August 1942[372] R 1400/23.7.42/122/1.9.
I. I thought of meeting at first the most urgent need within the
compass of my sphere of activity, viz, that of adjusting the
administration of justice from a legal point of view, and moreover I
had prepared a corresponding draft for the other administration of
justice belonging to my sphere of activity. However, I did not want to
take the initiative to make suggestions concerning matters which are
beyond the sphere of my department.
_The draft enclosed in your urgent letter_ includes all supreme
authorities of the Reich, especially that of the Reich Minister
and all ministers whose sphere of work is connected with matters
of administrative law. While, as far as the sphere of activity of
these ministers is concerned I still adhere to the opinion that I
should refrain from making suggestions on my part, I declare that I
have no objections against an extension of my draft to matters of
administrative law and to decisions by administrative authorities.
II. 34529 114058
II. On the assumption that an extensive regulation of the situation of
the Jews with regard to legal and administrative decisions is desired,
it seems necessary to me that the question of the admissibility for
a Jew to _testify on oath_ be legally regulated too, and this
regulation had best be included in the same decree.
Therefore, I furthermore suggest that the decree should provide that
the Jew is not admissible to testify on oath. Thereby the taking of an
oath or the furnishing of an affidavit by Jews is in general impossible.
In my opinion, however, the fact that the Jew is not permitted to take
an oath should not make the Jew have a better legal position than the
person who is authorized to take an oath. Therefore, I further suggest
to include a regulation according to which the testimony of a Jew which
could have been made under oath--if it had been given by a person who
is permitted to take an oath--should be treated like testimony given
under oath as far as criminal cases are concerned. My idea in this
connection is that the chiefs of the supreme authorities of the Reich
should order administratively that it should be pointed out to the Jew
that he could be legally prosecuted if he commits an offense against
his duty to give true testimony, but I do not propose to make this a
prerequisite of being liable to punishment.
In my opinion, comprehensive settlement of the problem requires
furthermore the exclusion, for reasons of foreign policy, of all Jews
from the regulations of this decree who are citizens of a foreign
nation.
Therefore, under the assumption that the persons participating in the
comprehensive solution of the problem and those supreme authorities of
the Reich which are in charge of specialized sectors agree, I would
suggest to give the _following wording_ to the decree:
Decree concerning the restriction of legal rights for Jews and their
inadmissibility to take an oath.
dated....................1942
The Ministerial Council for the Defense of the Reich orders the
following to be enforced as a law:
Article 1
Jews are not entitled to lodge a plea for appeal, revision, and
complaint (nullity plea and appeal under the still valid parts of
Austrian law) against the decisions of the courts.
Jews cannot apply for a judicial decision against penal measures
inflicted by the police.
Article 2
Jews cannot make use of the legal rights provided against decisions
made by the administrative authorities.
Article 3
Insofar as legal right has already been exercised or an application for
legal decision has been requested when this law comes into effect, they
are considered to be withdrawn.
Article 4
Jews are not entitled to take an oath.
Article 5
The regulation concerning perjury and false oath applies to untrue
statements of Jews not made under oath, if a person entitled to take
an oath could have been sworn to this statement. In the same manner
the regulations concerning the making of a false declaration in lieu
of oath are to be applied to the untrue declaration of a Jew, if the
declaration was the substitute for a declaration in lieu of oath or a
statement with reference to such a declaration.
Article 6
The regulations do not apply to Jews who are citizens of a foreign
nation.
Article 7
The supreme authorities of the Reich are authorized to issue
regulations for the execution within their jurisdiction.
[Typed] signed: DR. SCHLEGELBERGER
344531
5. Letter from Reich Leader SS to Lammers, 25 August 1942
13/9 RK. 12020 B 27 August 1942 [Initial] FI [Ficker]
The Reich Leader SS
and
Chief of the German Police
in the Reich Ministry of the Interior
20/9
S IV B 4 b--Ref. No. 1268/42
Please quote above reference and date in reply.
[Handwritten] Submitted last to RM 11853 tz 1b
Berlin SW 11, 25 August 1942
Prinz-Albrecht-Strasse 8
Tel. 12 00 40
1508/7
_Urgent Letter_
To the Reich Minister and Chief of the Reich Chancellery
Berlin [Initial] L [Lammers] 30 August
Subject: Limitation of legal rights for Jews
Reference: Urgent letter of the Reich Minister for Popular
Enlightenment and Propaganda sent to you on 21
August 1942--R 1400/13 August 1942, 122--1,9.
Considering the fact that up to now, the competent authorities disagree
and that moreover a number of further questions must be regarded as
not clarified, I consider the suggestions which have been made up to
now as not yet arrived at a stage when they could be submitted to the
Ministerial Council for the Defense of the Reich, and for this reason
I have asked the Reich Minister of Justice to arrange for a discussion
for the clarification of these essential questions.
BY ORDER:
[Typed] Signed: SUHR
Certified:
[Illegible signature]
Employee of the Chancery
Resubmitted because of RM 11850 (marked red), Office 13/19
[Stamp]
The Reich Leader SS [Initial] F [Frick] Sept. 12
and Chief of the German Police
6. Letter from Martin Bormann to the Reich Ministry of Justice,
9 September 1942
_National Socialist German Labor Party_
Party Chancellery
The Chief of the Party Chancellery
Fuehrer Headquarters
9 September 1942.
III C-Do. 2425/0/1
_Copy_
To the Minister of Justice
Berlin W 8
Wilhelmstr. 65
Subject: Limitation of legal appeal for Jews. RM 11405 B
Reference: Your letter of 13 August 1942--III a _2_ 1706.42--.
The limitation for legal appeal for Jews proposed by you extends in
the sphere of court decisions only to the legal appeal in a limited
sense--that is to say to appeal, revision, and complaint. This
regulation does not represent a comprehensive solution of the problem,
since the Jews will still be given the possibility of making use of
legal aids [Rechtsbehelfen] in a wider sense.
The considerations which are decisive for your draft also apply to
almost all cases of “legal aids.” In criminal cases this applies above
all to objections against penal rulings and to pleas for resumption
of proceedings. In the sphere of civil law it would apply, e.g., to
reminders of cost and execution matters, objections to execution orders
and judgments by default, as well as to nullity and restitutions suits.
Also, a limitation of the admissibility of suits protesting against
executions and suits filed by a third party will have to be taken into
consideration, as in these cases, too, the result will be a legal aid
against a judicial decision. I think it necessary to include all those
cases too into the regulation.
I further request you to include into the draft a regulation declaring
inadmissible the declining of a judge by a Jew.
I have no objections against the provisions of the draft relative to
the disqualification of Jews to take an oath.
Heil Hitler!
[Typed] Signed: M. BORMANN
Certified copy:
[Signed] DOSER
7. Letter from the General Plenipotentiary for the Administration of
the Reich to a number of leading Reich authorities, 29 September 1942
_Copy_
RK. 136 2 B 29 Sept. 1942 [Initial] FI [Ficker]
The General Plenipotentiary
for the Administration of the Reich
GBV. 788/42
2425 [Handwritten] Last submitted RK 12853 B
Berlin, 29 September 1942
[Stamp] See document of 8.10.
_Urgent Letter_
To the:
Head of the Party Chancellery
The Reich Minister of Justice
The Reich Minister for People’s Enlightenment and
Propaganda
The Foreign Office
The Reich Minister of Finance
[Handwritten] Submitted with RK 442 B. attached October 2
Subject: Ordinance concerning legal restrictions to be imposed on
Jews
On the basis of a discussion of 25 September 1942 between the officials
in charge, a new draft of an ordinance concerning the restrictions
imposed on Jews in the proceedings before the administrative agencies
or courts has been drawn up under the title, “Ordinance concerning
Legal Restrictions to be Imposed on Jews.” Please let me know as soon
as possible your opinion about the enclosed new formulation.
If no reply has been received by 14 October, your consent will be taken
for granted.
This copy is forwarded for your information and with the request that
you take a decision by 14 October.
As deputy:
[Signed] _Stuckart_
Justice 1
To the other supreme Reich authorities
8. Draft of proposed decree enclosed with the letter of the General
Plenipotentiary for Reich Administration of 25 September 1942
Appendix to GBV 788/42--2425 25 September 1942
Draft of an Ordinance concerning Legal Restrictions to be imposed on
Jews of..............1942.
The Council of the Ministers for Reich Defense ordains with the force
of law:
Article 1
(1) Jews will have no right of appeal [Rechtsmittel] from the
decisions of administrative agencies and courts, nor other legal means
[Rechtsbehelfen] to attack the same. Should, at the time when the
present ordinance takes effect, an appeal already be lodged, it will be
treated as withdrawn.
(2) Other applications from Jews to the administrative agencies or
courts are admissible only insofar as the administrative agency or
court would be of the opinion that the consideration of the application
would be in the common interest.
Article 2
Jews cannot testify under oath.
Article 3
(1) The regulations concerning perjury apply to the untrue, unsworn
testimony of a Jew when the testimony could have been sworn to if it
had been made by a person capable of taking an oath.
(2) Similarly, the provisions concerning false assurances in lieu of
affidavits apply to a statement made by a Jew, if such a statement was
intended to replace an assurance in lieu of affidavit, or a deposition
made with reference to such an assurance.
(3) The Jew shall be warned that any such untrue deposition or false
statement will be punished according to those provisions.
Article 4
Statements of a Jewish party to the proceedings with respect to the
question whether a witness or expert should be put on oath, will be
disregarded.
Article 5
In the sentencing of Jews the provisions concerning the deprivation of
civil rights will not apply.
Article 6
Jews cannot challenge German judges on grounds of partiality.
Article 7
At the death of a Jew his fortune escheats to the Reich.
Article 8
The Reich Minister of the Interior in agreement with the supreme
Reich authorities in interest will issue the necessary legal and
administrative provisions for the implementation and amendment of the
present ordinance. He will hereby determine how far this ordinance is
to apply to Jews of foreign nationality.
Article 9
This ordinance will take effect on the seventh day after its
promulgation. It also will apply in the Incorporated Eastern
Territories. In the Protectorate of Bohemia and Moravia it will
apply within the limits of the German administration and the German
jurisdiction.
Berlin
The President of the Council of
Ministers for Reich Defense
The Plenipotentiary General
for Reich Administration
The Reich Minister and Chief of
the Reich Chancellery
9. Letter from the General Plenipotentiary for Reich Administration to
the Reich Chancellery, 3 April 1943
The General Plenipotentiary for Reich Administration
GBV 262/43
1508/10
2425
[Handwritten notes] RK 4482 E
RK 13672B 52 M
2 Enclosures
Berlin, 3 April 1943
To the Reich Minister and Chief of the Reich Chancellery
for Under Secretary Kritzinger
Subject: Ordinance concerning legal restrictions to be imposed on
Jews
With reference to today’s conference between Under Secretary Kritzinger
and Under Secretary Dr. Stuckart, I am forwarding herewith in
duplicate--
(1) the draft of the ordinance concerning the legal restrictions to be
imposed on the Jews.
(2) the copy of the letter of the Chief of the Security Police and SD
of 8 March 1943 (II A 2 No. 22 III/43 176--).[373]
BY ORDER:
[Signature illegible]
Justice 1
344545
10. Letter from Kaltenbrunner, Chief of the Security Police and the SD,
to Frick, 8 March 1943
The Chief of the Security Police and the SD Copy
II A 2 No. 22 III/43-176
Berlin SW 11, 8 March 1943
Prinz Albrecht-Strasse 8
_Urgent letter_
To the Reich Minister of the Interior,
Party member Dr. Frick
Berlin NW 7
Unter den Linden 72
My dear Reich Minister:
Upon request I have been informed by Department I that you have stopped
the passing of the ordinance concerning the legal restrictions to be
imposed on Jews, as in view of the development of the Jewish question,
you no longer consider this ordinance necessary.[374] May I therefore
point out the following views taken by the Security Police, which are
in favor of an immediate passing of the ordinance:
1. Previous evacuations of Jews have been restricted to Jews who were
not married to non-Jews. In consequence, the numbers of Jews who have
remained in the interior is quite considerable. As the ordinance
would also include these Jews as well, the measures it plans are not
objectless.
2. The provision of article 7 of the ordinance according to which at
the death of a Jew his fortune escheats in its entirety to the Reich
results in the accumulation of considerably less work for the State
Police. At the present time the procedure used by the State Police in
handling the confiscation of such Jewish inheritances must frequently
be modified to suit each special case. If the decree were decided on
these separate procedures would no longer need to be carried out. The
ordinance would therefore bring about an effective reduction in present
administrative activity.
3. The provision according to which the application of criminal law
against Jews is transferred from the judicial authorities to the
police, is based on an agreement between the Reich Leader SS and
the Reich Minister of Justice Dr. Thierack. This agreement has been
approved by the Fuehrer. For if it is to be put into practice it must
be embodied in the form of a law, as the present competence of justice,
which is based on criminal procedure, can only be modified by a legal
provision.
If the ordinance which is planned does not come into force, this
provision as it is planned must then be set down in an independent law
which, however, is undesirable.
I beg you to consider the above-mentioned views and to examine whether
in spite of them an immediate passing of the ordinance does not seem
indicated.
Heil Hitler!
Yours obediently,
[Typed] signed: DR. KALTENBRUNNER
344547
11. Note of the Reich Chancellery, 6 April 1943, 1508/11
(14./4.) _To RK. 13672 B_, 4482 E
Fuehrer Headquarters
[Handwritten] 1508/11 6 April 1943
1. _Note_--Under Secretary Stuckart asked me over the telephone
to obtain the opinion of the Reich Minister and Chief of the Reich
Chancellery as to the draft of the ordinance which had been sent him
with the accompanying letter of 3 April. As Under Secretary Stuckart
informed me, the Reich Minister of the Interior himself has his
doubts as to whether the ordinance is still necessary. When Stuckart
approached the Party Chancellery on the question, Reichsleiter Bormann
suggested that he should obtain the opinion of the Reich Minister and
Chief of the Reich Chancellery.
On 5 April I discussed the affair with Under Secretary Klopfer. The
latter is of the same opinion as myself, that with the exception
perhaps of articles 6 and 7 of the draft, the ordinance can be
dispensed with. As regards article 7 of the draft, Under Secretary
Klopfer took my point of view that the possibility must be considered
of directing the heritage of deceased Jews either in part or in its
totality to their non-Jewish relatives.
The Reich Minister, to whom I reported on 6 April, is of the opinion
that we should decline as far as possible from a settlement of the
matter by an ordinance.
In order to help on the affair I came to an agreement with Under
Secretary Klopfer and suggested to Under Secretary Stuckart that the
question of the further consideration of the draft should be raised at
a discussion in which, in addition to myself and him, Under Secretary
Klopfer and Under Secretary Rothenberger and the Chief of the Security
Police Kaltenbrunner should take part. Under Secretary Stuckart
agreed to this and suggested that the conference should take place on
Wednesday, 14 April, 11 o’clock.
2. RKabR. Dr. Ficker with the request for his consideration.
3. Resubmit 14 April (in Berlin).
[Initial] F [Ficker]
8 April
344549 [Initial] KR [Kritzinger]
12. Note of the Reich Chancellery, 21 April 1943
Reich Chancellery 4611 E [Handwritten] 1508/12
for files Rk. 4748 E Berlin, 21 April 1943
1. NOTE--The Under Secretary conference, suggested by us,
about the draft on a _decree concerning the limitation of the legal
right of Jews_, which was at that time completed in the Reich
Ministry of the Interior took place today at the office of Under
Secretary Stuckart. Under Secretary Rothenberger, Under Secretary
Klopfer, SS Gruppenfuehrer Kaltenbrunner, and I were present as well as
Under Secretary Stuckart.
The discussion showed that only articles 6 and 7 of the provisions of
the draft of the order are considered necessary in which connection
article 7 is to be supplemented by a regulation which makes possible,
in the case of a confiscation of property, a settlement in favor of
non-Jewish heirs and legal dependents.
It was furthermore considered suitable to have the regulation issued as
a supplementary ordinance to the Reich citizens’ law.
The regulation accordingly would approximately take the form as shown
in appendix II.
[Enclosure] Appendix II.
2. To the Reich Minister with request for consideration.
[Initial] L [Lammers] 28 April
3. RK ab R. Dr. Ficker, respectfully.
[Initial] KR [Kritzinger]
Justice 1 s.Rk 5761
344550
13. Draft of a decree concerning the Reich Citizenship Law, enclosed
with the note of the Reich Chancellery of 21 April 1943
[Handwritten] Supplement to the Reich Citizenship Law and
Appendix II
_Decree Concerning the Limitation of the Legal Rights of the Jews_
[Handwritten] 1508/13 dated................1943
(_Abbreviated Form_)
Article 1
1. Punishable offenses of Jews will be punished by the police.
2. The decree concerning the administration of penal justice against
Poles and Jews of 4 December 1941 (Reich Legal Gazette I, p. 759) no
longer applies to Jews.
Article 2
On the death of a Jew, his property is forfeited to the Reich.
[Handwritten] Hardship clause in favor of non-Jewish heirs and
legal dependents.
Article 4
The Reich Minister of the Interior, in agreement with the top Reich
authorities concerned, issues the legal and administrative regulations
which are necessary for the execution and supplementing of this
ordinance. In this case he determines how far this order applies to
Jews of foreign nationality.
Article 5
This ordinance will come into force on the seventh day after its
promulgation. It will also apply to the Incorporated Eastern
Territories. In the Protectorate of Bohemia and Moravia it will apply
to the sphere of German administration and German jurisdiction.
Article 2 also applies to Jews who are subjects of the Protectorate.
Berlin,............1943 344551
The President of the Ministerial Council
for the Defense of the Reich
The Plenipotentiary General for the
Reich Administration
The Reich Minister and Chief of
the Reich Chancellery
TRANSLATION OF DOCUMENT NG-1656
PROSECUTION EXHIBIT 535
DRAFT OF PROPOSED MEMORANDUM TO HITLER FROM MINISTRY OF JUSTICE, APRIL
1943, INITIALED BY DEFENDANT ROTHENBERGER AND MINISTERIAL DIRECTOR
VOLLMER, CONCERNING IMMINENT PROSECUTION OF A JEWESS FOR SELLING HER
MOTHER MILK TO A GERMAN PEDIATRICIAN
The Reich Minister of Justice
Information for the Fuehrer
(1943 No.)
After the birth of her child, a full-blooded Jewess sold her mother
milk [Muttermilch] to a pediatrician and concealed that she was a
Jewess. With this milk babies of German blood were fed in a nursing
home for children. The accused will be charged with deception [Betrug].
The buyers of the milk have suffered damage, for mother’s milk from a
Jewess cannot be regarded as food for German children. The impudent
behavior of the accused is an insult as well. Relevant charges,
however, have not been applied for, so that the parents, who are
unaware of the true facts, need not subsequently be worried.
I shall discuss with the Reich health leader the racial hygienic aspect
of the case.
Berlin,..............April 1943
(Referent: Ministerialrat Dr. Malzan)
To the Under Secretary
[Initial] R [Rothenberger]
[Initial] V [Vollmer] 19 April
TRANSLATION OF DOCUMENT NG-351
PROSECUTION EXHIBIT 132
SECRET JUDGMENT OF FIRST SENATE OF PEOPLE’S COURT CONCERNING TWO POLES,
21 MAY 1943, AND DIRECTIVE OF MINISTRY OF JUSTICE TO DEFENDANT LAUTZ
CONCERNING THE MANNER OF CARRYING OUT THE EXECUTION OF ONE OF THE
DEFENDANTS
9 J 190/420 Copy
1 H 110/43
SECRET!
In the Name of the German People
In the case against--
1. the porter Paul Stefanowicz, from Berlin, born 5 January 1922 in
Olyka (District of Rovno),
2. the laborer Franz Lenczewski, from Berlin, born 1 August 1924 in
Sandec (Government General), Poland, at present in custody pending
trial for treasonable intent, et cetera, the People’s Court, First
Senate, on the basis of the session of 21 May 1943, in which the
following participated as judges:
People’s Court Senior Judge Laemmle, President
District Court President Dr. Schlemann,
SA Gruppenfuehrer Haas,
SA Brigadefuehrer Hohm,
SA Gruppenfuehrer Koeglmaier,
as representative of the Chief Reich Prosecutor [the defendant Lautz]:
Local Court Judge Dr. Pilz,
found:
As Poles, the defendants harmed the interests of the Reich by leaving
their places of work in Berlin in August 1942 and going to the Reich
border, with the intention of remaining in Switzerland until the end of
the war.
The defendant _Stefanowicz_ is therefore condemned to death.
The defendant _Lenczewski_, since he acted under the influence of
Stefanowicz, who is mentally greatly superior to him, will receive a
sentence of 8 years in a penal camp, and the period of custody for
investigation will be included in this term.
_Findings_
Both defendants are ethnic Poles, were formerly Polish citizens, and on
1 September 1939 resided in the former Republic of Poland.
Both defendants reported for work and were assigned to work in Berlin;
Lenczewski in April 1941 in a chocolate factory, Stefanowicz in January
1942 at the Neukoelln hospital.
Of the two defendants, Stefanowicz makes a much more intelligent and
bold impression. He belongs to the Polish intelligentsia, which is the
stronghold of the Polish spirit of resistance. Consequently in March
1942 shortly after he began his work, he left his place of work and
attempted to flee to Denmark. He was arrested in Flensburg, however,
and after 2 months in a labor reformatory camp he was returned to
his place of work in Berlin. There he was noted for his anti-German
attitude. According to his own statement, the nurses threatened that
his attitude would bring him into the concentration camp one of these
days. It was Stefanowicz who persuaded the codefendant Lenczewski, who
is nearly 2 years younger and was at the time the deed was committed
barely 18 years old, to leave his place of work and escape with him to
Switzerland in order to live a more comfortable life there. They agreed
to escape on 2 August 1942.
On that day they left Berlin and went via Augsburg and Innsbruck to
Landeck/Tyrol. From there they went on foot toward the Swiss border,
with the intention of crossing the border secretly. In the mountains,
however, they suffered from bad weather, and on 6 August 1942 they were
arrested by a customs patrol in See (Tyrol), very close to the Reich
border.
The prosecution assumes that the defendants had the intention of
joining the Polish Legion. Both defendants, however, have denied this
from the beginning and maintain that they merely wanted to get better
working conditions in Switzerland. The assumption of the prosecution is
doubtless supported by the fact that members of the former Polish State
who wanted to join the legion have frequently been arrested at the
border under similar circumstances. On the other hand, no evidence has
been presented that the defendants were in contact with such circles.
As for their personality, neither of them gives an impression of a
fighter but rather an effeminate one, and the fact that they merely
wanted to go to Switzerland in order to live a better life there, could
not be disproved.
Nevertheless, as Poles, both of them have harmed the interests of the
German Reich by their conduct. For they were assigned to work in the
Reich, and in total warfare any loss in this regard harms the interests
of the Reich. They were aware of this fact, especially since they
intended to remain in Switzerland permanently and thus to deprive the
Reich of their work for the entire duration of the war (crime under
art. 1, par. 3 of the Regulation on Administration of the Penal Law
against Poles and Jews in the Incorporated Eastern Territories of 4
December 1941 (Reichsgesetzblatt 1, p. 759)).
The law provides the death penalty for this offense, as a rule. Only
in less severe cases can a prison sentence be imposed. The case of the
defendant Stefanowicz is not a less severe case. As already emphasized,
he belongs to the Polish intelligentsia, which is the stronghold of
the spirit of resistance. From the very beginning he failed to adapt
himself to the order prevailing in the Reich and once before made an
unsuccessful attempt to escape to Denmark. He is also responsible for
the fate of his codefendant Lenczewski, to whom he is mentally far
superior. He was therefore given the death sentence. On the other
hand, in the case of the defendant Lenczewski, who did not make a very
independent impression during the trial, who was very young at the
time the deed was committed, and who succumbed to the influence of his
mentally superior friend, a sentence of 8 years in a penal camp was
considered sufficient. The period of custody for investigation was
included in this term.
Under the law, the defendants have to bear the costs of the trial,
since they have been convicted.
[Signed] LAEMMLE [Signed] DR. SCHLEMANN
25 May 1943
_Carbon copy_
The Reich Minister of Justice Berlin, 7 August 1943
IV g 10a 4910 c/43 g
Urgent--Secret
The Chief Reich Prosecutor with the People’s Court,
Berlin
personally or to his deputy in office
Reference GJ 190/42g 30 July 1943
Enclosures:
1 volume
1 folder
1 decree of 5 August 1943 (fair copy)
1 certified copy of the decree
Referring to the proceedings against Paul Stefanowicz who was sentenced
to death on 21 May 1943 by the People’s Court, I send you a fair copy
and certified copy of the decree of 5 August 1943[375] with the request
to take the necessary steps with the greatest possible speed. The
executioner Reichhart is to be entrusted with the carrying out of the
execution. As to the delivery of the body to an institute according to
article 39 of the Reich Ordinance of 19 February 1939, the Anatomical
Institute of Munich University is to be taken into consideration.
Please refrain from publicity, either through the press or through
posters.
BY ORDER
[Typed] DR. VOLLMER[376]
PARTIAL TRANSLATION OF DOCUMENT NG-457
PROSECUTION EXHIBIT 201
OPINION AND SENTENCE OF THE NUERNBERG SPECIAL COURT, WITH DEFENDANT
OESCHEY AS PRESIDING JUDGE, 29 OCTOBER 1943, BY WHICH TWO FOREIGN
WORKERS WERE CONDEMNED TO DEATH[377]
Beg. f. H.V. Sg No. 256/1943
[Stamp]
The sentence is effective and must be executed.
Nuernberg, 3 November 1943
The Chief Registrar
of the Office of the District Court
Criminal Division
[Signed] RAMSENTHALER
Chief Court Clerk
_Sentence_
In the Name of the German People
The Special Court
for the area of the Nuernberg District Court of Appeal at the
Nuernberg-Fuerth District Court in the criminal case against Kaminska,
Sofie, farm laborer in Uffenheim and 1 other person charged with a
crime under part I, section 4 No. 1 of the Penal Ordinance for Poles
and Jews, at a public session on 29 October 1943 attended by--
Presiding judge--District Court President Oeschey;
Associate judges--Local Court Judge Dr. Pfaff and
District Court Judge Dr. Gros;
Public Prosecutor for the Special Court;
Public Prosecutor Markl, and as registrar of the office.
Court Clerk Kastner rules as follows:
Kaminska, Sofie; nee Uba, born on 1 September 1907 at Czenstocice,
widow, Polish farm laborer,
Wdowen Wasyl, born on 20 February 1923 at Zatwanica, single, Ukrainian
farm laborer,
both last residing in Uffenheim, both under arrest pending trial are
guilty: Kaminska slapped a German soldier, threatened him with a hoe,
and threw a stone after him; furthermore offered resistance to a
policeman when she was being arrested. Wdowen tried by force to prevent
Kaminska’s arrest.
They are therefore sentenced to death; Kaminska under articles II, III,
and XIV of the Penal Ordinance for Poles; Wdowen is sentenced as a
public enemy.
_Findings_
The defendant Kaminska, who belongs to the Polish ethnic group and who
on 1 September 1939 was residing in the territory of the former Polish
State, attended elementary school and after having finished school
worked as a laborer on several farms in Poland. She was married in 1929
and since then had three children. Her husband was killed in action
during the Polish campaign in October 1939. At the middle of December
1939 she came to Germany being committed to work there. She was first
employed for over a year by a farmer in Weidenheim, then for a year
by the farmer Landshuter at Unternzenn, and since 15 March 1942 she
has been employed by the farmer Gundel at Uffenheim. Leo Gundel is 60
years old and fragile; his daughter manages the farm. At Weidenheim
the defendant Kaminska met the codefendant Wdowen who belongs to the
Ukrainian ethnic group. Wdowen never attended school, he can neither
read nor write, nor had he learned a trade. Until he came to Germany
in March 1940 for labor commitment he worked as a farm laborer for his
parents and for other farmers in the territory of the former Polish
state. In Germany he was first employed by a farmer in Weidenheim, and
in March 1942 he was transferred to Gundel together with Kaminska.
Wdowen started a love affair with the defendant Kaminska in Weidenheim.
The child born in June 1942 is a result of that relationship. The
defendant took the child to her mother in Wussiowa in March 1943.
On 1 July 1942 the two defendants entered Gundel’s home and demanded
money from the daughter, Marie, for the journey which the defendant
Kaminska had made to Poland to take her child to her mother. When the
daughter refused the request, they turned to old Gundel who was also
present in the room. When he, too, refused to pay any money to Kaminska
both defendants became more and more insistent; the defendant Wdowen
even gave the farmer a push. In his distress, Gundel called for the
help of the army private Anton Wanner, who used to work on the farm as
a laborer and who happened to be spending his leave there. Wanner was
in uniform. He came into the living room and told the defendants to
leave immediately. The defendant Kaminska at once attacked the soldier,
slapping his face once. Thereupon, Wanner slapped her face. Now a fight
resulted during which his infantry assault badge fell to the ground.
Wanner, feeling himself threatened, drew his bayonet and yelled at
Wdowen, “Get out, you bully.” The defendant Kaminska by this time ran
out of the room and took a hoe which was leaning near the staircase.
She did not get a chance of attacking him as the soldier quickly closed
the door.
Shortly afterward Wanner was riding on his bicycle along the road
to Uffenheim to go to the police station. When he was passing the
two defendants who were walking in the same direction, the defendant
Kaminska threw a stone weighing half a pound after the soldier without,
however, hitting him.
The next day police sergeant Dirmann went to Gundel’s farm, but the
defendant Kaminska was working in the fields. There, the police
official told her to follow him. The defendant Kaminska followed him
unwillingly and hesitatingly. The codefendant Wdowen ran after the
police official, although the latter had forbidden him to follow them.
On the way Dirmann twice slapped Wdowen’s face to force him to turn
back. Despite this he followed the two to the prison cell. When Dirmann
wanted to put Kaminska in the cell she began screaming. Wdowen rushed
up to them and embraced Kaminska with both hands so that the police
official was prevented from arresting Kaminska. Only after several
other people who were called in by the police official came to his aid,
he succeeded in overpowering the two defendants and putting Kaminska in
the cell.
The defendant Kaminska states that she learned before 1 July 1942 at
the employment office that the farmer Gundel had to pay her travel
expenses both ways. On 1 July 1942, she made only these demands.
Besides, she only slapped the soldier after he had slapped her face.
She had not purposely torn off his infantry assault medal. It was
true she had fetched the hoe but she had not raised it to assault the
soldier but only to intimidate him.
The defendant further admits having picked up a stone on the way to
Uffenheim and having thrown it after the soldier; she merely mentioned
as an excuse that she had been so angry that she had picked up a stone
and thrown it at Wanner.
Regarding her arrest by police sergeant Dirmann, the defendant says
she had offered resistance because she had been afraid that the police
official would throw her into a cellar; she had not known before what
the official really wanted from her.
The defendant Wdowen denies having struck or attacked the old man
Gundel and the soldier in the living room. He had only received a blow
on the nose from Wanner when Wanner had said something to him and to
Kaminska which he could not understand. He had not seized or held him.
Concerning the arrest of Kaminska, Wdowen states that he had “already
thought” that Kaminska was to be arrested by the police official; he
had also kept “running after them,” although he had been forbidden to
do so, and he did not let himself be intimidated by the slappings.
Outside the cell he had intended to tear Kaminska away from the
police official because he had felt sorry for her. The excuses which
the defendants have put forward are irrelevant; for the rest, the
afore-mentioned facts have been confirmed by the witnesses Gundel and
Wurm. The soldier Wanner has been reported missing since the fighting
in Tunisia. The witness, police sergeant Wurm testified, however, that
Wanner had made definite and clear statements. The court is therefore
convinced that the defendant Kaminska hit the soldier first; she was
not authorized to do so in any way. When the witness Miss Gundel
had told her that she would first make inquiries at the employment
office as to whether the demands for payment of travel expenses
were justified, the defendant Kaminska should have been satisfied.
If despite that she continued to insist on her imagined demand and
together with Wdowen behaved insolently towards Miss Gundel and her
father, it was absolutely understandable that old Gundel called the
soldier Wanner for help. The defendant Kaminska should have complied
immediately with Wanner’s demand to leave the room. She cannot claim
that she did not understand his demand. If instead of immediately
leaving the farmer’s living room, she slapped the soldier’s face then
this constituted a bodily maltreatment and thereby an assault and
battery.
As the codefendant Wdowen, too, according to the credible statements
which the soldier Wanner had made to the police sergeant Wurm, either
gripped the soldier or at any rate took sides with Kaminska, so that
Wanner had to fear a joint attack, it was understandable that he drew
his bayonet in his defense. If the defendant Kaminska had to run out of
the house to get a hoe and with it had walked towards the front door
where the soldier was standing, Wanner had to fear the possibility of
an attack on his life, although it was not established at the trial
whether the defendant had already lifted the hoe to hit him. This
behavior must be regarded as a threat within the meaning of article 241
of the Criminal (Penal) Code.
The defendant admits that after the incident in Gundel’s room, “some
time later” on the way to Uffenheim she, in her anger, picked up a
stone weighing a half pound and threw it after the soldier Wanner who
was sitting on a bicycle, however, without hitting him.
The facts thus established prove that the defendant has committed a
crime within the meaning of article 1, paragraph 1 of the Law against
Violent Criminals of 5 December 1939. For this the death sentence is
imposed on a person who, among other things, when committing a serious
act of violence uses cutting or thrusting weapons or with such a weapon
threatens the body or life of another person.
An act of violence within the meaning of that provision is constituted
by a violent attack on a person which, according to design or execution
or in view of the consequences for the person who is being attacked,
endangers the security afforded by law to a high degree, and which
therefore is particularly rejected and detested by the national
community which is engaged in a fight for its right of existence,
according to the verdict of the Reich Supreme Court of 26 January 1942,
Second Criminal Senate, January 1942.
In the present case, the basic punishable deed is a threat within the
meaning of article 241 of the Criminal (Penal) Code.
The defendant by throwing, in her anger, such a heavy stone after
the soldier did not merely make a purposeless gesture. The court
is convinced that it is evident from the over-all attitude of the
defendant Kaminska, which she had previously displayed toward the
soldier, that she meant to hit Wanner. A stone weighing half a pound
when being thrown by someone in a condition which the defendant herself
described as anger may kill a human being. Thus, a stone of that weight
must be considered equal to a cutting or thrusting weapon; it must be
considered as an object equal to a weapon within the meaning of the
law against violent criminals. The defendant dared attack a German
soldier, she took up an offensive position which would have caused
grave injury if the soldier had not evaded the stone which was thrown
at him. The defendant was about to endanger gravely the life and health
of a German national. The German nation which is engaged in a grim
defensive struggle rightly expects the most severe methods to be taken
against such alien elements. The crime of the defendant, by design, and
execution, as well as a considerable violation of the security afforded
by law, constitutes a serious crime of violence within the meaning of
the law against violent criminals. The fact that the criminal is a Pole
is of particular significance.
From the name of the law it is concluded that it can only be applied
against persons who are to be regarded as violent criminals. The
defendant had not been provoked to the violent action. After she had
failed to hit him with the hoe, she tried to hit the soldier on the
road. The over-all behavior of the Polish woman, also toward the
farmer, proves that the crime is not alien to her nature. She thereby
characterizes herself as a Polish violent criminal. The defendant
cannot dispute that she resisted with all her strength when a police
official wanted to put her in a cell. Her excuse that she had not
known what the official wanted from her cannot be believed. She knew
in what manner she had acted toward the Germans on the previous day.
She therefore had to expect the police official who moreover was in
uniform to try and arrest her. The court has no doubt that she, as well
as Wdowen who admitted having assumed that Kaminska was to be “picked
up” because of her behavior on the day before, knew that she would now
be arrested. By her violent resistance outside the cell, she therefore
violated article 113 of the Criminal (Penal) Code.
According to the opinion of the medical expert, which the Court
shares, the defendant shows no symptoms which could justify doubts as
to her responsibility for the crime.
As the defendant on 1 September 1939 was a resident in the territory of
the former Polish State, she had to be found guilty in application of
articles II, III, and XIV of the Penal Ordinance for Poles, of a crime
of assault and battery in conjunction with a crime of threat, a crime
under article 1, paragraph 1 of the Law against Violent Criminals, and
of a crime of offering resistance to the police.
The defendant was further charged with intentionally having torn off
the infantry assault badge of the soldier Wanner. That could not be
proved during the trial. The witness, Miss Gundel, testifies that after
the defendant Kaminska had slapped the soldier’s face, a fight ensued
and that afterward the soldier’s infantry assault medal was missing.
In view of this evidence there is, at any rate, a possibility that the
badge might have loosened in the course of the fight. A particular
acquittal was not necessary, however, as the attitude of the defendants
must be regarded as one action.
Although the old feeble farmer Gundel was not physically injured by
the thrust of the defendant Wdowen, he did rightly feel the action of
the Ukrainian to be an offense to his honor as a German. The defendant
Wdowen, by holding Kaminska with both hands when the Polish woman was
about to be put into a cell so that the police official was unable to
do so for the moment, and by allowing himself to be removed only after
the intervention of other persons, offered forceful resistance to an
official who was lawfully doing his duty.
By his action, he also tried to free the codefendant Kaminska from the
hold of the official in whose custody she was.
His act, therefore, constitutes an attempt to free a prisoner in
conjunction with resistance to the police under articles 120, 43, 113,
73 of the Penal Code.
That, however, does not exhaust the entire unlawful character of his
deed.
The defendant Wdowen knows very well that the German economy, on
account of wartime conditions, is dependent on foreign labor, in
particular on labor from the eastern territories. He speculated that
his offenses would be overlooked in order not to lose him as a worker.
The defendant also knew that because of the drafts into the armed
forces the security organs in the Reich have been reduced and that
Germany is deprived of the population fit for military service so
that the rural population is largely helpless against the insolent
and obstinate behavior and against attacks, which occur more and more
on the part of such elements from the East. The defendant Wdowen,
therefore, committed the offense taking advantage of the extraordinary
wartime conditions. His action is therefore particularly despicable and
demands that the ordinary limit of punishment be exceeded.
The defendant therefore had to be sentenced for a crime under article
4 of the Decree against Public Enemies in conjunction with resistance
toward the police and an attempt to free a prisoner.
Under article III, paragraph 2 of the Penal Ordinance for Poles, the
death sentence must be passed if the law provides for it. The defendant
Kaminska, therefore, under the law against violent criminals is
deserving of the death penalty.
The death penalty has to be pronounced as the only just atonement
because the security afforded by law within the German living space
must be protected against Polish criminality with the utmost severity.
The defendant Wdowen, if only by his behavior toward the feeble
old farmer Gundel proved that he is an insolent aggressive fellow
inasmuch as he kept following the police official, although he had
been chastized twice. It is to be concluded that he was waiting for
a favorable moment to free the codefendant Kaminska by force, and
finally by attempting to prevent by force the police official from
the execution of his official duties and the latter having to call
for assistance, he topped his provocative, dangerous behavior. Every
security organ enjoys the special protection of the Reich. He who
impedes in such a provocative manner the security organs, which are
stationed at home, and which on account of their numerical minority
are particularly overburdened during the war, must expect the Reich to
react with utmost severity. That applies, in particular, to the foreign
workers from the East who work in the Reich. In view of that, the court
has assumed a particularly grave case within the meaning of paragraph 4
of the Decree against Public Enemies, and has not attached any decisive
importance to the circumstances alone that the defendant Wdowen has had
no previous convictions and has hitherto not attracted any unfavorable
attention during his stay in Germany. Therefore, the defendant Wdowen
had to be sentenced to death under the penal law of article 4 of the
Decree against Public Enemies.
Costs: Paragraph 465, Code of Criminal Procedure.
[Signed] OESCHEY[378]
DR. GROS[379]
PFAFF[380]
TRANSLATION OF DOCUMENT 664-PS
PROSECUTION EXHIBIT 348
CIRCULAR LETTER OF HIMMLER TO THE SUPREME REICH AUTHORITIES, 10 MARCH
1944, NOTING THAT “THE ACCOMPLISHED EVACUATION AND ISOLATION” OF JEWS
AND GYPSIES HAD MADE MEANINGLESS THE PREVIOUS MANNER OF PUBLISHING
SPECIAL DIRECTIVES CONCERNING THEM
Berlin, 10 March 1944
The Reich Leader SS
Minister of Interior Affairs
S. Pol. IV D 2 c--927/44 g-24
[Initial] TH [Thierack]
[Stamp] Reich Ministry of Justice
17 March 1944
Dept. VII
_SECRET_
To the Supreme Reich Authorities
Subject: Posted prohibitions concerning Poles, Jews, and gypsies
The separately published decrees and rules governing the livelihood of
Poles, Jews, and gypsies within the jurisdiction of the Reich, have
frequently led to a summary equalization of these groups in the public
eye as far as sale-and-utilization prohibitions, public announcements
in the press, etc., are concerned. This attitude does not correspond
with the differentiated political position to be granted to these
groups now, and in the future.
As far as Jews and gypsies are concerned the accomplished evacuation
and isolation of these groups by the Chief of the Security Police and
the SD has made the publication of special directives (concerning the
all inclusive prohibition of participation in many livelihoods) in the
previous manner meaningless. Therefore, corresponding public directives
may be eliminated.
The decrees and regulations which have been decided upon to govern
the livelihood of the Poles will remain as before. For political
practical reasons it is hereby recommended to maintain a certain amount
of restraint in the public directives of these regulations, be it in
posters, signboards, on press releases, etc.
I wish that the subordinate officers be informed of the necessary
directives.
[Typed] Signed: H. HIMMLER
Certified: [Illegible signature]
SS Sturmbannführer
TRANSLATION OF DOCUMENT NG-900
PROSECUTION EXHIBIT 453
LETTER FROM THE CHIEF OF SECURITY POLICE AND SD TO MINISTRY OF JUSTICE,
3 MAY 1944, ENTITLED “REQUESTS MADE BY THE COURTS FOR INFORMATION ON
JEWS,” AND INTEROFFICE MEMORANDUMS LEADING TO DISPATCHING OF A LETTER
DRAFTED BY DEFENDANT ALTSTOETTER
The Chief of the Security Police
and the Security Service
IVA b (I) a 4647/43
Please state this business number,
the date and the subject in
correspondence
Berlin SW-11, 3 May 1944
Prinz Albrechtstr. 8
Local Phone: 120040
Long distance: 126421
[Stamp] Reich Ministry of Justice
5 May 1944
Dept. VII-VI
[Initial] TH [Thierack]
[Initials] KLE [Klemm]
To the Reich Minister of Justice
Berlin
Subject: Requests made by the courts for information on Jews
Reference: None
In a number of proceedings for the checking of descent, the District
Court Vienna requested information about the whereabouts of Jews, in
some cases it requested this information from the central office for
the regulation of the Jewish problem in Bohemia and Moravia at Prague,
and in some cases directly from here. These Jews were at some time
either evacuated to the East or were sent to Theresienstadt. Although
my local office drew the attention of the District Court Vienna several
times to the fact that such requests, as well as applications for the
admission of such Jews as witnesses before courts or for hereditary
biological examinations cannot be granted on account of reasons
stated by the Security Police, the District Court Vienna renews its
applications continuously.
Besides the fact that the Jews for years had time and opportunity to
clarify their position with regard to descent, the proceedings for
the checking of the descent demanded by the Jews or their families
are according to experience in general made only in order to conceal
their descent so that they would not be subject to the measures of the
Security Police intended for them, or to those which have already been
carried out. For this reason and in the interest of urgent dispatch of
work important to the war effort the granting of applications of this
kind has to be refused for the time being.
Therefore, I request to direct the District Court Vienna not to submit
any such applications in future. I would be grateful to be informed
about the steps taken from there.
As deputy:
[illegible signature]
The Reich Minister of Justice Berlin, 3 June 1944
VIb 2 1124/44
Dispatched 14 June 1944, [initial] B
[Stamp] Office
8 June 1944
H/Frl. [illegible]
1. To the President of the Court of Appeal, _Vienna_
Subject: Handling of cases concerning descent of Jews or Jewish
persons of mixed race
No previous correspondence.
The Chief of the Security Police and the Security Service pointed out
that in cases concerning descent of Jews and Jewish persons of mixed
race the office of the police are frequently asked for information on
the place of abode of deported Jews by the courts especially by the
District Court Vienna, or that their admission, as witnesses or for the
purpose of examination for hereditary biological expert opinions is
requested. These requests cannot be granted for reasons of the Security
Police.
Even if the hearing (_and examination_)[381] of the Jews (_be
an important piece of evidence for the clarifying of the question of
descent_) in many cases help to frustrate the intentions (_of the
Jews_) to conceal their descent, reasons of the security police
demand to desist therefrom (_from this piece of evidence_).
In the near future I intend to issue in a decree detailed regulations
for the handling of cases concerning the descent of Jews and Jewish
persons of mixed race. Already now I request to inform the District
Court Vienna (_and other courts, in your district, which according
to your judgment, Mr. President of the Appellate Court, should be
informed_) of the following:
(insert)[382]
As deputy:
2. To the Chief of the Security Police and the Security Service
Subject: Requests for information on Jews made by the courts.
Reply to the letter of 3 May 1944--IV A-4-b (I) a-4647/43
1 enclosure (copy of 1)
[Stamp] Dispatched: 14 June 1944
3475/2 [Initial] B
In the enclosure I submit a copy of my letter to the president of the
Appellate Court Vienna for your information.
BY ORDER
[Initial] AL [Altstoetter]
3. Ministerial Counsellor Rexroth
With the request to settle the arrangement of the report with the
Minister
The settlement of the arrangement of the report was not possible on 3
June 1944
_Before dispatch_
Mr. Minister is informed
[Illegible initials]
[To the] Minister [of Justice] with request to permit the dispatch of
the above letter signed by me. The arrangement of the report could
be settled in connection with the report on the decree concerning a
general order on the handling of cases concerning the descent of Jews
and Jewish persons of mixed race. It is intended to put into the draft
of this official decree, the directives in the above letter sent to
the president of the Appellate Court Vienna for information to all
presidents of the appellate courts and general public prosecutors.
[Signed] ALTSTOETTER, 3 June
[Initial] R [Rexroth] 3 June
[Insert]
(In cases of Jews who were deported to Theresienstadt or to other
places, a hearing as witnesses or a hereditary biological examination
is impossible for reasons of the Security Police, because persons
to accompany them and means of transportation are not available. If
the residents registration office or another police office gives the
information that a Jew has been deported, all other inquiries as to
his place of abode as well as applications for his appearance [before
court], questioning and examination are superfluous. On the contrary,
it has to be assumed that the Jew is not obtainable for the taking of
evidence.
If in an individual case it is in the interest of the public to make
an exception and to render possible the taking of evidence by special
allocation of persons to accompany and means of transportation for
the Jew a report has to be submitted to me in which the importance of
the case is explained. In all cases offices must refrain from direct
application to the police offices, especially also to the central
office for the regulation of the Jewish problem in Bohemia and Moravia
at Prague, for information on the place of abode of deported Jews and
their admission, hearing or examination.)
[Initial] R [Rexroth] 3 June
EXTRACTS FROM THE TESTIMONY OF DEFENDANT
SCHLEGELBERGER[383]
_DIRECT EXAMINATION_
* * * * * * *
DR. KUBUSCHOK (counsel for defendant Schlegelberger): Since
the Jewish question is of particular importance for several points
in the indictment, I would ask you first of all to tell us what your
personal attitude to the Jewish question was.
DEFENDANT SCHLEGELBERGER: As far as I am concerned, there
is and there was no Jewish question. This is my attitude: all races
were created by God. It is arrogant for one race to place itself above
another race and try to have that race exterminated. If a state deems
it necessary to defend itself against being inundated and does so
within the frame of a social problem, then it can and must be done by
applying normal, decent means.
During the Goebbels campaign in 1938 I was abroad. When I heard
about those events I said to my family: “We must be ashamed of being
Germans.” That was my view at that time and that is my view today. The
only person with whom I am united in faithful friendship until today
because we went to school together is a full Jew. I succeeded in saving
his life all through that era. He again holds his former office as a
judge. My physician too is half-Jewish. That attitude of mine naturally
meant that on many occasions I was faced with inner conflicts. I ask
you to consider that the Jewish problem was regarded as the central
problem of the National Socialist State and the entire life in Germany
was to be placed in line with that. Concerning that question Hitler
and his followers worked in an entirely uncompromising manner; that an
expert administrator could not bypass that basic attitude is a matter
of fact. I shall have an opportunity to demonstrate what my personal
attitude was toward those questions and how it always evidenced itself
in an effort to put a check on the wishes of party policy, to make
improvements and to exercise as far as possible a moderating influence
on the practical application of those matters.
Q. What were the manifestations of your attitude to the Jewish question
in your office?
A. The prosecution charges me with having cooperated in taking measures
against the Jews. That the ordinance of 4 December 1941[384] against
Jews in the eastern territories must be evaluated under particular
points of view, I shall show in connection with the Polish question.
For the rest, I ask you to consider that in view of the strength of
the powers with which I was engaged in a struggle, a hundred percent
victory of the Ministry of Justice was entirely out of the question.
In that sphere, too, faithful to my basic attitude, I did work to
make justice prevail; but frequently I had to content myself with
making a compromise and I had to be pleased when at least I had
achieved some amelioration. To use a customary phrase, if I had drawn
the consequences from every defeat, I would have deprived myself of
all possibility to aid the Jews. Quite apart from the fact that the
resignation from office, before the war would have been a factual
impossibility, and during the war a legal impossibility until a new
minister was appointed.
With the permission of the Tribunal I will prove how difficult it was
by citing an example. When the Party started a campaign against Jewish
lawyers, I went to see Hitler and told him that it was untenable
to remove from their profession Jewish lawyers among whom research
people of repute were included, and with whom I myself had worked.
I was pleased when I succeeded in persuading Hitler that that was
correct and in achieving his agreement that he would reject the wishes
of the Party. To inform the agencies concerned, I called a meeting
of Ministers of Justice of the Laender who were still in office in
those days and informed them about Hitler’s decision. The result was
surprising. I encountered bitter resistance, and the meeting bore no
result. Hitler asked for Guertner to come to see him and asked him for
information as to whether I was not perhaps a Jew myself. Then the
Party began to exercise pressure on Hitler. He abandoned his decision,
and the Jewish lawyers were removed from office. So as to make it
possible at least for the Jews to preserve their rights, I proposed to
set up the institute of the so-called Jewish consultants where former
lawyers worked as consultants.
As to my own attitude toward these problems, that I could show properly
only where I, myself, had to make the decisions. In this connection,
I attach importance to the fact in saying here that nothing is more
removed from me than here to play the part of the friend of the Jews. I
am not a friend of the Jews; I am not a friend of the Aryans as such;
but I am a friend of justice. And anybody who saw me at work and wishes
to give a just opinion can confirm that with regard to all those who in
my opinion were unjustly persecuted; no matter what their race or what
their class, I tried to help them with all my strength.
Roosevelt, the former President of the United States of America, in
1944, in an address to the United Nations said, “Hitler asserts that
he had committed the crimes against the Jews in the name of the German
people. May every German show that his own heart is free of such
crimes by protecting the persecuted with all his might.” I can claim
for myself that I acted accordingly. Concerning the members of the
Ministry who were not fully Aryan, I kept them in office; and as has
been established at this trial concerning judges who were not fully
Aryan, I left large numbers of them in their offices irrespective of
the Party purge. I looked after those who had been dismissed from their
posts, and who were non-Aryans, and who had Jewish relatives. As far as
possible, I protected them against being driven out of their homes and
being deported.
Q. Concerning the question of civil servants remaining under Dr.
Schlegelberger who were not fully Aryan, persons who were only
dismissed on the basis of Thierack’s list, I refer to Exhibit 42.[385]
On the legal provisions concerning the fact that since 1933 a minister
could not resign on his own, I will submit Schlegelberger Documents 79
and 80.[386]
Witness, you also dealt with a bill concerning people of half Jewish
race. The prosecution has included those documents under PS-4055,
Prosecution Exhibit 401.[387] Will you tell us something about those
documents?
A. That document has been the subject of the discussion before the
International Military Tribunal. The document, if my recollection is
right, consists of two parts. On 12 March [1942], there was a letter
from me to Reich Minister Lammers, and a letter of 5 April, to various
agencies.
Q. May I interrupt you for a moment? The first letter is dated 6 March,
and is in the English text on page 95.
A. I thought you were talking of the discussion which took place on 6
March.
Q. Yes, on page 95.
A. First of all, I’d like to speak about the letter of 12 March. That
was, as I said, a letter from me to Reich Minister Lammers. From that
letter I gathered that on 6 March there was a discussion about the
treatment of persons of mixed origins, partly Jewish, partly Aryan. In
that conference, the SS had demanded that people of mixed origin were
to be treated in the same way as full Jews and were to be sent to labor
camps in Poland.[388] If that had been done, a demand which for a long
time had been voiced by the Party in a categorical manner would have
been carried out. If one reflects to what extent the police measures
were carried out in those days against Jews, one had to recognize that
now the question of the fate of the mixed Jews had entered into an
acute phase.
When I heard about the subject of that discussion, the question arose
immediately whether one could, and how one could, intervene. My moral
obligation was clear to me. There was the difficulty that it was a
different department; that in itself was difficult to interfere with
a different department in its work; and again and again there would
be the additional difficulty that I was no minister. But to put it
plainly, it was the case of an under secretary who was only appointed
[as acting Reich Minister of Justice] under a system by which he could
be given notice any day. If I had attempted to attack that political
solution with legal or ethical weapons, nothing would have been done
and there would have been nothing but mockery about me. Thus, I had to
find a different way.
I had to try to approach somebody who perhaps might have the
possibility to talk some sense into Hitler, and that person was Reich
Minister Lammers, a man from the group of old civil servants, a man
who had a feeling for right and justice, and whom I had frequently
assisted in difficult situations. I could be quite open and frank
with him; and, therefore, the quite open way in which I talked in
my letter was without any pretense. I described the suggestions as
entirely impossible. I did so knowing that thereby I was interfering
with affairs which had nothing to do with me as far as my department
was concerned, for the judiciary only had an outside interest in those
affairs. There was a question of compulsory divorce, a question which
naturally I answered in the negative; a question which was naturally
very important for those whom it concerned, but the importance of which
was not comparable to the great problem which was now my concern.
Lammers said I could talk to him, but that conversation never came
off, and probably it did not come off because Lammers was away at the
[Fuehrer] Headquarters. Thus, I had to act on my own initiative, and,
as I have said, I could not act in basing myself on legal and ethical
considerations because that would have amounted to doing nothing. I
had to limit myself concerning the agencies in question to acquaint
them with the fact that the solution which they intended to apply
was not possible. The entire idea and the entire way of thinking
concerning that question altogether was based upon the desire to see
to it that a further increase of persons of mixed origin, Aryan and
Jewish descent, was to be avoided. I used that as my basis, and this is
what my proposal amounted to. Certain groups were to be exempted from
the solution altogether from the very outset. First, persons of mixed
descent of the second degree, that is to say those persons who had
only one Jewish grandparent; second, a person of mixed descent of the
first degree, that is to say a person who had two Jewish grandparents;
of those the people who were not able to propagate; and three, those
persons of mixed descent, first degree, whose offspring under the
law were not considered half-Jews. By that proposal, therefore, all
persons of mixed descent, second degree a very large number, and a
considerable number of people of mixed descent first degree, would
have been excluded from this measure. The remaining persons were of
mixed descent, first degree. For them I suggested that if they were
to prefer it, they were to be sterilized rather than deported to
Poland. May I draw the attention to this point. The idea of escaping
deportation by voluntary sterilization did not originate within myself.
That idea originated from the persons of mixed descent themselves.
I knew that persons of mixed descent had asked physicians to exempt
them from the application of the Nuernberg laws and had themselves
suggested to afford them the possibility of sterilization. In view of
that situation in which they found themselves, I thought it justified
to revert to the suggestion which these people themselves had made
originally, and to afford them an opportunity in that manner to escape
deportation to Poland. The prosecution employed that suggestion of mine
to raise charges against me. I believe that if one thinks things out
until the last, it is not so difficult to recognize that these charges
are unfounded. My suggestion, altogether my work in that respect as I
have said before, was not one of the tasks of the judiciary. If I went
beyond the limits of my department, one must bear in mind that the
charge would only be justified if one took it for granted that I was a
model of active National Socialists, an active National Socialist who
overcomes every obstacle even the limitations of his department, and I
would assume that everything that has been discussed here so far will
show that to assume such an active National Socialist ardor would be
complete nonsense. I acted in accordance with my ethical feelings; the
only motive for me was the intention to check a development which was
fatal for a large number of persons. There are, after all, situations
where one can only escape a larger evil by applying a smaller evil.
But that somebody who all his life has thought along the lines of law,
found it extremely difficult to make a decision of that kind, that the
Tribunal will understand.
Q. Under Document NG-151,[389] the prosecution has submitted documents
concerning limitations of the legal means for Jews in penal cases.
Please give us an explanation concerning those documents.
A. Those documents begin with a letter by Freisler dated, I believe,
3 August 1942. In that letter Freisler tells the agencies in question
about a bill concerning the problem we have just mentioned. The reason
for his suggestion, he referred to as the exigencies of the war, he
says that the state of affairs is untenable, and that it weakens the
defensive will of the German people. Freisler wrote that letter without
my knowing anything about it beforehand, but afterward he told me
about it and gave me his explanation. This is what he told me: Himmler
and his agencies had pointed out again and again that the present
state of affairs was an impossibility; only a radical separation of
the entire Jewish problem from the judiciary and transfer to police
was conceivable. Again here we find--I shall have to revert to that
later--Himmler had also said that the administrative measures against
the Jews had advanced so far that it would be nonsense, in particular
concerning criminal Jews, to be more lenient; therefore, one had to
guard against allowing these criminal Jews, who were already under the
supervision of the judiciary, such benefits as legal protection.
Himmler’s desire to transfer Jewish affairs to the police was too
much even for Freisler. Perhaps he was also particularly proud of his
paternity of the penal ordinance concerning Poles and Jews which he
considered his own sphere. Therefore, so he told me--and I believed
him--in all circumstances he wanted to adhere to the competence of the
courts; but he then convinced himself that somehow or other he had to
make a concession because otherwise events would move without us.
Furthermore, we of the administration of justice, particularly in
the Incorporated Eastern Territories, suffered from a severe lack of
judges, and we could only master that difficulty if we exempted a
number of judges from service in the armed forces. If Freisler and we
had refused consistently to comply with Himmler’s wishes, it would have
been easy for Himmler to get Hitler to agree to cancel such exemptions
from service with the armed forces, and thus the administration
of justice in the eastern territories would have come to an end
altogether. In order to avoid this danger, Freisler believed that he
had found a way out in limiting legal remedies and thereby to start out
on a way which we later on, inside Germany, in cases against Germans,
had to take on account of the lack of judges. That is why he made the
suggestion. I could not altogether agree with Freisler’s arguments, but
I attached importance to the fact that this new regulation was to be
final and was to appear as such to the outside world, too. That might
strengthen our position toward the opposing forces and, therefore, in
the letter I wrote afterward,[390] I discussed the question of whether
Jews are able to take an oath, and I included that question in my draft
so as to make that draft more well rounded and complete. In itself this
question of the oath was important, for under German law it is the duty
of the judge to attach equal weight to statements made under oath, and
statements made while the person was not under oath.
There again we were faced with a case in which a concession which in
itself was immaterial but which to the outside world, nevertheless,
seemed important, had to be made in order to pacify Party circles. If
one wants to evaluate such a procedure, one must bear in mind that 1
month later Thierack did find a final and comprehensive solution. He
dropped my suggestion and transferred the Jews to the police.[391]
Q. The prosecution also submitted Document NG-589, Prosecution Exhibit
372,[392] a document which concerns a curtailment of the poor law
privileges of the Jews. Was that ruling made at your suggestion?
A. No. I only heard about that ruling here when the document book was
submitted. At every ministry certain matters which are not of much
importance are dealt with quite independently by departments which are
below the under secretary or the minister. It is altogether out of the
question that an under secretary or minister deals with everything
personally. He would even misunderstand his function if he were to do
so. Those matters, for example, the question of the poor law, fell
within the competence of the then Assistant Under Secretary Hueber, who
signed the ordinance.
As I said, I only heard about it here, but I should like to add
that the institution of the poor law was created so as to enable
poor persons to conduct civil litigations. The granting of poor law
privileges does not mean that the person to whom it is granted can
conduct proceedings free of costs, but it only exempts him from payment
in advance. He is still under an obligation to pay.[393]
The poor law institution, therefore, so to speak is an institution
of government welfare. For a long time before Hueber ordered it,
government financial support of Jews had been stopped, and they
had been referred to their own Jewish welfare organizations. The
uncurtailed provisions governing the poor law, therefore, were not in
accordance with the line otherwise observed, and Hueber refers to that
when he considers the old ordinance as outmoded.
Q. I do not know whether the witness’ statements were clear enough to
elucidate the concept of the poor law. I hear that the expression in
English has been translated by “poor law.” That translation might
perhaps lead to confusion. We are concerned here merely with the
question of costs and merely with the exemption of paying costs in
advance, and that is the cost of civil litigation.
* * * * * * *
Q. I come now to the introduction of the German criminal law in the
Incorporated Eastern Territories. Will you please give a short review
of the general development of that question?
A. These matters, as far as the time was concerned, are connected with
what I said before. Among the drafts sent out in February 1940, there
was also one about the introduction of criminal law.
Q. May I interrupt you? That, again, is Exhibit 459.[394]
A. That draft comes from Freisler’s sphere, and in the absence of the
Reich Minister of Justice Guertner, as well as Freisler, I signed that
draft upon the request of the Minister. That draft provided absolutely
equal treatment of Germans and Poles. Later on, 6 June 1940, a decree
was issued about the introduction of penal law in the Incorporated
Eastern Territories and that decree was only designed for Poles and
Jews; that shows that before my time, and without any assistance on my
part a special law was created for Poles and Jews. Apparently Freisler
afterward gave in to the efforts of the Party and had managed after
hard struggles to obtain the approval of Guertner, who, as I know, was
against such a thing on principle. But the decree of 6 June 1940 bears
the signatures of Frick and Guertner.
Q. That decree will be contained in my document, Schlegelberger
60.[395] Then, it came to the penal ordinance concerning Jews and
Poles, 7 December 1941, that is Exhibit 343.[396] Will you please
discuss that decree in detail?
A. That decree of 7 December 1941 which has been the subject of a
detailed discussion in this trial is based on the following: The decree
of June 1940, in the view of the department of criminal legislation
in the Ministry, was not satisfactory. And that was because the
extent of punishment was not sufficient, neither the maximum nor the
minimum of punishment was sufficient. There was also a lack of specific
provisions. In addition to that, the Reich Chancellery had informed
the Ministry, that the deputy of the Fuehrer and the Party, demanded a
discriminatory law concerning Poles and Jews.
Q. I refer to Exhibit 341.[397]
A. Therefore, the Department for Penal Legislation--that was before
my period in office as Acting Reich Minister of Justice--had started
to work out a new draft which should take care of these deficiencies.
When I took over after Guertner’s death, Freisler reported to me about
that matter and told me the following: It was Himmler’s intention to
obtain sole competency for all cases against Poles and Jews, and that
Gauleiter Greiser of Warthegau province was of the same opinion, and
he if necessary wanted to eliminate the administration of justice with
the aid of civilian courts martial. Bormann was of the same opinion
and demanded, first of all, the introduction of corporal punishment.
According to this information I had to expect a fight with the Party.
This fight which was fought to maintain legal procedures for Poles
and Jews in all events, could only be successful if I could point
out that the courts had at their disposal an appropriate procedure
and appropriate provisions which were sufficient for all, even the
most serious cases. The new draft,[398] in my opinion, was designed
to rebut the assertion by the Party that the courts could not master
the situation. Therefore, in April 1941, I submitted that draft to
the Ministerial Council for Reich Defense to the attention of Reich
Minister Lammers, in order to achieve a decision. I also announced
to Lammers that I had to see him in advance to inform him about the
situation, and about the conditions which lead to the draft in that
form. The prosecution has repeatedly referred to that covering letter
which accompanied the draft.[399] Therefore, I should like to explain
the reason for this letter, and the manner in which it was written.
According to the legal provisions, to those provisions which I have
already discussed, I had to have the approval of the Party Chancellery,
but only then did I have any chance to obtain that approval, if
that draft was implemented with those main points which I considered
necessary.
If I had described in my letter the contents and consequences of the
draft without exaggeration, I could never have expected the approval
of the Party Chancellery. Therefore, I had no alternative but to
emphasize the increases in the severity of treatment with exaggerated
expressions, to pass over less severe provisions, and to leave out
references to decrees which would make this decree more lenient.
Whether it came to any conference with Lammers, I could no longer
tell. I remember quite clearly the event which proved to me that my
assumption was correct, that we would have to expect a most energetic
attack on the part of Himmler.
In the summer of 1941, Himmler asked me to come to a conference. That
was the only one I ever had with Himmler. There was a great pressure
with regard to time connected with that request. Himmler told me that
he was on his way to see Hitler and that he had to have my approval.
Penal cases against Poles and Jews should be turned over to him, that
is to say, to the police. That was regardless of where the acts had
been committed.
I rejected that categorically and told him that for that kind of change
of competence, there was no reason whatsoever, particularly since in a
very short time a new regulation could be expected about that question
by the Ministerial Council for Reich Defense. That, of course, made
Himmler suspicious. At that time, it did not seem to him to be the
right thing to fight against the Ministerial Council for Reich Defense
which was under the presidency of Goering, at that time a strong
opponent. Himmler seemed to depart for a short time from his original
plan.
The Ministerial Council for Reich Defense passed that draft in December
of the same year and that determined and assured the competence of the
courts for penal cases against Poles and Jews[400]. When I left office
that was immediately changed as could be seen from these proceedings.
That decree dates back to December 1941, as I have already pointed out
the period when my task as Acting Minister of Justice came to an end.
It is not surprising that I could not gain a clear picture, as to how
that decree was applied and what the consequences were.
I do recognize that one could criticize individual sentences at
least as far as the limited amount of material is concerned which is
available to us now. However, considering that there were about half a
million penal cases during 1 year--as regrettable as it may be in the
individual case--it is not very decisive for an over-all judgment of
conditions. I owe it to the German judges to state here frankly and
publicly that as long as I could observe their activity, they have
discharged their duties with a definite desire for justice in general.
Concerning the criticism which was voiced against this decree, I should
like to say the following in detail. The most essential feature of
that decree was its practical application. I took every opportunity
when a judge from the eastern territories came to see me to point out
that that decree gave a great deal of latitude to the judges; that
therefore, the judges for the procedure as well as for the sentencing
had to keep in mind that they were servants of justice. Beyond that I
caused Freisler to discuss the point of view of just application in an
article in a magazine, _Deutsche Justiz_ (German Justice).[401]
_Deutsche Justiz_, an official publication, was read by all judges
and prosecutors, and that made absolutely certain that they knew how
Freisler thought about it, and that he did not want any arbitrary
application. That achieved that Freisler himself was prevented from
giving individual directives or expressing opinions which would go
contrary to the meaning of that decree. In view of his unstable nature,
this was particularly important.
This article by Freisler took into account my demands by stating that
it was a serious duty of judges and prosecutors in cases of Poles
and Jews to apply the same maximum care as they would in the case of
Germans. The prosecutors are instructed in preliminary investigations
to examine also points in favor of the defendant very carefully so that
the defendant can recognize the charges made against him and is put in
a position to prepare his defense. The courts are admonished to keep in
mind that it was not within the meaning of the decree that facts which
were of little or no importance should be artificially exaggerated.
What harms an individual does not harm the Reich. Sufficient
opportunity should be given to the defendant to use legal remedies,
to explain things, and to state his views to the evidence submitted.
Everything should be avoided which in the least would make the sentence
look like a sentence based on suspicion. Under all circumstances, the
extent of the punishment should be within sound measure. The legal
remedy of appeal should be applied by the prosecutor, also in favor of
the defendant and for that express purpose, the time limit was extended
to twice its normal length.
PRESIDING JUDGE BRAND: Mr. Schlegelberger, you are referring
to an article by Freisler, are you not?
DEFENDANT SCHLEGELBERGER: Yes.
PRESIDING JUDGE BRAND: Does that have an exhibit number, or
will it have?
DR. KUBUSCHOK: I will submit that article as Document
Schlegelberger 61; 61 will be the number of that article. It is in my
document book.
PRESIDING JUDGE BRAND: 161?
DR. KUBUSCHOK: No, only 61 in document book 3, Schlegelberger
document book 3.
PRESIDING JUDGE BRAND: Thank you very much.
DEFENDANT SCHLEGELBERGER: The right for civil suits for
Poles and Jews had already been rescinded by the old decree. A new
decree brought modification by which also Germans should not have that
right any longer as Freisler explained. And now the most important
element--the latitude and extent of punishment was increased not only
toward heavier punishment, but also by decreasing the minimum. The
death penalty was mandatory only where an act of violence was committed
against a German on account of his being a German. That was already
contained in the old decree. In all other cases, apart from the death
sentence, there was an opportunity for a prison term.
In the old decree, in the case of anyone owning or carrying weapons
a death penalty was mandatory. The new decree provides for the
possibility of a prison term which goes all the way down to 3 months in
prison. That modification applied to a large number of offenses. Also,
the mandatory death sentence for arson was abolished. Apart from that,
I am of the opinion--and it has been mentioned here frequently--that
whether the death penalty is mandatory or optional, a judge who does
not want the sentence of death in taking into account the facts in a
case, can almost always avoid that possibility.
The prosecution asserts that the new decree excludes the clemency plea
for Poles and Jews. That is not correct. If it is stated that the
sentence was final and had to be executed immediately that only means
that with the exception of that right the sentence is final. I will
not discuss the question as to whether a sovereign can forego the use
of the clemency plea from the outset, but it is beyond doubt that the
Ministerial Council for Reich Defense could not have excluded the right
of pardon on the part of Hitler. Besides, for the Incorporated Eastern
Territories, the pardon regulations of 1935 applied. Article 453 of
the Code of Criminal Procedure, according to which execution of the
death sentence is only possible after it has been ascertained that the
authority in charge of the clemency prerogative has refused to make
use of this prerogative was especially emphasized upon my demands in
Freisler’s article. In fact, Poles were pardoned. That was mentioned in
these proceedings. I would like to refer to two cases which I remember:
the case Pitra and the case Wozniak.
DR. KUBUSCHOK: Those cases are contained in Document NG-398,
Prosecution Exhibit 253.[402]
DEFENDANT SCHLEGELBERGER: The right to have defense counsel
is not taken from the defendant by that decree. On the basis of the
regulations concerning Special Courts of that time, a defense counsel
had to be appointed for the defendant. And I may say in conclusion that
the penal ordinance concerning Poles and Jews guaranteed the Poles and
Jews a court procedure and a sentence by the court. Also, it prevented
these defendants from being dealt with without the protection of the
court and being turned over to the police.
Q. I am just informed that the translation on one point was in error.
The witness stated that he would not discuss the question as to whether
the right for pardon on the part of the sovereign, or the supreme
authority of the state, could be omitted, and instead of the word
“sovereign,” the word “defendant” came over the channel.
According to Exhibit 346, retroactivity of the penal ordinance for
Poles and Jews was ordered.[403] What can you say in that connection?
MR. LAFOLLETTE: I did not get the Exhibit number.
DR. KUBUSCHOK: Exhibit 346.
DEFENDANT SCHLEGELBERGER: I have described how great the
pressure on the part of Himmler and Bormann had been. We had just
succeeded in calming these parties down. They had had quite different
ideas of the practical application, but now Freisler again piped up. He
complained that in past cases the old decree was still applicable. In
order to prevent a renewed debate about the competency of the police,
that request for retroactivity was granted. Besides, that decree
concerning retroactivity had a consequence which the Party officials
had not taken into account, most probably, because now, on these many
pending cases against people who had been found to have arms, not the
old decree but the new decree had to be applied which also gave the
possibility of a penalty of 3 months’ prison term instead of the death
sentence, which was mandatory under the old decree.
Q. The prosecution charges you with having introduced or contributed
toward introducing the Standgerichte--the civilian courts martial--in
the Incorporated Eastern Territories. Document NG-136, Prosecution
Exhibit 345[404] is in point. What can you say in that connection?
A. Apart from the general desire to turn over cases of Poles and Jews
to the police, Himmler and Bormann, as it was said once, had a special
preference and desire for the establishment of civilian courts martial.
One could not quite bypass that desire in the decree concerning
Poles and Jews, but it was possible to establish an obstacle. I did
so, including the provision that civilian courts martial could only
be established with the approval of the Minister of Justice and the
Minister of the Interior. Greiser, with the support of Himmler, had
recognized that that clause or that provision would make it impossible
for them to have their wishes fulfilled.
Therefore, bypassing the Minister of Justice, they went directly to
Hitler. Lammers, by order of Hitler, informed me that Hitler had
decided that the demand for the establishment of civilian courts
martial and the transfer of rightful pardon should be granted.
What I had always tried to achieve by various means had not been
achieved; on the contrary, that which I had tried to avoid had come
true. By the decision on the part of the Fuehrer, my hands were tied.
* * * * * * *
_CROSS-EXAMINATION_
* * * * * * *
MR. LAFOLLETTE: Now I believe you testified on direct
examination that you yourself had no anti-Semitic feelings as such
against the Jews as a race; that also you sought justice rather than to
classify people as groups. That, as I gather, was right?
DEFENDANT SCHLEGELBERGER: Yes, that is correct.
Q. If then you extended the Nuernberg laws[405] by decree into the
eastern territories, that would be a little inconsistent with your own
feeling about the matter, would it not?
A. Certainly not.
Q. May I hand you a copy of an order of the 31 May 1941 which as
I read it has the effect of extending those laws into the eastern
territories. This order was signed by you. That is the prosecution’s
document NG-1615, which we asked to have marked for identification as
Prosecution Exhibit 521,[406] Your Honor.
If Your Honors please, if the Tribunal will permit me, I have had
English copies of this and I thought they were here. I am advised that
they are not in here now. I will furnish them. May I proceed and then
furnish them to the Tribunal?
Have you examined that exhibit, Doctor?
A. Yes.
Q. It is signed by you as Acting Reich Minister of Justice, Martin
Bormann, and Dr. Stuckart. Is that correct?
A. Yes. There are two decrees on the same day.
Q. Yes. Article 3 provides the Act for the Protection of German Blood
and Honor of 15 September 1935 shall be applicable in the annexed
eastern territories. That is what is known as the Nuernberg law, is it
not?
A. Yes.
Q. That was applied to the eastern territories?
A. In regard to this decree, I would like to say something, if I may.
Q. Surely.
A. These two decrees of 31 May 1941; the first one is an order
introducing it; and the second one is the executive order of the Law
for the Protection of German Blood and Honor. They have to be looked
at together. As far as the basic question of the introduction of that
law is concerned, the prosecutor has already spoken about my personal
feelings. I shall leave them out of consideration for the moment. In
regard to the question as to whether the Nuernberg laws were supposed
to be introduced, the following were the decisive legal sources:
First, here too the directives of policy which Hitler had issued;
secondly, the political responsibility of the Ministry of the Interior,
as the central office for questions regarding the eastern territories,
and the leader of the Party Chancellery.
The Ministry of Justice in regard to these laws participated only
because the so-called law for the Protection of German Blood and Honor,
by which Minister Guertner was completely surprised at the time,
contained a penal regulation. If now, in accordance with the political
directives, one had to introduce this decree, the penal regulation, of
course, had to be introduced too, and from that resulted, of necessity,
the signature. Moreover, from the connection of these two decrees, it
is apparent without any doubt that the decrees do not apply to Poles,
either Jews or non-Jews, but only to German citizens, and that they had
to comply is obvious.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[407]
_DIRECT EXAMINATION_
* * * * * * *
DR. SCHILF (counsel for defendant Klemm): We come now to
the third phase of your activity, namely, your activity in the Party
Chancellery in Munich.[408] I ask you, first of all, how did it happen
that you came into the Party Chancellery at all? Please also tell the
exact dates to the Tribunal first.
DEFENDANT KLEMM: I began my activities in Munich on 17 March
1941. At that time the Party Chancellery did not exist at all. At that
time there was only the staff of the Deputy of the Fuehrer, and that
was Reich Minister Hess. Reichsleiter Bormann who had the position of
chief of staff was not in Munich at all, but since the beginning of
the war, in the Fuehrer Headquarters in the immediate proximity of
the Fuehrer. That remained the same way during the entire course of
the war. From the Party Chancellery I knew the chief of Department
III, that is Under Secretary Klopfer. I have known him since 1924 or
1925; that is, from my student days. We had not seen each other at all
for 1 or 2 years and had not written to each other. We met by chance
in Berlin in January 1941 in front of the Reich Chancellery, on the
occasion of the funeral of the Reich Minister of Justice Guertner. I
had come for this funeral from The Hague and Klopfer happened to be in
Berlin. At that time Klopfer had just been given Department III in the
staff of the Deputy of the Fuehrer, and he asked me whether I would
like to work in his department, and to take over the group in charge of
the administration of justice. That group consisted at that time of two
or three people, and there was no group leader because he was employed
in other matters.
Q. I believe that is sufficient to describe the cause--
A. I said at the time to Klopfer that I liked it very much at The
Hague; that I had an independent position there. I was able to work
independently, but during the war things were not done in accordance
with the personal wishes of a person; that I would work wherever I was
assigned to work. I never heard anything about it again until one day
Seyss-Inquart called me to him and told me that he had had a lengthy
correspondence with the Party Chancellery, that the Chancellery had
asked for me, that he had fought against this, but in the end had to
give in after all. And he had agreed to the chief of staff of the
Deputy of the Fuehrer to put me at his disposal, and therefore, he
instructed me to start my service in Munich 4 days or a week later.
That is how I entered the staff of the Deputy of the Fuehrer at the
time.
Q. Before we now turn to your activities in detail in the Party
Chancellery, it seems to be necessary to tell the Tribunal the most
important facts about the organizational structure of the Party
Chancellery or the staff of the Deputy of the Fuehrer. You know that
the Party Chancellery has a bad reputation. We want to tell the
Tribunal first the outside organizational structure.
A. The staff of the Deputy of the Fuehrer had that name until the
middle of May 1941, until the time when Reich Minister Hess--that is
the Deputy of the Fuehrer--secretly flew to England.[409] At that time
the staff was transformed into the Party Chancellery, and for the sake
of simplicity I shall only use the name “Party Chancellery” from now on.
The Party Chancellery was an organization with, in my estimation, from
750 to 1,000 persons. There was one office in Munich and one in Berlin.
The Party Chancellery was divided into three divisions, and these
divisions were again subdivided into groups:
Division I, which is of no interest here, was in charge of management,
building, and maintenance; and in that division the personnel of the
Party Chancellery itself was administered. Furthermore, the registry
was there and the telegraph and teletype system.
The nucleus of the Party Chancellery as a Party office was Division II,
the Party political division. Here was the actual leadership of the
Party, that is, the NSDAP, and here was the direct channel to the Gaue,
the Kreise, and the local groups. A certain Friedrichs was in charge of
this division.
Division III was the State or constitutional division as it was called.
Under Secretary Dr. Klopfer was in charge of it. Here everything was
dealt with which had to do with the State and the State functions of
the Party Chancellery, while, as I have already stated, purely Party
matters were dealt with in Division II.
Q. Would you please explain to the Tribunal the contrast between this
office, the Party Chancellery, and the purely Party offices of the
NSDAP?
A. In addition to the Party Chancellery, the Party had different
offices on the level of the Reich leadership, for instance, to cite
examples, the Reich Legal Office, the Office for Agricultural Policy,
and the Office for Public Welfare. Thus, there were a number of
different agencies. Party jurisdiction went through up to the supreme
Party court. It also was divided into Gau and Kreis courts. In addition
to that there were also, of course, some other Reich offices, such
as the office for Reich propaganda matters and Reich organizational
direction, and so on.
Within the Party Chancellery, in addition to these three divisions,
there was also the so-called Reichsleiter Bureau, Reich Leader Office.
That was, so to speak, the staff formerly closest around Reich Minister
Hess and later on around Reichsleiter Bormann. This Reich Leader Office
Bureau, which at times had up to three jurists on its staff, met partly
in Munich and partly in Berlin, in the office there, and partly at the
Fuehrer Headquarters immediately with Bormann.
Q. You spoke of Division III as the State or constitutional division. I
ask you whether it was anchored on a legal basis.
A. If I speak of a state or constitutional division, I give it this
designation because of the nature of the work of that division.
Division III was, so to speak, the counterpart of the State
organization in the Party sector. Division III was divided into seven
groups. I shall describe this organization somewhat later.
By virtue of the “law to secure the unity of Party and State,”[410] the
Deputy of the Fuehrer had been made a Reich Minister. Supplementary
decrees, and orders laid down that the Deputy of the Fuehrer, had to
participate in the making of national laws and ordinances, by having to
approve the drafts of such decrees. This right was then transferred to
the leader of the Party Chancellery, and in a more stringent form--as
the witness Schlegelberger has already testified--quite clearly in a
circular, or perhaps in an ordinance it was repeatedly stated that
the leader of the Party Chancellery always had the position of a
participating minister. In the same way as in the purely legislative
field, the Deputy of the Fuehrer entered into personnel matters of
the government. No higher official could be employed or promoted if
this measure in the State sector was not approved by the Deputy of the
Fuehrer and later by the leader of the Party Chancellery.
In order to fulfill these State and constitutional functions, Division
III had been formed in the Party Chancellery, or rather earlier, in
the staff of the Deputy of the Fuehrer. As I have already stated, it
consisted of seven groups:
Group III-A, above all, dealt with the sphere of the Reich Ministry of
the Interior and questions of nationality [Volkstum]. During the last
period of my time in Munich, the witness Anker, who was examined here
as a witness for the prosecution, was in charge of Group III.
In Group III-B, all economic matters were dealt with: economics, food,
traffic, mails, and armaments.
Group III-C, the group of which I was in charge, dealt with laws and
orders as far as they had been issued by the Ministry of Justice, and
with questions of Party law.
Group III-D worked on educational and ecclesiastical questions, as well
as matters of the Foreign Office.
Group III-E dealt with financial questions, and Group III-P (Paula)
dealt with personnel matters; that is, all State personnel matters,
without consideration of the fact as to whether they originated from
the judiciary, the administration, finance, or anywhere else.
Then there was a group, III-S, which had special tasks in the cultural
field.
* * * * * * *
Q. Witness, you have now listed the individual groups, seven, as you
stated. I now ask you to make a statement as to how the individual
groups of the Party Chancellery were in contact with each other or how
they worked together.
A. In my description I omit Division I, because it only dealt with
technical matters of the management of the office, administrative
details within the Party Chancellery. I can limit myself to the
relationship of Division II, that is the purely Party political
division, and Division III. These two divisions worked not with
each other but against each other. Already this structure was quite
arbitrary and unorganized. For example there were fields of work which
had the same name in both divisions. In the course of time Division
II arrogated this to itself. This battle between the two divisions
was not based only on purely factual reasons in the fields of work but
also had other deeper reasons. In Division III officials were working
who had almost exclusively been detailed by their ministries for such
work. In Division II only political leaders were working whole time
who, for the most part, looked down upon the jurists with contempt.
The word “jurist” was a kind of epithet, and they saw in the people of
Division III only civil servants and deputies of the ministries. They
did not concede that we did any political work at all, and especially
not work of a party political nature. They did not acknowledge us as
political leaders at all. We in Division III were only a necessary
evil in the Party Chancellery; that is how they saw things, because
without the experts they could not get along. This disrespect--I
cannot call it anything else--this disrespect on the part of Division
II was especially strengthened by the attitude of Bormann toward
Division III. He had approximately the same attitude. The result was
that between Divisions II and III there was a constant malicious fight
for competency. Division II constantly tried to arrogate to itself
matters which could have something remotely to do with Party matters.
These attempts took place also when State matters were predominantly
or exclusively concerned; that is, if the effects would take place
in the State sector. This situation was favored by the unbelievable
conditions that existed in the registry. This registry had been built
up by laymen. In 1933 Germany had several million unemployed, and an
effort was made to find a place for these people and again give them an
opportunity to make a living. The result was that people were put in
such positions only to find a place for them, people who had no idea
about an organizational structure. In this registry, former streetcar
conductors and violinists were employed, people who knew nothing about
it. Therefore, the entries were constantly directed to wrong places and
then the other division did not let them go out. Whether a letter went
to Division II, or Division III, or directly to Bormann was in many
cases just a question of luck.
Q. I wanted to ask you also, in Division III was there also a
financially worse position compared with the people in Division II?
A. We were paid the same way as we were paid when we were in the employ
of the State, while the political leaders, the Main Office political
leaders, had their own salary scale; and I do not want to repeat here;
I can refer to what the witness Anker stated who explained that a
political leader of Division II in the same position as Anker got about
double the amount of salary than an official.
Q. I want to demonstrate to the Tribunal the borderline of competency
between Divisions II and III. I have here a document which the
prosecution believed they could bring into some kind of connection with
your case. It is Document NG-364, Prosecution Exhibit 108.[411] This is
the infamous letter about the lynching of Allied airmen who had bailed
out. The letterhead is the NSDAP, Party Chancellery. Further, the
leader of the Party Chancellery and the place from which it was sent is
the Fuehrer Headquarters. The date is 30 May 1944.
A. Even though this is a circular from the Party Chancellery at a time
at which I had been out of the Party Chancellery already for 5 months,
I do know that such circular letters in principle were not submitted
by Division II to Division III when they were in a draft form or for
cooperation, even if the police, the Wehrmacht, and the administration
of justice and their spheres of work were discussed in it.
Q. The letter is signed by Bormann. In the same document, that is
Exhibit 108, there is contained another letter which also has the date
30 May 1944. It is addressed to all Gau leaders and Kreis leaders, and
refers to Bormann’s circular letter. It is signed by Friedrichs. Is
Friedrichs the chief?
A. Friedrichs is the chief of Department II.
Q. Before, when you were speaking about the registry and the delivery
of letters, you mentioned that many letters went directly to Bormann,
to the Fuehrer headquarters. Thus, these letters did not go to Munich
to the divisions that had been established there. Was there any
standard in regard to the distribution of these letters, to whom they
were to be sent?
A. If personal letters to Bormann in his position as Reichsleiter or as
secretary of the Fuehrer were received by a minister or a Reichsleiter
or a Gauleiter or any other prominent person in the service of the
State or the Party, these letters always went first to Bormann in the
Fuehrer Headquarters. Other letters went quite frequently first to
Bormann. It depended entirely on who of the people I described before,
who did not have the requisite training at the registry, and the mail
got such a letter into his hands and how he forwarded it. Of course,
efforts were made to make as few mistakes as possible which would
arouse Bormann. The result was that as much as possible was sent to
Bormann so that the reproach could not be made that he had been skipped.
Q. Perhaps we can clarify this by means of an example. The prosecution
introduced Document NG-558, Prosecution Exhibit 143.[412] This is a
personal letter which Thierack wrote to Bormann, dated 13 October
1942. In this letter the information is passed on that in the
extermination of Jews and Poles the administration of justice wanted to
give a helping hand. In the form in which it is submitted, this letter
is addressed personally by Thierack to Bormann. I am asking you whether
this letter went via your Group III-C, that is the legal division, or
whether Bormann later sent it to your legal division and thus informed
you about it?
A. Whether this letter was sent to Bormann too, by Thierack, I don’t
know. It did not come to Munich to Group III-C. I personally saw this
letter for the first time here when the document was submitted.
Q. We have another document here, that is NG-280, Prosecution Exhibit
70.[413] It is a letter which Lammers, who was then Chief of the Reich
Chancellery, sent to Bormann. It is a complaint about an inadequate
sentence regarding a Pole. This document contains several letters.
We are here concerned with the third letter with the address: “To
Reichsleiter Bormann.” I ask you to also make a statement in regard
to this whether the legal group or you personally had this letter, as
shown to you, put at your disposal.
A. This letter came to Bormann personally, and in the same way as
the preceding letter from Lammers to Bormann which was written by
him personally. Group III-C, Bormann-Lammers, was not informed about
this correspondence. I have to add something here. Bormann had, after
all, two functions. He was leader of the Party Chancellery and he was
secretary to the Fuehrer. He stayed almost exclusively in the Fuehrer
Headquarters. It was often difficult to find out whether Bormann acted
as leader of the Party Chancellery or as secretary of the Fuehrer. In
a case like the one here, Exhibit 70, certainly the Fuehrer exercised
criticism and to that extent Bormann then acted as the Fuehrer’s
secretary. He then referred the matter to the State sector via Lammers.
In addition, an exterior circumstance must be considered between
the Fuehrer Headquarters and the Party Chancellery in Munich; there
were thousands of kilometers. For some time the Fuehrer headquarters
was in Vinnitsa in the Ukraine. In the immediate proximity of the
Fuehrer Headquarters were the field headquarters of Lammers, that
is, of the Reich Chancellery. For purely technical reasons the mail
went immediately back and forth between the Fuehrer Headquarters and
Lammers’ field headquarters.
Q. Another interim question, Mr. Klemm. You characterized Bormann in
two capacities; one, as leader of the Party Chancellery, and secondly,
as secretary of the Fuehrer. This letter which I am just showing to
you, however, contains the designation Reichsleiter Bormann. Was that a
third capacity in which Bormann worked?
A. In contrast to other Reichsleiters, as far as I know, Bormann became
Reichsleiter, more or less, in title only. Goebbels, for example, was
a Reichsleiter too, because he was in charge of the Reich Propaganda
Office. On top of that, he was also Reichsleiter Goebbels, the Gau
Leader of Berlin. At the very moment in which Bormann became leader of
the Party Chancellery and in addition secretary of the Fuehrer, the
concept Reichsleiter did not signify a special office or a special
function any more.
Q. That is enough. Since you have described the geographical and
technical conditions in which the correspondence went as a rule, I now
want to ask you in principle, did you at all receive information about
that correspondence which went to Bormann to the Fuehrer Headquarters
or which went from Bormann from the Fuehrer Headquarters or which went
from Bormann from the Fuehrer Headquarters to other State offices or
Party functionaries?
A. That depended. There were several possibilities. Either Bormann
answered such letters immediately himself, or those parts of the Reich
leader’s office which were also in the Fuehrer Headquarters dealt with
them. I have already mentioned that sometimes up to three jurists
belonged to the Reich leader office who advised Bormann.
A certain proof of the fact that Bormann dealt with a matter himself
is the initials “Bo.” Very frequently we were not informed about such
matters, because often they were put in the files of the secretary of
the Fuehrer which did not concern us in the Party Chancellery after all.
* * * * * * *
Q. Mr. Klemm, you spoke about several possibilities concerning Bormann
receiving letters or sending letters. You said it all depended on the
circumstances. I now ask you to explain to the Tribunal further what
additional possibilities existed in order to clarify whether you were
informed about any measures taken by Bormann or not.
A. The second possibility was that Bormann wrote his decision or his
opinion on the margin of the letter and then gave it to the Referent
in the Party Chancellery and left it up to him to draft the answer in
accordance with the decision he had written in the margin. Whether the
answer to the letter then formulated was signed by Bormann himself, or
whether the Referent, his group leader, or the division chief signed
it, depended in each case on who signed the first letter.
Q. The documents which I just mentioned were all brought into close
connection with your person by the prosecution, apparently solely
because the Party Chancellery is mentioned on these documents. I
now come to Document NG-412, Prosecution Exhibit 77.[414] On this,
there is your name. The connection with your person is very clear
here. It concerns an approval that you gave to a draft of a law which
the Reich Ministry of Justice had drafted on order of the Party
Chancellery. The contents were retroactive application of regulations
concerning treason. I would like to ask you on the basis of what you
explained, was this approval given on your own decision or on Bormann’s
instructions?
A. I did not give this approval by my own decision. In the case of
drafts of laws in particular, Bormann always reserved the right to make
the decision for himself. In this case the letter concerned, which
the Ministry of Justice had, among others, probably also addressed to
the leader of the Party Chancellery, was returned from the Fuehrer
Headquarters. Probably on the margin it said “approved,” or “yes,” or
“in accordance,” those were the words which Bormann used; and since
in this letter of the Ministry of Justice a wish of the Fuehrer was
referred to which he had expressed already before in discussions, it
was quite clear for Bormann that he would agree, and in such a case I
could then sign.
Q. This letter of the Party Chancellery is dated 18 June 1942 and also
has the file number III-C; that evidently was issued by the legal
group. I would like to ask you now to describe somewhat more in detail
the sphere of the task of the legal group.
[_Recess_]
Q. We discussed Exhibit 77, that was the approval of the Party
Chancellery to a draft or law which was prepared by the Ministry of
Justice. I had asked you what matters in the legal group of the Party
Chancellery were dealt with by you in addition?
A. I want to summarize the tasks of the legal group briefly. First it
had to deal with laws and drafts and decrees of the Reich Ministry of
Justice, unless for reasons of their subject, they were dealt with by
another group, because that group appeared to be competent. Secondly,
penal matters based on the law on insidious acts, as far as on the
basis of legal provisions the approval of the chief of the Party
Chancellery was required for the prosecution. Thirdly, complaints from
Party offices or individuals against decisions by the courts. Fourth,
complaints from the administration of justice against interference by
Party offices into pending trials. Fifth, to observe especially civil
and penal cases which concerned the Party. Sixth, matters of legal
reform, and seventh, expert opinions in the field of the Party law.
Q. As for the first group, approval of laws and drafts, was that
approval of the Party Chancellery for drafts of law based on a legal
foundation?
A. I have already made statements concerning that question when I
explained why there was a Department III, the so-called state law and
constitutional law department in the Party Chancellery. The chief of
the Party Chancellery, on the basis of certain legal provisions in
the case of any law or draft or any decree was a minister who had to
participate in its drafting, that is to say, he had the same position
as a minister participating in legislation.
Q. In discussing the first part of your activities you made the
reservation that the legal group in the Party Chancellery dealt only
with those drafts which for reasons of their subject did not belong
within the competency of another group. Would you please elucidate to
the Tribunal what you mean by that?
A. First I have to make a more general reservation. It was not the task
of individual groups of Department III or of Department III itself to
display any political activity. The Party political elements connected
with a problem were to be dealt with by the political offices of the
Party. I had listed before the Reich Legal Office, the Office for
Agrarian Policy, the Office for Public Health and others. These offices
within the Party developed their policies through the Reichsleiters
who were in charge of these offices, and did that directly with the
Fuehrer. The groups of Department III, and above all not the Legal
Group, could not deal with the individually specialized matters to the
extent that it would have been necessary. I have already explained that
Group III-C comprised four to six officers. That group was balanced
in the Ministry of Justice by well over 200 experts. Our tasks--and
above all because each individual in that group considered himself
a representative of the thought of the Ministry of Justice,--were
to prevent difficulties which might arise by some legal arrangement
between the Party and the offices of the administration of justice. For
instance, in Group III-C, we always were very skeptical to any general
clauses which were contained in a draft and laws because such general
clauses are the pets of the layman, and he sticks to them because
that affords him the opportunity to criticize. That arrangement which
was as such provided by law that the chief of the Party Secretariat
always had the capacity of a participating minister, was not agreed to
by various sectors of the administration of the State, and thus, for
instance, Goering in his various positions which he held at the same
time, as Minister for Aviation, as Plenipotentiary of the Four Year
Plan, and as chairman of the Ministerial Council for the Defense of the
Reich, never stuck to it, and never submitted any drafts. Likewise, the
High Command of the Armed Forces never submitted the drafts of laws as
far as they concerned the administration of justice, penal regulations,
et cetera, to the Party Chancellery. The individual group, however,
the legal group could not independently deal with a draft, if problems
were dealt with in that draft which did not immediately concern the
legal group but in their essence concerned other ministries, for
instance, all questions of nationality, were dealt within Group
III-A. For instance questions of Poles and Jews, Group III-C, to cite
another example, in the field of law concerning hereditary estates,
could not decide independently. That was claimed by Group III-B, which
was in charge of questions of food, the Food Ministry, to which the
hereditary estate court belonged also. I believe these examples should
be sufficient.
Q. You had set forth that the various subgroups of III were offices
corresponding to the institutions of the State, that you would consider
the Ministry of the Interior as analogous to Group III-A. I ask you
now since you mention Poles and Jews, the problems of which were to
be dealt with by III-A, whether the purpose for that was that as far
as the organization of the State was concerned, the Ministry of the
Interior took a leading part in dealing with these questions?
A. Group III-A had dealt with these problems because it was the
equivalent of the Ministry of the Interior. It was dealt with there
only and if on the one side the Ministry of the Interior took the
leading part, then Group III-C had nothing to do with those matters at
all.
* * * * * * *
Q. Then, since you worked in the Party Chancellery, Document NG-151,
Prosecution Exhibit 204[415] was submitted in connection with you.
It is a proposal on the part of the Reich Minister of Justice of 3
August 1942, with the designation “Limitation of Legal Remedies in
Penal Matters for Jews.” On page 108 of the German text, a letter
is submitted which has the signature of Bormann. Next to Bormann’s
signature there is also the file note “III-C,” that is to say, the
symbol of the Legal Group [in the Party Chancellery].
I ask you to comment on that and to tell us whether you or your Legal
Group had anything to do with that matter.
A. To answer this intelligently, I have to refer to the entire document
submitted by the prosecution. The document comprises 25 pages, and that
letter from Bormann is put at the end. The entire procedure, however,
can be understood only if one puts these various documents in the
correct chronological order, for only then can one see how this entire
development can be subdivided into three phases.
On 3 August 1942, the Ministry of Justice distributes its first draft,
which is draft number 1. The letter of 13 August 1942 shows the
approval of the Reich Ministry of the Interior, with supplementary
suggestions. In the meantime, however, the Ministry for Propaganda
quite apparently, although there is nothing contained in this file
about that, has made counterproposals and distributed those to all
offices concerned. That can be concluded from the fact that on 13
August--that is to say, on the same day when the Ministry of the
Interior first approved proposal number 1 with certain supplementary
requests--on the very same day, the Ministry of Justice distributed
suggestions for draft number 2, at the same time referring to
suggestions made by the Ministry of Propaganda. That draft number 2
was approved on 20 August 1942 by the Food Ministry, which also stated
requests for supplementation in its field, that is, in the field of
civil administrative law. Then, on 9 September 1942, the chief of the
Party Chancellery states his approval, and in that letter also the
request is expressed that the suggested draft concerning a restriction
of legal remedies for Jews should be supplemented.
As for the second phase, dealing with draft number 2, there are two
events to be noted--one, a certain activity of the Reich Chancellery,
that is to say Lammers, who suggests to the General Plenipotentiary for
the Administration of the Reich, that is, the Reich Minister of the
Interior, that he should see to it that these suggestions are adjusted
to meet the requirements and then submitted.
And the second is a letter from the Reich Leader SS of 25 August 1942,
who suggests a conference regarding draft number 2. On 10 September
1942, the High Command of the Wehrmacht also states its approval, and
that second phase of developments ends with the result that the leading
part is transferred from the Ministry of Justice to the Ministry of the
Interior. The final conclusion of that phase is the letter from the
Plenipotentiary for the Administration of the Reich, that is to say,
the Ministry of the Interior to the participating supreme offices of
the Reich containing draft number 3. Now the third and last phase of
this development starts, and the procedure as submitted in documentary
form by the prosecution for more than half a year does not produce any
results as far as matters developed. In the documents submitted by
the prosecution the only further development is that on 3 April 1943
the Minister of the Interior writes to the Reich Chancellery, that is
to say, to Lammers and encloses a letter by Kaltenbrunner from the
police of 8 March 1943 where the demand is made that the Jews should be
completely removed from the administration of justice. These documents
then contain only two further notations of the Reich Chancellery of
6 April 1943 and of 21 April 1943. The first notation deals with a
conference between the Under Secretary Kritzinger on the part of
Lammers, Reich Chancellery, Stuckart on the part of the Ministry of the
Interior, and Klopfer for the Party Chancellery, the Party Secretariat.
And the last notice of 21 April refers to a conference of various under
secretaries from the Reich Chancellery, Party Secretariat, Ministry
of the Interior, Ministry of Justice, and Kaltenbrunner on the part
of the police. The result of that conference is what we designate as
the 13th decree amending the Reich Citizen Law. The Party Chancellery
letter from 9 September 1942 does only refer to draft number 2 of the
Ministry of Justice, that is the draft of 13 August 1942. The problem
of removing the Jews entirely from the administration of justice and
to declare them incapable of inheriting property, that problem was not
all under discussion at the time when that letter was written, and the
suggestions made in that letter do not represent any change against
the fundamental character of that draft. They supplement the draft
only to the legal systematic side. In as far as the Party Chancellery
suggests that legal remedies should be included, they are suggestions
of a minor weight compared to those that are already planned in the
draft. According to the draft, limitations were provided to appeals
and revision, that is, matters which are directed to the next higher
resort. Whereas in the suggestion for supplementation made by the
Party Chancellery legal remedies are referred to which are normally
directed to the same court in the form of a reminder or a complaint.
The next suggestion to limit the right of challenging a judge is the
same provision which is also part of the IMT charter. This letter of
9 September 1942 I did not draft. Besides since it was issued more
than 1 month after the letter of 13 August, other offices must have
participated. Who it was in Group III-C who drafted that letter and who
was the referent dealing with the matter I can no longer tell. I cannot
even recall ever having seen that letter such as Bormann signed it.
It is quite possible that I was away on a duty trip and that my deputy
signed it for me.
Q. I believe, Mr. Klemm, that that is sufficient.
* * * * * * *
Q. Then, concerning Poles, Jews, and members of the Protectorate,
Document 664-PS, Prosecution Exhibit 348,[416] was submitted, that
is a circular letter from Himmler with the classification of secret,
and was sent to all Reich authorities. Your initial is on that letter
because it was received in the Ministry and apparently came to your
attention. In this letter it is stated that posters such as “no Jews
permitted to enter public places and stores” should disappear. It was
no longer necessary to show such practice to the public because the
people concerned by evacuating and isolating them were no longer there.
I ask you, did that lead you to the conclusion that the Jews were to
be exterminated or already, at the time of this circular, had been
exterminated?
A. I would never have gotten a thought of that kind. I know nothing
about the places in the East. I knew that Jews lived in a city for
themselves in Theresienstadt near Leitmeritz. On the contrary, I
remember having seen series of pictures in magazines, I believe
pictures from Theresienstadt were shown of the Jewish mayor, of the
Jewish police, also of the baths and restaurants, and similar things.
Also, I believe from Warsaw, such pictures were shown in German
illustrated magazines. One could not gather any more from that circular
letter than that or conceive the thought that it had anything to do
with the extermination or anything similar to it.
* * * * * * *
Q. In addition, Document NG-900, Prosecution Exhibit 453,[417] was
submitted against you. This concerns a document which treated so-called
complaints of descent of Jews. The decisive question in this document
is whether you, from the letter which is contained in this document,
which was written by the chief of the SD and the Security Police, could
gain the conviction that Jews should be exterminated. If you have the
document in front of you--it consists of several letters--the first is
of 3 May 1944, there the chief of the SD writes to the Reich Minister
of Justice in this letter, and the subject is a request for information
about reports regarding Jews. Please comment on this.
A. In regard to the first question I can only repeat what I have
already stated in regard to Prosecution Exhibit 348. No such thought
ever occurred to me. Moreover, I only saw the introductory letter
of this document on which the Minister had written “V”--which meant
“Vortragsanordnung,” schedule of report. With that, the matter was
taken out of my sphere of activity.
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG[418]
_DIRECT EXAMINATION_
* * * * * * *
DR. KOESSL (counsel for defendant Rothaug): It has been
asserted that you had coupled together the Katzenberger and Seiler
proceedings in order to exclude the Seiler woman as a witness.[419]
What was the situation there?
DEFENDANT ROTHAUG: Under the German Code of Procedure, there
are always as many penal proceedings pending as there are defendants.
Under certain conditions, such penal proceedings can be tried together
for the purpose of uniform trial and decision. That is what we call
joinder of penal cases. That joinder may be decided by the court,
concerning cases which are pending with it separately. But such
joinder may be established by the prosecution itself by one combined
indictment. That was what was done in the Katzenberger-Seiler case. The
prosecution, by filing one indictment for both defendants, had already
established the joinder prior to the files reaching the court. The
joinder of the two cases was therefore neither due to a file prepared
by me, nor to a file prepared by the court.
Q. Would it have been possible for the prosecutor to proceed
differently?
A. Naturally. He could have filed separate indictments. The question
was merely whether that would have been correct from the technical
point of procedure.
Q. What are the legal provisions on which a joinder of penal cases is
based at the Special Court?
A. A joinder is based on article XV, section 2 of the competency order.
Q. When do the conditions exist for a joinder, such as demanded by the
law?
A. Such conditions can arise from all sorts of situations. They exist
in particular if one offense developed from another offense, and if the
judgment has to be based on the same facts. That was the case in the
Katzenberger-Seiler affair, which we have been discussing.
Q. What was the reason for the prosecutor to connect the two cases?
A. Both cases, as is proved clearly by the opinion of the court, had
to be decided on the basis of the same facts. Therefore, a joinder was
altogether natural and corresponded to the customary treatment such as
was applied in other cases as well.
Q. What was the legal nature of such joinder?
A. It was purely a measure of expediency.
Q. Is a defendant entitled to ask for not combining his case with that
of another defendant because in the case of a joinder he loses evidence?
A. The defendant does not have such a claim. According to the general
legal doctrine, which existed prior to 1933, a joinder is admissible
even if, as a result of a joinder, one codefendant can no longer appear
as a witness. But if it is decisive that the codefendant should appear
as the witness, the two cases can be separated after all so as to have
an opportunity to examine the codefendant as a witness. But that is
left entirely to the discretion of the court, and the defendant has no
claim to have that question decided in one definite way.
Q. When several penal cases are combined, does that mean that all
possibility is excluded to examine one of the codefendants in the same
proceedings as a witness? I would like you to supplement your previous
answer and to tell us whether it is possible temporarily to separate
proceedings.
A. Such temporary separation is allowed expressly by jurisdiction.
Therefore, during one proceeding, temporarily a separation can be
ordered. One codefendant can be examined as a witness, and after he has
been examined the case can be recombined.
Q. Did anybody at any time--be it the prosecutor, the defense
counsel, or the defendant--during the trial make a motion to separate
proceedings?
A. Such a motion was not made either at the trial or outside of it by
anybody. Not even the mere idea of doing that was ever mentioned, and
the reason was that at that time nobody regarded the joinder of the two
cases as a defect.
* * * * *
Q. In the case under discussion, was it likely that the chances of the
two defendants might be affected by joining their cases?
A. As I have stated before, the legal position of the defendants could
not be affected, and their chances were not affected either. If one
had thought that their chances might be affected, I think in that
case the two defense counsel would have made a motion to have the two
proceedings separated. If one wishes to judge the situation properly,
one has to bear in mind the following: that is to say, one has to
think of the situation such as it would have been if the Seiler woman
had not been a codefendant but a witness. In that case, she would
have made no different statements at the trial than she had made at
her interrogation under oath before the investigating judge, for she
made the same statements as a codefendant, and we had to discuss her
statements under oath before the investigating judge from every point
of view for the purpose of the verdict. What difference would there
have been, as far as our judgment was concerned, if she had repeated
the same statements at the trial in her capacity as a witness? The real
problems of the proceedings would and could not have been affected in
any way by that.
* * * * * * *
PRESIDING JUDGE BRAND: Were tickets issued for admission to
the trial?
DEFENDANT ROTHAUG: Yes, Your Honor.
DR. KOESSL: I shall come back to those tickets later. What
importance had to be attributed to the fact that a trial was held in
front of such a large public?
DEFENDANT ROTHAUG: Under the German Code of Penal Procedure,
the fact that the public is admitted to a trial constitutes one
guaranty that the proceedings will be conducted in an orderly manner.
Q. Did Katzenberger have a defense counsel?
A. Yes, he had.
Q. Was that defense counsel a Jew?
A. Yes, he was.
Q. Did the Seiler woman have a defense counsel, too?
A. Yes, she had.
Q. What sort of a man was the defense counsel for Seiler? Was he a
National Socialist, or what was he?
A. I knew him. He wasn’t a National Socialist for certain. My
impression was that he was entirely uninterested in politics and
devoted to his profession.
* * * * * * *
Q. Now, we’re going to examine the statements by the witness Seiler.
The statements by the witnesses Ferber, Seiler, and Dr. Baur[420] are
criticizing your method of conducting the Katzenberger case.
According to the testimony of the witness Seiler, you addressed the
audience and said--“The Jews are our misfortune. It is the fault of
the Jews that this war happened. Those who have contact with the Jews
will perish through them. Racial defilement is worse than murder,
and poisons the blood for generations. It can only be atoned by
exterminating the offender.” (_Tr. p. 1053_).
Did you make remarks of that kind, or of a similar nature, or what
exactly did happen?
A. That expression--“The Jews are our misfortune” or “It is the fault
of the Jews that the war happened,” or “Those who have contact with
the Jews will perish through them”--those expressions are well known
slogans from the Stuermer, which I think appeared in large letters in
every issue of the Stuermer.
PRESIDING JUDGE BRAND: Mr. Witness, the only question
before you is whether you used, in substance, the language which was
attributed to you. You may answer that question. We are not concerned
with who else used the same language.
DEFENDANT ROTHAUG: Neither on duty nor in my private life did
I use such generalizations, but the facts which have been discussed
here, and which were mentioned in that issue of the Stuermer,
concerning all that I would like to give my view on one point. That is
the question as to war guilt. I can remember more or less exactly--and
that idea is also mentioned in the opinion of the judgment in the same
way in which I expressed it at the trial. Naturally, it was not the
purpose of the trial to prove that it was the fault of the Jews that
war had broken out. The point was, however, this. As is known, both
defendants tried to make the situations which incriminated them appear
more harmless, as if their relations had been everyday matters. And
in that connection, I remember that I put it to Katzenberger that,
particularly here in Nuernberg, he must have known that such relations
were particularly dangerous even if the relations had been harmless,
because, ever since 1933, he had observed the developments, and then,
finally, war had broken out and the Jews were held responsible for
the war, and all these events should have caused him to be wise and
to abandon relations which were bound to endanger him, even if those
relations had been only harmless--and if they had been harmless it
would, after all, have been easy to abandon them. That thought of
which I made use by way of arguments, both at the trial and in my oral
opinion, that thought appeared in the Stuermer. It said, if I remember
correctly: “He also mentioned the fact that it was the fault of world
Jewry that war had come.”[421]
DR. KOESSL: Now, it has been alleged that in other cases too,
you addressed the audience. What were the speeches about? What was the
purpose of those speeches?
DEFENDANT ROTHAUG: I am charged with having addressed the
audience, particularly in connection with the Katzenberger case. In
addition to the generally acknowledged fact that, under the German
Code of Penal Procedure, trials have to be held in public, there is
also a fact that by the trial this general law consciousness should be
deepened--
PRESIDING JUDGE BRAND: We have extended beyond our time for
the recess. We’ll take 15 minutes’ recess now.
[Recess]
DR. KOESSL: Witness, you came to the explanation of the
connections where you have made the so-called speeches to the audience.
Will you explain the purpose and the connections for making these
so-called speeches?
DEFENDANT ROTHAUG: I base myself on the fact that the reason
for the trials being public according to the German rules of procedure
was that the conscience of law should be strengthened and that the
population should be educated in the meaning of the laws. Our sphere
dealt with entirely new legislation, new in consideration of the basis
on which it was founded and of its purposes; for that reason--and
of course one has to consider that this new legislation provided
severe and most severe consequences, and that makes it understandable
why I--and that was with approval of all interested offices of the
administration of justice--was of the position that it was necessary
to bring as quickly and as effectively as possible this legislation
before the population in order to warn them because that warning in a
certain sense is a justification of the severe sentence, particularly
the extent of the sentence; and that explains why I had the intention
to conduct my trials before the public and as many people as possible
and as broadly as possible. That also explains why it was not only my
intention to describe the bare legal facts but the offenses regardless
in what field they were committed and to explain them from the point of
view of the doctrine of the State and from the points of view of the
legal system and the political point of view. The guiding thought for
me was that it was our duty, and at the same time, our justification
before the public, to explain that the sentence pronounced in any
individual case was the direct consequence of the legislation provided
therefore. It has to be added that fundamentally according to German
rules of procedure, the sentence can only be based on the entirety of
the trial; that is to say, that all points of view which are concerned
with the penalty or the extent of penalty have to be discussed in all
details during the trial because that alone puts the defendant in a
position to recognize the main points which may be directed against
him; and I also want to emphasize that at no time were lectures made
for their own purpose, but that such statements were made in connection
with the testimony of the defendant or the witnesses at the time and at
the place where it seemed proper.
Q. Ferber charges you generally, and particularly, in the case
Katzenberger.
A. I intended to add, that it is therefore quite certain that at
that session I also stated my opinion concerning the problem of race
defilement on the basis of the doctrine of the State and on the basis
of the legal system, and on the basis of our political and legal
foundations. That I also discussed the danger in the manner that these
things were regarded at that time according to the legal situation, the
danger arising from the mixture of races to coming generations, that I
consider to be a fact. What words I used and what thoughts I may have
expressed in detail in discussing these matters, that, of course, I
could no longer tell today. But what I object to is the assertion that
these may have been statements of the level of the “Stuermer;” and with
absolute certainty I should like to exclude the possibility that in
that connection I demanded any physical destruction. That, according to
the law, would not have been possible. That, of course, based on the
fact of the war which went far beyond any racial point of view.
* * * * * * *
Q. The witness Seiler in her direct examination testified that she and
the defendant Katzenberger had denied under oath at various times those
relations. Was Katzenberger heard under oath?
A. No, he was not heard under oath. That was not admissible under
German law because German law holds that the defendant had to be
entirely free to use all possibilities for his defense. That is
considered a certain guarantee to aid in finding the truth.
Q. The witness Seiler also stated in her direct examination that the
judge, Rothaug, used the assumption of her guilt as the basis for the
entire conduct of the trial. The reason for that discrimination in her
opinion had been that Rothaug did not want to hear any answer. Did you
examine the witness Seiler thoroughly?
A. Of course, she was examined thoroughly, and I may point out--and
that can be found also from reading the opinion--that this was a
so-called case of circumstantial evidence, that a large number of
individual situations of more or less importance were compiled in
order to make it possible to reconstruct the circumstances which were
of importance for the evaluation; and it was always like that, and it
was no different in this Katzenberger-Seiler case, that I discussed
with the defendants every phase and every little detail; not only in
order to completely clarify any particular action, that of course, was
the main purpose; but beyond that it was of importance to establish
what the point of view of the defendants was, and how they described
matters; that is the reason why that matter took a day and a half,
and in addition to that, after the examination of every witness who
offered something new, again the two defendants were heard thoroughly
concerning the new situation. At any rate the evidence which was taken
as the basis for the judgment, was discussed in all possible detail.
* * * * * * *
Q. Among the judges concerned during the deliberations, was there any
doubt about the guilt of Katzenberger?
A. I remember the deliberations very well. That conference was as
peaceful as could be; for in the course of the trial, which lasted
a day and a half, the entire occurrence, as far as the facts were
concerned based upon the statements of the defendants and on what
the witnesses testified to, had developed into such a clear picture
that there could not have been any differences of opinion; and, after
a very short time--and I remember that very well also--we arrived
at a decision and actually started to write the judgment down, but
considering the importance of the case, we extended the time for
deliberations so that the impression should not be given that we wanted
to pronounce a hasty decision. There were no difficulties at all, the
reason being that the facts themselves were of compelling logic, and
that anything else which was the consequence of the facts just arose
from them logically and in the way one had to evaluate those things
at that time, and of course, we could not evaluate it based upon any
different philosophy.
Q. Which motions were made by the defense counsel?
A. I would like to say with certainty that one of the defense counsel,
without being able to tell who it was, made an attempt in the direction
of a lenient sentence, and he was trying to combat its evaluation as a
serious case, but there was no doubt left about the basic facts in the
case. That is the way I remember the case, and it must have been like
that; and that was also manifest by the calm deliberations where no
points of argument came in existence.
Q. Was any one of the associate judges of a different opinion
concerning the extent of punishment? Did any one of them vote against
the death penalty, for instance?
A. The core of the question from the very beginning was the following.
PRESIDING JUDGE BRAND: Let me ask you a question. Did all of
the judges vote for the death penalty? Answer yes or no.
DEFENDANT ROTHAUG: Yes, absolutely.
PRESIDING JUDGE BRAND: Next question.
DR. KOESSL: At that time, among the jurists around you--but
those who were not in direct contact with the case--were there any
discussions about that sentence?
DEFENDANT ROTHAUG: In no way at all. That sentence was never
criticized in any way or considered doubtful by jurists who were not
connected with the case which would normally be possible.
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[422]
_DIRECT EXAMINATION_
* * * * * * *
DR. WANDSCHNEIDER (counsel for defendant Rothenberger): We
come now to a new subject which plays an important part within the
scope of national socialism; that is, the Jewish question. Will you
please tell the Tribunal quite generally what your point of view is
concerning the Jewish question.
DEFENDANT ROTHENBERGER: Concerning the Jewish question, there
were in the NSDAP already before 1933 two factions which opposed each
other. One was the so-called Streicher wing which put the racial
problem in the foreground. The other wing was the so-called social
wing, led originally by Gregor Strasser. Gregor Strasser, already as
early as the end of 1932, went into open opposition, and in 1934 was
killed together with Roehm. Among the men who emphasized the beliefs of
that social group was Kaufmann. That was conditioned by the fact that
in Hamburg, of course, social problems played an important role. The
Jewish question did not play the same part in Hamburg as in many other
parts of the Reich. One reason for that was that on account of a large
Portuguese immigration in Hamburg, the connection to western Jewry
had been very strong for centuries; particularly the so-called good
old Hamburg families are greatly mixed by intermarriage. Furthermore,
it was due to the fact that the people of Hamburg are generally more
tolerant in their basic temperament.
Another indication of the attitude of the people of Hamburg to the Jews
was, for instance, that the display of the so-called Stuermer boxes
in Hamburg was prohibited by Reichstatthalter Kaufmann. I, of course,
officially and also privately was in close contact with Jews. I knew
the advantages and disadvantages of Jewry.
Q. Now, of course, it is known to you, Dr. Rothenberger, that the
Party program ambiguously states its position to the Jewish question.
I assume you knew the Party program at that time. Could you comment
on that as to what thoughts you had concerning the attitude the Party
would take to the Jewish question?
A. In the beginning of 1933, I believed that just as in many of the
Party platforms many points are made which later do not play an
important role. Gradually, however, I realized that the general line
became more severe. It is beyond doubt that any German under the
influence of propaganda considered a limitation of the Jews in cultural
and spiritual life absolutely required, and so did I. But what was
generally rejected in Hamburg was any method of violence, any economic
exploitation and any kind of hatred. As for the general line, such
as it developed gradually in Germany, I could not change anything
anymore. In each individual case of my personal and official sphere of
influence, individually and from the human point of view, I helped.
Q. In connection with this question, the pogroms against Jews of
November 1938 play a part. Will you please state to us what experiences
you have made of these pogroms and what your attitude was.
A. On the day before the pogroms--that is the night before--by way
of rumor I heard of the intention that Jewish shops were to be
looted. There again to obtain information I got in touch with the
Reichstatthalter Kaufmann who told me that he had asked for information
in Berlin because he had also heard about it, and he had already
alerted the Hamburg police too. He had posted them before the Jewish
shops so that nothing should happen, and in fact, in Hamburg nothing
did happen with the exception of a few individual cases. About that, in
the document submitted, NG-629--
Q. I refer to Document NG-629, Prosecution Exhibit 28[423] which has
already been mentioned.
A. It also mentions that due to the attitude of Reichstatthalter
Kaufmann, nothing happened.
Q. Will you please discuss now the question of the legal position of
Jews, as far as you had to do with it.
A. As for the legal point of view, of course in the course of years
many instances of conflict occurred to everyone; also to me. In a
meeting in Berlin about various legal questions negotiations were made,
and the result of these negotiations as far as it concerns questions
of civil law was passed on by me to the subordinate courts. As far as
matters of penal law were concerned, it was passed on by the General
Prosecutor at Hamburg. The opinion which the Ministry stated at that
time in matters of civil law was just about in accordance with my own
opinion.
Q. Here again we are concerned with Exhibit 28, which has already
repeatedly been mentioned; specifically the point of view of the
Ministry which Dr. Rothenberger mentioned and which he shared and
passed on to the subordinate officials can be found on the last page of
Exhibit 28.
A. If I may be permitted, I would like to point out that during
the same press conference I mentioned two further points; one the
question of sensational reports in the press about trials, where I
promised to get in touch with the competent agencies to see that such
sensational reports would have to cease; and the other concerning the
speed of signing the sentences. I pointed out that no pressure should
be permitted to be exerted on judges so that they should be given an
opportunity to work on their opinions in all peace and quiet.
* * * * * * *
Q. Dr. Rothenberger, we will now go over to another subject. Now we are
going to deal with the beginning of the war. I want to ask you about
the Jewish problem which we have already discussed. In what way did the
Jewish problem develop after the outbreak of the war, as far as your
opinion goes.
A. The outbreak of the war increased the difficulties of the Jewish
problem in Germany considerably. The situation became considerably
more acute, and in particular under the influence of propaganda. Under
that influence, naturally difficult legal conflicts arose as far as
the situation of a Jew in court proceedings was concerned. Previously,
as Dr. Schlegelberger emphasized, already there had existed separate
welfare institutions for Aryans and non-Aryans. There was the NSV
for the Aryans, and there were separate welfare institutions for the
non-Aryans. For the jurisdiction, that resulted in complete uncertainty
on the part of the judges as to the question whether a Jew can be
allowed to conduct proceedings without paying costs. There were courts
which granted that privilege; there were other courts that did not. I
considered that a uniform jurisdiction on these matters was necessary.
Naturally I was not uninfluenced by the situation then prevailing; and,
therefore, I supported a proposal to the Reich Ministry of Justice
that a uniform jurisdiction should be developed to the effect that
such privileges were not to be granted to the Jews. The importance of
those privileges concerning costs and nonpayment of costs has been
characterized by Dr. Schlegelberger who said that the State makes an
advance which the person concerned has to pay back, that is to say
he is not exempted from paying costs caused by court proceedings.
The prosecution in submitting evidence read out a sentence which is
supposed to have originated with me. I only want to correct the matter
to say that Document NG-589, Prosecution Exhibit 372,[424] shows that
that sentence is not mine, but was phrased by the Gau economic adviser.
The other exhibits which refer to that question are NG-392--
Q. Dr. Rothenberger, may I interrupt you for a moment so that we can
quote the correct exhibit numbers to the Court? They are Exhibit
373,[425] Exhibit 462,[426] and Exhibit 372. Would you please continue?
A. The only thing I can add is that it happened fairly frequently,
and that it appears altogether understandable that the Jews in order
to avoid having their property confiscated upon their emigration,
transferred their property to somebody else in a fake transaction.
Thus, the whole problem became more complicated and more difficult for
the courts.
Q. In what way were you concerned with curtailment of Jewish legal
rights which emerged in the subsequent period?
A. I had to deal with that question once again in the spring of 1943.
At the end of April, Thierack one day asked me to go see him and told
me that on the same day a discussion would take place, a so-called
conference of under secretaries. That conference was to be held at the
Reich Ministry of the Interior. I believe I had no knowledge of those
developments until then.
Q. May I interrupt you, Dr. Rothenberger? At the moment we are
concerned with Document NG-151, Prosecution Exhibit 204,[427] which Dr.
Rothenberger wants to discuss. This Exhibit 204 is composed of a number
of letters in which a draft on curtailment of legal means and legal
recourse for Jews is discussed and in which various ministries give
their views. Will you tell us, please, whether you had anything to do
with that matter?
A. Until that conference I had nothing to do with the previous history.
That is due to the fact that the first draft originates from a time
before I had assumed office. It is dated 3 August 1942, and it is
signed by Dr. Freisler. The second draft is dated 13 August, and that
also was before I assumed office. As this was a matter concerning
penal law I was not informed about the developments during the
subsequent period. As I can see from the documents now, in September
1942 the so-called GBV, the Plenipotentiary General for the Reich
Administration--that was the Reich Minister of the Interior--was in
charge of the drafting and conference which I have mentioned took place
at the Reich Ministry of the Interior.
Q. Would you tell us something about the course of the conference of
April 1943?
A. Thierack, before I went to the conference, handed me a draft. That
was the draft by the GBV of 25 September 1942. That was already 6
months old by that time because the conference took place in April
1943. I was annoyed anyhow that I was now to deal with a matter the
previous history of which I did not know. I had a look at the draft in
Thierack’s office and when I had read it, I said to him that I was
against such far-reaching restrictions.
What seemed embarrassing to me, in particular, was the provision that
if the Jew was not to swear an oath, he was yet to be punished for
perjury. Thierack said to me that doesn’t matter. In his somewhat
brusque and curt manner he said, “You will have to go there, for I am
the minister and I cannot attend a conference of under secretaries.”
That, as a matter of fact, was not the custom. I went to the Reich
Ministry of Interior. To begin with, I maintained reserve, because I
had not dealt with the matter beforehand. Then I heard from the others
who were present there that they too were against such an ordinance.
Thereupon, I said that that was my personal opinion, too. Of course, I
could not say as to the minister’s decision. He was in favor of it, as
he had told me beforehand.
Then the provisions of that draft were dropped. Only one person who was
present objected; that was Kaltenbrunner. Kaltenbrunner said he had to
attach a decisive importance to at least two provisions becoming law.
He was referring to 2 provisions which, in effect for some time, had
already been applied, which however, required subsequent legalization.
One provision was that the property of a Jew who dies goes over to the
Reich. He said--as is evident in detail from the exhibit--that until
now Jewish property in the case of death had been regarded as so-called
property of an enemy of the State and had, therefore, been confiscated
all along. But he would like to have a legal provision, because that
would constitute a technical administrative simplification.
That provision, as I see from the file, had not been incorporated into
the draft before by the Reich Ministry of Justice, but by the Reich
Ministry of Interior. It appears for the first time in the draft of 25
September 1942. The Ministry of Justice, thus, did not deal with it.
The second provision--
PRESIDING JUDGE BRAND: Would you mind telling us what happened
to that provision?
DEFENDANT ROTHENBERGER: Yes. That provision did become law
afterward. Yes, I meant to say that.
The second provision which Kaltenbrunner wanted to become law and
considered necessary was a provision, which has already been discussed
here, and it concerned handing over the penal jurisdiction over
Jews from the administration of justice to the police. As far as I
was concerned that resulted in an entirely new situation, for that
provision was not contained in the previous draft. I felt I could not
assume any responsibility for such a provision, all the more so as I
had no formal competence for penal matters. I would have to report to
the minister as I had been requested by him to do.
DR. WANDSCHNEIDER: Did you make a report to Dr. Thierack?
DEFENDANT ROTHENBERGER: I went to see Thierack on the same
day, and I told him that he had now for the second time confronted me
with a very embarrassing situation, by bypassing me in a fundamental
question of the administration of justice which did not concern me
formally, but which concerned me as a jurist and as a human being. I
could not assume the responsibility and I offered him my resignation.
Thierack was very angry and said, “I shall decide the day when you
will leave the office.” In saying that, he referred to the compulsion
to which all of us were subject in time of war, that is to say, the
compulsion of not being able to leave our service voluntarily.
He then added ironically, “For the rest--in the future you will have
nothing to do with penal matters even when I am away for I have already
asked Lammers to appoint a second under secretary,[428] and I shall
get some help that way.” I mentioned these facts briefly in another
connection this morning.
Subsequently I had nothing to do with the ordinance. I merely read
that later, on the first of July 1943 with both provisions; it took
effect. I felt unfree, and from that time on I stuck all the more to
the one task, which still remained to me, that is, the task of the
administration of justice proper; the strengthening of the judiciary.
* * * * * * *
_CROSS-EXAMINATION_
* * * * * * *
MR. KING: Dr. Rothenberger, the document which has been placed
before you is NG-1656 [Pros. Ex. 535].[429] It is an information for
the Fuehrer report. I would like to, with your concurrence, read it.
You say--“After the birth of her child a full-blooded Jewess sold her
mother milk to a pediatrician and concealed the fact that she was a
Jewess. With this milk babies of German blood were fed in a nursing
home for children. The accused will be charged with deception. The
buyers of the milk have suffered damage for mother’s milk from a Jewess
cannot be regarded as food for German children. The impudent behavior
of the accused is an insult as well. Relevant charges, however, have
not been applied for, so that the parents who were unaware of the true
facts need not subsequently be worried.”
Do you recall the origin of this particular document?
DEFENDANT ROTHENBERGER: I do not remember the facts. It
is quite impossible that I wrote this, because I never drafted the
Fuehrer Information. I do not even remember whether it ever came to
my attention later. I ask to be shown the original of that Fuehrer
Information.
Q. I will be very happy to do that, Dr. Rothenberger. Is that your
initial?
A. That shows that I have seen it later, but not at all that I was
the author. It can be seen from the original, naturally, that the
Fuehrer Information had neither a date nor a signature and the Fuehrer
Information also shows that there is a notation on it “to the Under
Secretary”--for information, that means. As I can see from the initial,
it apparently came to my attention without, however, identifying myself
in any manner with the contents of that Fuehrer Information.
Q. Have you finished, Dr. Rothenberger?
A. Yes.
Q. Your feeling, of the moment, is that you had nothing to do with the
authorship of this document?
A. I consider it quite impossible that I would have identified myself
even at that time with such an opinion.
PRESIDING JUDGE BRAND: I have a question of information. Would
your initials have been placed on it before or after the distribution
of the document?
DEFENDANT ROTHENBERGER: Whenever such Fuehrer Informations
were sent out--and I cannot see that that was the case--then they were
afterward brought to my attention.[430]
* * * * * * *
EXTRACT FROM THE TESTIMONY OF DEFENDANT OESCHEY[431]
_DIRECT EXAMINATION_
* * * * * * *
DR. SCHUBERT (counsel for defendant Oeschey): I am now coming
to the subject of violent criminals and the first case I want to refer
to is the case of Kaminska and Wdowen. The prosecution introduced
Exhibit 201, which included extracts from the official files.[432] The
prosecution also introduced affidavits, Prosecution Exhibits 229, 235,
and 635.[433] Finally there is the witness Gros[434] who was heard on
those cases (_Tr. p. 2828_). Please comment on it.
DEFENDANT OESCHEY: The account given of that case by the
witnesses who were heard on it gives the impression as if Kaminska had
been convicted merely for having thrown that stone, but that was not
the case.
What was of great significance were the events which had preceded that
attack which are not mentioned by the witnesses, but which were the
factors which made that case so grave that led to its being evaluated
as the crime of a violent criminal.
The witness, in giving an account of that case, omitted to mention
that the offense began with an act of blackmail committed by the two
defendants for they approached their employer, whose name was Gundel.
He was an old weak man. They asked Gundel for money to which they
were either not entitled at all or to which their title was extremely
doubtful. And when Gundel asked that they should give him some more
time, they tried to force him to give them the money by attacking
Gundel, that is to say, the defendant Wdowen attacked Gundel and
slapped his face. That explains why Private Wanner appeared on the spot
and intervened. That factor, too, was omitted by the witnesses and that
is why it was not made clear that Wanner came to the aid of Gundel and
in doing so Wanner limited himself to asking the two defendants to
leave Gundel’s room. But the witnesses omitted to mention that the two
defendants now assaulted Wanner who after all had behaved absolutely
correctly, and Kaminska when Wanner had been able to ward off the first
attack took up a hoe and tried to attack Wanner with that hoe, and
Wanner was only able to evade that blow by showing presence of mind and
closing the door which happened to be between him and Kaminska. Shortly
after Kaminska threw a stone--
PRESIDING JUDGE BRAND: Wait a minute. If I remember correctly,
you are merely reviewing now the findings which are contained in the
transcript of the case and which is in evidence. We have examined that.
DEFENDANT OESCHEY: I merely wanted to explain that the whole
of that action did not consist of isolated facts but that it is
necessary to evaluate all those facts together in order to comprehend
the legal evaluation of the offense as a whole.
DR. SCHUBERT: Witness, I now ask you to tell us what was the
nationality of those two defendants.
DEFENDANT OESCHEY: Wdowen’s nationality I am afraid I can’t
remember. The Kaminska woman was a Pole. Anyway, I don’t think Wdowen
was a Pole.
Q. Well, what was he?
A. He was a Ukrainian.
Q. On the basis of what provision did the prosecution file its
indictment?
A. The prosecution filed an indictment on the basis of part I, section
4, Number 1 of the law against Poles.[435]
Q. Against whom?
A. Against both defendants. If I am right--well, I am not quite sure
whether my memory serves me well--(document handed to witness). Against
Kaminska the indictment was based on part I, article 4 of the law
against Poles and with Wdowen it was based on a crime of having aided
in somebody else’s crime, articles 4 to 7 of the law against Poles.
Also she was convicted on the basis of having offended against article
4 of the public enemies law.
Q. You saw that in the official court files?
A. Yes, I saw that from the original files of the Nuernberg Special
Court, SG 256/43.[436]
Q. Both the witnesses Pfaff and Gros today draw back from this
judgment.[437] Gros said that he voted against it. Pfaff wasn’t clear
in what he said about it. My first question to you is this. Did you
in any other case announce a judgment without having had at least one
associate agree with your view, as provided by law?
A. No, I never did that.
Q. Did you force Gros and Pfaff to agree with you in passing the death
sentence on these defendants?
A. In this case they were as free in their decision and in their
opinion as I left them in every other case.
Q. What did the court say of the offense against the woman, Kaminska?
Was the decision in accordance with the indictment?
A. No. The court did not convict Kaminska under article 1, section 4,
No. 1 of the law against Poles and among us judges there was a fairly
long discussion on that point. That is to say, we debated the question
as to whether the offense of Kaminska could be sentenced under the
provision of the law against Poles which I have just mentioned. As
far as I remember the associate judge, Pfaff, was inclined to answer
that question in the affirmative. Gros, as well as myself, however,
had doubts about that. That legal provision assumes that the violent
crime was directed against a member of the armed forces in which case
the death sentence becomes mandatory. But in view of the entire facts
of the case it appeared doubtful whether Kaminska, in committing her
offense, had realized at all that the person she was attacking was
a member of the armed forces. According to the facts, that element
did not play a part. In the view of Gros and myself, therefore, the
elements needed for convicting a defendant under part I, section 4 of
the law against Poles were lacking. The further examination had to
discover whether the offense was to be sentenced under article I of
the decree against violent criminals of 5 December 1939.[438] That
question, too, we debated at great length and that is a point which
I remember. We scrutinized quite a number of decisions made by the
Reich Supreme Court and studied a number of commentaries. As far as I
recollect, neither of the associate judges had any doubts about that
view.
With these Reich Supreme Court decisions the legal questions had been
clarified beyond all doubt.
Q. Witness, is it correct that Kaminska was not convicted under the law
against Poles?
A. Kaminska, as the law against Poles prescribes in paragraphs II and
III, was convicted under the decree of 1939, the decree against violent
criminals, which applied to all violent criminals in Germany, and she
was convicted under that law as concerns the question of her guilt as
such and as concerns the sentence.
Q. The witness Gros testified that she had been convicted for racial
and political reasons. What do you have to say to that?
A. That is altogether untrue. The decision was based solely on the
logical application and interpretation of the law in accordance
with the decisions of the Reich Supreme Court while taking into
consideration the particularly difficult and dangerous conditions
prevailing in the rural districts in wartime. Such points of view as
those of race and biology and whatever else you may call them, as I
pointed out yesterday, played no part whatsoever in any of my decisions
and judgments.
Q. And you will now tell us something about the Wdowen case. The
witnesses Gros and Pfaff evidently tried to minimize that offense. What
do you have to say to that?
A. The facts of the case can be seen from the judgment which is
available to the Tribunal, and I therefore need not to go into any
detail. Apart from the fighting and the aid given by Kaminska, this was
a very violent and altogether unusual attack against the policemen; it
was a kind of attack on the policeman who had arrested the Kaminska
woman, and Wdowen was trying to get the policeman to release his grip
on Kaminska. Gros and Pfaff as witnesses disputed that fact; one can
only refer to the fact that Wdowen himself never disputed his own
intentions and his motives.
Q. What was the legal evaluation of the Wdowen offense?
A. That offense by Wdowen was considered by the court as a crime
under article IV of the decree against public enemies[439] and the
indictment had given the same evaluation. I should like to point out
that assaults of that nature against police officials ever since the
beginning of the war, and that is by all courts who tried such crimes,
had been sentenced under the same provisions, that is to say under
article IV of the decree against public enemies. As a rule, the Wdowen
case is by no means an exception. The need to protect particularly
rural districts and the need which became greatly increased due to the
wartime conditions, and such need for protection was due to the fact
that the police was very short of staff, and, because of all that, an
attack of that kind on the police--who worked under very difficult
conditions--always resulted in a very severe penalty.
Q. Was the law against Poles applied in the Wdowen case?
A. No, it wasn’t. Only article IV of the law against public enemies.
Q. Was the Wdowen case the subject of differences of opinion at the
consultations?
A. As far as I remember, it wasn’t.
Q. Did the prosecution consider both defendants as meriting the death
sentence?
A. The prosecution from the very beginning considered that the death
sentence should be asked for both defendants, and accordingly, it
informed the Reich Ministry of Justice before the indictment was
filed. The Reich Ministry of Justice concurred with the view of the
prosecution and approved it.
DR. SCHUBERT: I am now passing on to the next case of violent
criminals.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ALTSTOETTER[440]
_DIRECT EXAMINATION_
* * * * * * *
DR. ORTH (counsel for defendant Altstoetter): Do you remember
Prosecution Exhibit 204, Document NG-151?[441] That document is
concerned with the events which lead up to the 13th decree concerning
the Reich Citizenship Law.[442]
DEFENDANT ALTSTOETTER: Yes.
Q. In article II of the draft, it was provided that when a Jew died
his property was forfeited to the Reich and that for non-Jewish heirs
and persons who were entitled to alimony, a hardship clause should be
added, is that correct?
A. Yes.
Q. The treatment of hereditary provisions according to the plan for
the distribution of work was to be dealt with by Department VI of the
Ministry of Justice.[443] In connection with the intended contents of
the provisions in article II of the draft, could that not justify a
conclusion that you and your department had something to do with that
decree?
A. No, the order that Jewish property was to be forfeited to the Reich
in case of death of a Jew was not a hereditary ruling. It was a matter
of police confiscation and that concerned only the Ministry of the
Interior and only that Ministry was responsible. That is evident too
from the document itself and that from the final draft, no, not the
final draft, the draft before the final draft, which shows that the
provision of article II, section I, originated with the Ministry of the
Interior.
Q. I am now going to show you the text of the 13th amendment of the
Reich Citizenship Law. Please have a look at article II of the decree.
On the basis of this provision, do you have further indication that
Department VI did not have anything to do with the promulgation of this
decree? A. Yes, the wording of these provisions, already in article I,
because if Department VI, I mean the section that dealt with hereditary
law, had had anything to do with this decree, they would have chosen
the version which existed in the civil code for hereditary rights of
the State [Fiskus][444] which is provided there for special cases. I am
referring to article 1936 in the civil code, which has always existed.
Furthermore, the provision under article II shows that hereditary
rights of Jews and non-Jews, [benefiting from the will] of a deceased
Jew as such were not affected. Otherwise, one could no longer have
spoken of persons entitled to inherit. According to that provision,
or rather in spite of that provision, for example in the case of a
mixed marriage, the Jewish partner of the marriage could be or become
heir to the non-Jewish partner. In the case of hereditary settlements,
provisions would have had to be made concerning the rights of third
persons, that is to say, non-Jewish subsequent heirs. Furthermore,
we would have had regulations concerning the legal validity of
transactions among living people, concerning the part of the estate
not comprised by inheritance regulations. Section II also mentioned
non-Jewish persons entitled to receive support from the deceased,
although generally in the case of death any obligation to look after
the maintenance of third persons comes to an end.
Q. If Department VI had had anything to do with the 13th decree, what
Referent of the Department would have dealt with it?
A. Ministerialdirigent Dr. Hesse, Ministerial Counsellor Rexroth, or
Ministerialdirigent Dr. Stagel would have dealt with it in that case.
Q. Did Department VI have anything to do with the handling or carrying
out the 13th decree?
A. No.
Q. Did you or Department VI at a later time have anything to do with
the handling of Jewish hereditary law?
A. Yes, in 1944 the Minister of the Interior approached the Reich
Ministry of Justice with a request concerning an executory order of
the 13th decree, to incorporate in it provisions, which were to change
or amend article II of the Reich Citizenship Law. The ministry of
the Interior had recognized that article II had certain defects, and
therefore asked us to find a solution concerning the hereditary law.
I objected to this request from the Reich Ministry of the Interior,
although the Minister of Justice was of different opinion.
Q. Do you know how that matter developed further?
A. As for the details of the subsequent development I do not remember
them, but one thing I remember for certain, Hesse, with my consent,
when Thierack the Minister of Justice had declared himself ready to
collaborate in the preparation of this executory order, contacted the
competent Referent of the Ministry of the Interior, and convinced
them that the provision, purely technically, for the Reich Ministry
of Interior, amounted to a basic change of the previous decree, that
is to say the 13th decree. He also told them that we didn’t want to
have anything to do with this matter. The Ministry of the Interior
then withdrew its request, and I was told by Hesse that the matter
of a Jewish hereditary law would now be dropped. In effect, an
executory order in connection with the 13th decree concerning the Reich
Citizenship Law was promulgated on 1 September 1944, and that by the
Ministry of the Interior alone without any participation of the Reich
Ministry of Justice and without incorporating the provisions concerning
article II of the 13th decree, which had originally been requested.
Q. In summing up, Witness, I should like to ask you, is it correct
that Department VI, during your term of office, did not participate in
the making and carrying out of laws concerning confiscation of Jewish
property and that during that time legal provisions about the exclusion
of Jewish hereditary rights were not issued?
A. Yes, that is true.
PRESIDING JUDGE BRAND: May I ask you concerning that. I am
wondering if I have the correct understanding of your testimony. Do you
intend to say that this 13th decree did not change the previous law of
inheritance, the rights of inheritance, but that the only effect was to
provide for police confiscation, is that right?
DEFENDANT ALTSTOETTER: Yes, yes, quite. That is my opinion.
Q. Well, was it your opinion that the provision for police confiscation
was invalid?
A. Invalid? Invalid, no, not invalid.
Q. The courts which had to do with matters of inheritance in general
were courts with which your department had dealt, were they not?
A. Yes, Your Honor.
Q. Well, when a question of inheritance under the general law came
up in the courts in which they were confronted with this 13th decree
concerning police confiscation, what did the courts do?
A. I got to know of only one single case which may be connected with
this problem, and I am thinking of a case of recognition of the right
of subsequent inheritance. The district court of appeals and the
seventh civil senate of the Reich Supreme Court at the time decided
that the right of subsequent inheritance remained legal and that
regardless of the provisions which had been issued in connection with
the Jewish problem, the estate, if a case of subsequent inheritance
occurred, would have to be passed on to the subsequent heir. Other
cases, I do not remember.
Q. Was that the equivalent or did it amount to holding that the decree
for police confiscation was invalid?
A. I am sorry. I did not understand.
Q. The Supreme Court apparently refused to apply the provisions of the
decree for police confiscation, did it not?
A. I can’t say for certain. If I remember rightly the Reich Supreme
Court, concerning the question of the validity of that decree did not
express its opinion at all.
Q. Well, it didn’t enforce the decree, did it?
A. No, the Reich Supreme Court said, the subsequent heir who comes
after the immediate heir is not affected by that decree, and therefore,
his rights remain his rights.
Q. And who was the subsequent heir? Was he a Jew?
A. All I remember is his name. Whether he was a Jew I don’t know, but I
don’t think he was. Probably he was non-Jewish.
Q. Well, what was your opinion as to what a court could do when the
law of inheritance provided that one person should receive the Jewish
estate and that the decree for police confiscation provided that the
property should be confiscated?
A. In practice it was like this. The law of inheritance remained as it
was from the point of view of legal theory; but the property left by
a Jew which was forfeited to the Reich when the Jew died, however, no
longer existed.
Q. It existed. You don’t mean it vanished in the air? You mean it was--
A. No, that is to say, it had now gone to the police or to the finance
office, they had now taken into their hands the property left by the
Jew.
Q. Then I take it in practice the courts did not enforce what you have
stated would be the valid law of inheritance?
A. I assume that such cases did not come before the courts.
Q. Well, didn’t matters of inheritance in general as to the Germans
come before the courts?
A. Yes, yes they did.
DR. ORTH: I think that is all.
* * * * * * *
DR. ORTH: Please explain briefly to the Tribunal what one
understands under German law by “matters of descent.”
DEFENDANT ALTSTOETTER: The fact that from the biological
point of view a certain man has fathered a certain child is under
the German civil code, the decisive criterion for the status and the
legal position of the child, and therefore, also for the rights and
claims of such a child. However, as we know, it is frequently difficult
to establish the true biological descent of a child, and it was
particularly difficult at the time of the promulgation of the civil
code. Pursuant to the achievements of biological science, the German
legislator had established certain legal suppositions concerning the
legal descent. On the basis of those provisions the biological descent
and the legal descent not infrequently appeared to be different.
As science progressed, in particular in the field of biochemistry,
hereditary biology, and anthropology, after the civil code had come
into force, more and more reliable methods of science were discovered
in order to prove or at least exclude biological descent of a child
from a certain father. As a result, litigations between father and
child became more and more frequent concerning the true biological
descent, that is to say, concerning the question as to whether the
legal father was also, biologically speaking, the child’s father.
Under German law, all those cases of litigation are described as
matters of descent. A partial complex is formed by those cases where
Jews and persons of mixed descent, in the majority already adults,
wanted the matter clarified in a court for themselves or their progeny,
that contrary to the legal supposition, biologically and consequently
also legally, they were not--or, at any rate, not to the extent that
had been assumed--the children of a Jew or a person of mixed descent.
* * * * * * *
PRESIDING JUDGE BRAND: Could you tell us in a few words what,
if anything, your Department VI had to do with matters pertaining to
descent cases such as you have described them?
DEFENDANT ALTSTOETTER: Those descent cases played a great part
from the point of view of my department exercising supervision. I shall
revert to that matter quite briefly.
Q. Over whom or over what did you exercise supervision?
A. The Ministry of Justice, because of the treatment to be accorded
to such descent cases constantly received complaints, in particular,
complaints stating that these proceedings never made any progress.
Furthermore, and I shall revert to this, too, we received complaints--
Q. That doesn’t answer my question. I am sorry to interrupt you. Your
department exercised supervision in matters pertaining to descent. Over
whom did you exercise supervision?
A. We had that supervision over the courts and over the public
prosecutors.
* * * * * * *
DR. ORTH: Witness, will you please comment again on Exhibit
453?[445]
DEFENDANT ALTSTOETTER: Here I have to say first, briefly, that
the descent cases which I have just mentioned, especially the right of
the prosecution to raise charges in descent cases, since the so-called
laws concerning Jews were issued, were used as a means for Aryanization
as we called it. In cases, that is to say, where a man who according to
the law was considered to be a Jew was of the opinion that he was not
to be considered a Jew, he himself filed a claim for the establishment
of the fact that he was not a Jew, that is, that he was not a
descendant of a Jew. Or if his right to file that claim or the right
of his father to do so no longer existed because the term to do so had
expired, he went to the public prosecutor to make the public prosecutor
file this claim. The latter was the case when a suit was filed in
order to challenge the legality of a marriage. Now in cases where
these claims were filed in the course of the war, particularly during
the last years of the war, considerable difficulties arose. I only
want to mention two, but there were more of those. One was the lack
of experts in the field of genetics which was caused by the war. The
other reason was the thing that had occurred with the courts in Vienna.
In other courts it did not occur, as far as I know. There in Vienna a
particular difficulty arose owing to the fact that the police, as far
as Jewish witnesses for these descent trials were concerned--in most
cases it was a question of so-called witnesses for the investigation or
witnesses for the purpose of comparison--that the police, as I said,
for reasons of security had removed these witnesses and now refused to
produce them or to release them. That can be seen from the letter of
the police of 3 May 1944, which is in this exhibit. Objections against
the attitude of the police which were raised by the subdepartment
chief, Ministerialrat Rexroth, in the course of a conference with a
Referent, were only successful to the extent that the police consented
in exceptional cases to produce witnesses if the Reich Minister of
Justice expressly demanded that. Moreover, the police referred to the
lack of means of transportation and escort personnel caused by the war.
With matters as they stood, the Reich Ministry of Justice could do
nothing else but to bring them to the attention of the courts in Vienna
through the president of the district court of appeals. For the people
concerned who desired to carry out by that suit, as I have called it,
an Aryanization, the fact that these witnesses were not produced as
a rule did not amount to any disadvantage. The persons concerned on
their part, either if they had instituted the proceedings themselves in
their own interest or if they had requested of the public prosecutor
to institute proceedings, had themselves presented to the public
prosecutor evidence for their assertion that they were not descendants
of a Jew or a person of mixed Jewish descent. And if the court could
not produce the expert opinions of geneticists which officially had to
be produced and for which these witnesses for the purpose of comparison
were needed, then the court could do nothing else but on the basis
of the evidence which the Jews concerned had submitted, to decide,
and that this evidence was in favor of the person filing the claim is
obvious. And to that the remarks in Exhibit 453 refer, that one had to
put up with it if in this manner the intentions to cover up for the
true descent could not be prevented.
Q. Witness--
PRESIDING JUDGE BRAND: Let me ask you this. Concerning these
claimants suspected of being Jews but claiming to be Aryans, how far
back did they have to trace their ancestry to prove that they were
Aryans?
DEFENDANT ALTSTOETTER: They were not compelled to go far back.
It sufficed to prove that either one of the parents was not Jewish,
and if that could not be proved, they also could refer to the fact that
other ancestors of theirs were not Jewish. The question as to whether a
person was a Jew or was not a Jew was laid down in the meaning of the
Nuernberg laws, these laws and the decrees to carry out these laws. But
the suits themselves were not concerned with that, but subsequently the
main thing was whether--
Q. Did they have to prove that their grandparents were not Jewish?
A. Mr. President, we have to distinguish here--
Q. Just tell me yes or no first, and then you may distinguish. Here
is a man who claims he is an Aryan. He wants to prove it. What of his
ancestors must he prove were not Jews? Can you answer?
A. Framed in this way, as far as these suits were concerned, I cannot
answer the question because as far as these suits were concerned that
question was of no importance.
Q. Was he an Aryan if his grandfather was a Jew?
A. He had two grandfathers and two grandmothers.
Q. Yes.
A. And there the distinction was made, but according to the Nuernberg
laws, which were only of interest before the administrative authorities
and not for these trials, the distinction was made whether he was
one-eighth, one-fourth, or one-half Jew, that is to say, a person of
mixed descent of that degree, or whether he was a full Aryan. But I say
that that is a question which for carrying out these descent cases was
of no importance.
Q. Will you tell me then, and do it briefly, because I know you can,
what did the person have to prove in order to establish in a descent
case that he was an Aryan?
A. It was established, Mr. President, that contrary to the legal
assumptions, he was not the descendant of that and that father. Nothing
else.
Q. That is, that he was not the descendant of his purported father.
A. Of the purported father according to the legal assumption.
Q. That is, if the father was a Jew.
A. If the father was a Jew.
Q. Then he had to prove he was a bastard. Is that what you mean?
A. Yes. If it was at all a question of legitimacy. There were such
cases of descent also outside of marriage, illegitimate. These descent
cases were not restricted to Jews. There were not at all any special
regulations for Jews.
* * * * * * *
3. NATIONALS OF THE WESTERN OCCUPIED COUNTRIES--
THE NIGHT AND FOG DECREE
TRANSLATION OF DOCUMENT 671-PS
PROSECUTION EXHIBIT 304
LETTER FROM KEITEL, CHIEF OF ARMED FORCES HIGH COMMAND, TO MINISTRY OF
JUSTICE, 12 DECEMBER 1941, TRANSMITTING HITLER’S NIGHT AND FOG DECREE
AND ITS FIRST IMPLEMENTATION ORDER; INTEROFFICE MEMORANDUM REQUESTING
TRANSMITTAL OF THE LETTER TO DEFENDANT SCHLEGELBERGER
Chief of the Supreme Command of the Armed Forces
14 n 16 WR (I3/4)
No. 165/41 g
(When answering, please refer to above file number, date and
subject.)
Berlin W 35
12 December 1941
Tirpitzufer 72–76
Telephone: Local: 218191
Long distance: 218091
12/Hz
[Stamp] Secret
To the Reich Minister of Justice
Attention: Under Secretary Dr. Freisler
Subject: Prosecution of criminal offenses
against the Reich or the occupying
power in the occupied zones
3 enclosures
With regard to the oral conversation between Under Secretary Dr.
Freisler and the chief of my legal section,[446] I enclose herewith
a decree of the Fuehrer and Supreme Commander of the Wehrmacht of 7
December 1941[447] and an order for its execution of the same day.[448]
I agree with the opinion of the State Secretary that the execution of
the Fuehrer decree necessitates a close cooperation between the Reich
Ministry of Justice and the Supreme Command of the Wehrmacht.
I instructed my officials to assist your agencies in every respect. I
ask you to settle the question regarding the manner of imprisonment in
your provision for the execution of decree.
[Signed] KEITEL
Action taken by II a 118 and 119/42 g
II a 116/42 g
3 enclosures
12
received 26/1
SCH [Schlegelberger]
Ministerialrat Dr. Gramm, State Secretary Dr. Freisler asks to transmit
the enclosed letter to State Secretary Dr. Schlegelberger for his
information
[Signed] VON HACKWITZ
19 January 1942
PARTIAL TRANSLATION OF DOCUMENT 1733-PS
PROSECUTION EXHIBIT 303
SECRET NIGHT AND FOG DECREE OF HITLER, SIGNED BY KEITEL, 7 DECEMBER
1941, CONCERNING MEASURES TO BE TAKEN AGAINST PERSONS OFFERING
RESISTANCE TO GERMAN OCCUPATION
Secret
The Fuehrer and Supreme Commander of the Armed Forces
Directives for the Prosecution of Criminal Acts against the Reich or
the Occupying Power in the Occupied Territories of
7 December 1941
Since the beginning of the Russian campaign, Communist elements and
other anti-German circles have increased their assaults against the
Reich and the occupation force in the occupied territories. The extent
and the danger of these activities necessitate the most severe measures
against the malefactors in order to intimidate them. To begin with,
the following directives should be observed:
I
In case of criminal acts committed by non-German civilians and which
are directed against the Reich or the occupation force, endangering
their safety or striking force, the death penalty is indicated in
principle.
II
Criminal acts contained in paragraph I, will on principle, be tried
in the occupied territories only when it appears probable that
death sentences are going to be passed on the offenders, or, at
least, the main offenders, and if the trial and the execution of the
death sentence can be carried out without delay. In other cases the
offenders, or, at least, the main offenders, are to be taken to Germany.
III
Offenders who are being taken to Germany are subject to court martial
procedure there only if particular military interests should require
this. German and foreign agencies will be told upon inquiries on such
offenders that they were arrested and that the state of the proceeding
does not allow further information.
IV
The commanders in the occupied territories and the judicial
authorities, within their jurisdiction, will be personally held
responsible for the execution of this decree.
V
The Chief of the High Command of the Armed Forces will decide in
which of the occupied territories this decree shall be applied. He
is authorized to furnish explanations, to issue supplements, and
implementation directives. The Reich Minister of Justice will issue
implementation directives within his jurisdiction.
BY ORDER:
The Chief of the High Command of the Armed Forces
[Signed] KEITEL
Distribution:
Foreign Office
Reich Minister and Chief of the Reich Chancellery
Reich Leader SS and Chief of the German Police in the Reich
Ministry of the Interior
Army High Command (Chief, Army Armament and Commander of the
Replacement Army, Army Legal Department) with 7 numbered copies
Navy High Command (Navy Legal Department) with 1 numbered copy
Reich Air Minister and Commander in Chief of the Air Force with
1 numbered copy
President of the Reich Military Court
Commander Armed Forces Southeast with 4 numbered copies
Norway
Netherlands
Ostland
Ukraine
Plenipotentiary for the Armed Forces with the Reich Protector
for Bohemia and Moravia
Armistice Commission Wiesbaden
OKW:
Chief of the Armed Forces Operational Staff with 8 numbered
copies
Division L
Armed Forces Propaganda
Division Foreign Affairs, Foreign Counter Intelligence
Division Foreign Affairs
Counterintelligence III
General Armed Forces Office
TRANSLATION OF DOCUMENT 669-PS
PROSECUTION EXHIBIT 305
KEITEL LETTER OF 12 DECEMBER 1941, TRANSMITTING THE FIRST
IMPLEMENTATION DECREE TO THE NIGHT AND FOG DECREE
[Stamp] SECRET
The Commander in Chief of the Armed Forces
14 n 16 WR (I 3/4) [Stamp] L. 15 Dec. 1941
No. 165/41 g Az. 14g po 10
No. 37787 41
12 December 1941
Subject: Prosecution of criminal acts against the Reich or
against the occupying power in occupied territories
1 enclosure
It is the long considered will of the Fuehrer that in case of attacks
against the Reich or the occupation force in the occupied territories,
other measures than those in present use should be taken. The Fuehrer
is of the following opinion: in connection with such activities
imprisonment, even life imprisonment, is considered as a sign of
weakness. An effective and lasting deterrent can only be achieved by
death sentences or by measures which will keep the relatives of the
perpetrator and the population in suspense concerning the fate of the
perpetrator. This purpose is served by deportation to Germany.
The attached directives for the prosecution of crimes correspond to
this conception of the Fuehrer. They were examined and approved by him.
[Signed] KEITEL
Distribution[449]
[Handwritten notes] Clarify as soon as possible.
1. Are the provisions concerning shooting of hostages, etc., annulled
by that order?
2. Is it clear to the Army High Command, especially to the
Quartermaster General, who has been omitted in the distribution?
[Initial] W [Warlimont] 17 December
Secret
First Decree for the carrying out of the Fuehrer’s and Supreme
Commander’s directives concerning the Prosecution of
Criminal Acts against the Reich or the Occupying
Power in the Occupied Territories
By virtue of chapter V of the directives of 7 December 1941 of the
Fuehrer and Supreme Commander concerning the prosecution of criminal
acts against the Reich or the occupying power in the occupied
territories, I order the following:
I
The conditions of chapter I of the directives will as a rule be
applicable in cases of--
1. Assault with intent to kill.
2. Espionage.
3. Sabotage.
4. Communist activity.
5. Crimes liable to create disorder.
6. Favoring of the enemy by the following means:
a. Smuggling people into a country.
b. The attempt to enlist in an enemy army.
c. Support of members of an enemy army (parachutist, etc.).
7. Illegal possession of arms.
II
(1) The criminal acts described in section I of the directives are
to be tried in the occupied territories only under the following
conditions:
1. It must be probable that a death sentence will be pronounced against
the perpetrators or at least against the principal perpetrator.
2. It must be possible to carry out the trial and the execution of the
death sentence at once (on principle a week after the capture of the
perpetrator).
3. Special political misgivings against the immediate execution of the
death sentence should not exist.
4. Apart from the death sentence for murder or partisan activities no
death sentence against a woman is to be expected.
(2) If a sentence which has been pronounced according to section I is
annulled, the trial can continue in the occupied territory, if the
conditions of section I, No. 1, 3, and 4 still exist.
III
(1) In case of criminal acts mentioned in section I of the directives,
the highest judicial authority in agreement with the counter
intelligence officer examines whether the conditions for a trial in the
occupied territories exist. If he agrees that they are, he orders the
session of the court martial. If he denies it, he submits the documents
to his superior commanding officer (sec. 89, par. 1 of the decree on
criminal procedure during wartime). The latter may reserve the decision
to himself.
(2) The superior commanding officer renders the final decision as to
whether the conditions for a trial in the occupied territories exist.
If he agrees that they do, he orders the highest judicial authority
within his command to deal with it. If he denies it, he gives the order
to the secret field police to take the perpetrator to Germany.
IV
(1) Perpetrators taken to Germany _will be subjected there to court
martial proceedings_ only, if the High Command of the Armed Forces
or the superior commanding officer declare in their decision according
to chapter III that special military reasons require court martial
proceedings. If such a declaration is not made, the order that the
perpetrators be taken to Germany means a transfer according to section
3, paragraph 2, sentence 2 of the decree on criminal procedure during
wartime.
(2) If the superior commanding officer uses his authority according to
paragraph 1, he submits the documents to the High Command of the Armed
Forces through official channels. The perpetrators are to be designated
“prisoners of the armed forces” when being transferred to the secret
field police.
(3) The High Command of the Armed Forces determines the tribunal for
those perpetrators who are subjected to court martial proceedings
according to paragraph 1. _It may waive the competence of the armed
forces tribunals._ Moreover, it can suspend the proceedings for any
time it chooses.
V
The trial in Germany will be held under strictest exclusion of the
public because of the danger for national security. Foreign witnesses
may be questioned during the trial only with the permission of the High
Command of the Armed Forces.
VI
The regulations on the procedure before tribunals of the Armed
Forces included in the decree of the High Command of 13 September
1941 concerning the situation in Norway (Armed Forces Operational
Staff/Department L (IV/Qu) No. 002034/41 top secret) and of 16
September 1941 concerning the Communist revolutionary movements in the
occupied territories (Armed Forces Operational Staff/Abt. L (IV/Qu)
No. 002060/41 top secret) are superseded by the directives and this
executive order.
VII
(1) These directives will become effective 3 weeks after they are
signed. _They are to be applied in all occupied territories with the
exception of Denmark_ until further notice.
(2) The orders issued for the newly Occupied Eastern Territories are
not affected by these directives.
(3) Chapter I of the directives is applicable for pending trials. The
highest judicial authority and the superior commanding officer can
accordingly apply chapter III of this executive order in case of such
trials. If the superior commanding officer orders that a perpetrator
be taken to Germany, chapter IV will be applicable. In case of
perpetrators who were taken to Germany before these directives became
effective, the High Command of the Armed Forces can proceed according
to chapter IV, paragraph 3.
The Commander in Chief of the Armed Forces
[Signed] KEITEL
Distribution:
Foreign Office
Reich Minister and Chief of the Reich Chancellery
Reich Leader SS and Chief of the German Police in the Reich
Ministry of the Interior
High Command Army (Chief Army Armament and Commander of the
Replacement Army, Army Legal Department) with 7 numbered copies
High Command Navy (Navy Legal Department) with 1 numbered copy
Reich Minister for Air and Commander in Chief of the Air Force
with 1 numbered copy
President of the Reich Military Court
Armed Forces Commander Southeast with 1 numbered copy
Norway
Netherlands
Ostland
Ukraine
Plenipotentiary for the Armed Forces with the Reich Protector in
Bohemia and Moravia
Armistice Commission Wiesbaden
High Command Armed Forces:
Chief Armed Forces Operations Staff with 8 numbered
copies
Department L
Armed Forces Propaganda
Office Foreign Counterintelligence
Department Foreign Countries
Branch III
General Armed Forces Office
PARTIAL TRANSLATION OF DOCUMENT NG-077[450]
PROSECUTION EXHIBIT 306
LETTER FROM UNDER SECRETARY FREISLER TO GENERAL LEHMANN, 16 DECEMBER
1941, TRANSMITTING A DRAFT OF A PROPOSED IMPLEMENTATION ORDER TO THE
NIGHT AND FOG DECREE, TOGETHER WITH AN INTEROFFICE NOTE OF 25 DECEMBER
1941
Priv. II
v. Ha/La
16 December 1941
[Handwritten] Officially dispatched, 16 December
Secret [Handwritten] IIa 117/42 g
Sheet 13
Secret!
To Ministerialdirektor Dr. Lehmann
Chief of the Armed Forces Legal Division with the High
Command of the Armed Forces
Berlin W
Bendlerstr. 14
Dear Ministerialdirektor,
Dear Party Member Lehmann,
Being in the possession of your letter of the 12th of this month, I
send you attached hereto the draft of an executive order. Taking your
consent for granted, the Reich Minister of Justice intends to publish
it.[451] I should be obliged to you, if we could discuss our views
in the beginning of next week. (Prior to that time I shall be on an
official trip.) In the meantime, Ministerialdirektor Schaefer is also
ready to discuss this matter with you. Ministerialdirektor Schaefer
will prepare the necessary administrative regulations on the basis of
the provisions issued or proposed.
Heil Hitler!
[Initial] FR [Freisler]
[Illegible stamp]
[Italicized text crossed out in original document]
_Before dispatch
submitted to State
Secretary Dr. Schlegelberger
with the request to take note._
_Berlin_, 16 December
[Signed] FREISLER
22. 12. to II a 116/42 g
[Enclosure]
[Executory decree to Hitler’s Night and Fog order
of 7 December 1941]
Regarding the execution of the afore-mentioned decree, I decree:
1. I reserve to myself the decision as to which court is materially and
locally competent to deal with a case.
2. The public prosecutor shall prefer charges after earnest reflection
according to his duty.
3. The order, application, and termination of the arrest pending trial
are at the discretion of the public prosecutor.
4. The trial will be conducted behind closed doors.
5. The admittance of evidence of foreign origin depends on the
preceding consent of the public prosecutor.
6. Prior to the verdict the public prosecutor may revoke the indictment
or move for a suspension of the proceedings.
The motion of the public prosecutor to suspend proceedings must be
granted by the court.
The public prosecutor must be given an opportunity to state his
opinion, should the court decide on making an exception to his motion
in re.
[Initial] FR [Freisler] 16 December
[Initial] SCH [Schaefer] 16 December
[Entire document handwritten]
_Secret_
1. Note. I had an oral discussion in this matter on 19 December, and on
24 December I had a discussion by telephone with Ministerialdirektor
Lehmann. He told me, that the High Command of the Armed Forces had,
in principle, agreed to the draft submitted to it with regard to the
executive order but that, nevertheless, it would give a reply in
writing. The question has not been decided whether the High Command of
the Armed Forces within its jurisdiction, will give the right to handle
the case to the higher military court or the military courts. There is
also the necessity of settling some other questions which presumably
will be attempted in a conference of delegates in the beginning of
January. It would be advisable for the Reich Ministry of Justice to
await further information from the High Command of the Armed Forces.
Transfers of the cases to courts should not be expected before the
second half of January.
Experts in charge of this matter with the High Command of the Armed
Forces are--
Senior Military Court Counsellor Huelle,
Military Court Counsellor Schoelz,
Ministerialrat Sack.
Furthermore with the counterintelligence office of Colonel Bentivegni,
Chief of Counterintelligence III.
Ministerialrat Herzlieb,
Senior Military Court Counsellor von Gramatzki.
2. To Ministerialrat Grau, with the request to take note.
[Initial] GR [Grau]
25 December
I beg you to take care of the file and handle it in the future.
[Signed] SCHAEFER
24 December
TRANSLATION OF DOCUMENT NG-232
PROSECUTION EXHIBIT 308
CIRCULAR DECREE OF THE REICH MINISTRY OF JUSTICE, SIGNED BY UNDER
SECRETARY FREISLER, 6 FEBRUARY 1942, ASSIGNING PARTICULAR SPECIAL
COURTS TO HANDLE NIGHT AND FOG CASES
The Reich Minister of Justice
II a 119/42 secret
Berlin W 8, 6 February 1942
Wilhelmstrasse 65
Phone: 110044
Long distance: 11 65 16
[Stamp] Secret
Circular decree on the implementation of the executive decree of
6 February 1942, concerning the directives issued by the Fuehrer
and Supreme Commander of the Armed Forces for the prosecution of
criminal acts against the Reich or the occupying power in the occupied
territories.
For the further execution of the directives mentioned before, I decree:
1
Competent for the handling of the cases transferred to ordinary courts,
including their eventual retrial, are, as far as they originate from
the occupied French territories, the Special Court and the chief public
prosecutor in Cologne; as far as they originate from the occupied
Belgian and Dutch territories, the Special Court and the chief public
prosecutor in Dortmund; as far as they originate from the occupied
Norwegian territories, the Special Court and the chief prosecutor in
Kiel; for the rest, the Special Court and the attorney general at
the Berlin district court. In special cases I reserve to myself the
decision of competence for each individual case.
2
The Chief Public Prosecutor will inform me of the indictment, the
intended plea and the sentence as well as of his intention to refrain
from any accusation in a specific case.
3
The choice of a defense counsel will require the agreement of the
presiding judge who makes his decision only with the consent of the
prosecutor. The agreement may be withdrawn.
4
Warrants of arrest will be withdrawn only with my consent. If such is
intended, the chief public prosecutor will report to me beforehand. He
will furthermore ask for my decision before using foreign evidence or
before agreeing to its being used by the Tribunal.
5
Inquiries concerning the accused person or the pending trial from other
sources than those armed forces and police agencies dealing with the
case will be answered by merely stating that * * * is arrested, and the
state of the trial does not allow further information.
Acting:
[Typed] Signed: DR. FREISLER
Certified: [Signed] KERSTEN
Chief Secretary of the Ministerial Chancellery
Circular stamp of the Reich Ministry of Justice
TRANSLATION OF DOCUMENT 2521-PS
PROSECUTION EXHIBIT 310
LETTER FROM THE SS ECONOMIC AND ADMINISTRATIVE MAIN OFFICE TO
CONCENTRATION CAMP COMMANDERS, 18 AUGUST 1942, TRANSMITTING
INSTRUCTIONS FOR TREATMENT OF NIGHT AND FOG PRISONERS
Copy Oranienburg, 18 August 1942
SS Economic and Administrative Main Office[452]
Chief of Division D--Concentration Camps
D I/Az.: 14 c 2/Ot./U.
Secret Diary No. 551/42
Subject: Prisoners who come under the Keitel decree
Reference: Reich Security Main Office--IV C 2 Gen. No. 103/42 of
14 August 42 and attached extract of 4 August 1942
Enclosure: 1
To the Camp Commandants of the Concentration Camps Dachau,
Sachsenhausen, Buchenwald, Mauthausen, Flossenbuerg, Neuengamme,
Auschwitz, Gross-Rosen, Natzweiler, Niederhagen, Stutthof,
Arbeitsdorf, Ravensbrueck, and Prisoner of War Camp at Lublin
I am sending you, for information and execution, enclosed extract
from the Nacht und Nebel [Night and Fog] Decree for official use in
concentration camps, in connection with prisoners who come under the
“Keitel Decree.”
In the event of the transfer of such prisoners, it is to be pointed
out that the prisoners come under the “Keitel Decree” or the Nacht und
Nebel Decree.
[Typed] GLUECKS
SS Brigadier General and Brigadier General of the Waffen SS
Certified true copy
Natzweiler, 24 August 1942
[Signed] MELZER
SS-Corporal
Seal
To department III with the request to inform the postal department.
Copy
IV D 4--103/42 g Berlin, 4 August 1942
Extract from the Nacht und Nebel Decree for official use in
concentration camps
By decree of the Commander in Chief of the Armed Forces dated 12
December 1941 regarding the prosecution of punishable offenses against
the Reich or the occupation forces in the occupied areas (called in
short Nacht und Nebel Decree), it has been directed by virtue of a
Fuehrer order, that persons who, in the occupied territories, take
action against the Reich or the occupation forces, shall be removed
to the Reich for deterrent purposes. Here they are to be transferred
to a Special Court. Should this not be possible for any reason, these
persons will be placed in a concentration camp under sentence of
protective custody. Protective custody as a rule lasts until the end of
the war.
As it is the purpose of this decree to leave the relatives, friends,
and acquaintances in uncertainty regarding the fate of the prisoners;
they are not allowed to have any means of communication with the
outside world. They may therefore neither write, nor receive letters,
parcels, or visits. Nor will any kind of information regarding the
prisoners be given to any agency outside.
In cases of death, the relatives are not to be informed until further
notice. There has not yet been a final ruling on this question.
These regulations apply to all prisoners regarding whom it is stated in
the detention particulars or in the detention certificates of the Reich
Security Main Office that they come under the Nacht und Nebel Decree.
Furthermore, all prisoners come under it who are described as “Porto”
or “Continent” prisoners.
If it should occur that prisoners who come under the Nacht und Nebel
Decree, have, through an error, had the opportunity of informing their
relatives, further exchange of correspondence with their relatives
should, for tactical reason, be granted them within the framework of
the general regulations regarding correspondence for persons under
protective custody.
[Typed] Signed: DR. HOFFMANN
Certified true copy.
Natzweiler, 24 August 1942
[Signed] MELZER
[Seal]
SS Corporal
TRANSLATION OF DOCUMENT NG-228
PROSECUTION EXHIBIT 312
MEMORANDUMS OF DEFENDANT VON AMMON TO DEFENDANT ROTHENBERGER, 9 AND 26
SEPTEMBER 1942, CONCERNING PENDING NIGHT AND FOG CASES AND THE HANDLING
OF THESE PRISONERS
1. Note. Criminal proceedings according to the directives of the
Fuehrer for the prosecution of criminal acts against the Reich or the
occupying power in the occupied territories of 7 December 1941[453]
(so-called Nacht und Nebel cases) pending on 1 September 1943 are--
_a._ With the Chief Public Prosecutor in _Kiel_ (from
the occupied Norwegian territories) _9_ cases with a total of
_262_ accused.
_b._ With the Chief Public Prosecutor in _Essen_ (from the
occupied Belgian and northern French territories) _180_ cases with
a total of _863_ accused.
_c._ With the Chief Public Prosecutor in _Cologne_ (from the
occupied French territories--with the exception of northern France)
_177_ cases with a total of _331_ accused.
Since 31 August 1942, trials have been held before the Special Court in
Essen. On 31 August 1942 the first death sentence (against Kratz) was
passed.
2. To be submitted to:
Ministerial Director Dr. Crohne,
Ministerial Dirigent Dr. Mettgenberg,
Oberregierungsrat Mielke
separately to each one--with the request to take note
[Initial] R. [ROTHENBERGER]
Berlin, 9 September 1942
[Signed] VON AMMON
[Handwritten notes]
To State Secretary Dr. Rothenberger
To the Reich Minister of Justice
With the request to take note.
Has been submitted.
[Signed] DR. CROHNE 10 September
[Signed] EBERSBERG
[Initial] E
Notes for State Secretary Dr. Rothenberger
On 24 September a report was submitted to the Reich minister on the
legal basis (Fuehrer decree for the prosecution of criminal acts
against the Reich or the occupying power in the occupied territories
of 7 December 1941 and orders for execution) and on the present stage
of the so-called Nacht und Nebel proceedings.
On 1 September 1942 pending were--
1. With the Chief Public Prosecutor in Kiel (from the occupied
Norwegian territories) 9 cases with a total of 262 accused.
2. With the Chief Public Prosecutor in Essen (from the occupied
territories of Belgium and northern France) 180 cases with a total of
863 accused.
3. With the Chief Public Prosecutor in Cologne (from the occupied
French territories--with the exception of northern France) 177 cases
with a total of 331 accused.
The Reich Minister has ordered the following changes to be made in the
present procedure:
1. The Special Courts in Kiel, Essen, Cologne, and Berlin with
exclusive competence hitherto, are to some extent to be replaced by the
People’s Court.
2. The present procedure, according to which the accused are kept in
custody indefinitely by the judiciary authorities when an indictment
was either impossible or not answering the purpose, is to be abolished.
Furthermore, the Reich Minister wishes the question of the competence
for pardons settled in such a way that in cases which have been handed
over to the common court authorities, these (not the authorities of the
armed forces) shall make the decision for pardon.
To give consideration to these questions, a departmental meeting
with the High Command of the Armed Forces Legal Division and
Counterintelligence is to be held on 2 October 1942.
Berlin, 26 September 1942
[Typed] signed DR. VON AMMON
[Handwritten] for further action
[Initial] A [Ammon]
2 October
PARTIAL TRANSLATION OF DOCUMENT NG-255
PROSECUTION EXHIBIT 314
LETTER FROM MINISTRY OF JUSTICE, INITIALED BY DEFENDANTS METTGENBERG
AND VON AMMON, TO VARIOUS JUDGES AND PUBLIC PROSECUTORS, 21 DECEMBER
1942, CONCERNING OBJECTIONS TO ELECTIVE DEFENSE COUNSEL IN NIGHT AND
FOG TRIALS
The Reich Minister of Justice Berlin, 21 December 1942
IVa 2069.42 g
[stamp]
mailed 9 January 1943
[Handwritten] Ru.
[Stamp] Secret
To--
_a._ The President of the People’s Court
_b._ The Chief Public Prosecutor at the People’s Court
_c._ The President of the Military Court
_d._ The Presidents of the Courts of Appeal in Hamm, in
Westphalia, Kiel, and Cologne
_e._ The Attorney General at the Military Court
_f._ The Attorneys General in Hamm, in Westphalia, Kiel,
and Cologne
[Stamp]
To the Chancellery
5 January 1943
made out:
Reply: 6 January 1943
Le/Ru.
Subject: Prosecution of criminal acts against the Reich or the
occupying power in the occupied territories
[Stamp] [Stamp]
To the Chancellery Armed Forces Legal Department
22 December 1942 24 December 1942
made out: Reply: 1211/42 Secret
_Before mailing_
To the High Command of the Armed Forces
Armed Forces Legal Department
for information.
Send copy there.
Several attorneys general have raised the question of whether elective
defense counsel are to be admitted in the procedures transferred to
the general courts according to the directives of the Fuehrer, dated 7
December 1941, dealing with the prosecution of criminal acts against
the Reich or the occupying power in the occupied territories. I have
contacted the High Command of the Armed Forces in this respect. We
are both of the opinion that in view of the regulations in force for
keeping secret the procedures in question, there are basic objections
to the admission of elective defense counsel. The interests of the
defendants can be taken care of by giving them defense counsel
according to paragraph 32 of the competence regulation.
BY ORDER
[Department] III [Department] IV
21 December [Initial] M [Mettgenberg] 21/12
[Initials illegible] [Initial] A [von Ammon] 17/12
PARTIAL TRANSLATION OF DOCUMENT NG-253
PROSECUTION EXHIBIT 317
EXTRACTS FROM OFFICIAL CORRESPONDENCE ARISING OUT OF THE QUESTION
OF PROVIDING DEFENSE COUNSEL IN NIGHT AND FOG TRIALS, 4 JANUARY--19
FEBRUARY 1943
[Letter from the President of the Essen Special Court to the President
of the Essen District Court, 4 January 1943]
The President of the Special Court
Essen, 4 January 1943
_Secret_
To the President of the District Court in Essen
Concerning--Prosecution of criminal acts against the Reich or
the occupying power in the occupied territories.
The German Penal Code applies to the prosecution of criminal acts
against the Reich or the occupying power in occupied territories. This
does not exclude the application of article IV, paragraph 32 of the
competence decree of 21 February 1940 concerning necessary defense,
included in the Reich Minister of Justice’s executive decree of 6
February 1942.[454] Foreign defendants must therefore have counsel if
there is a possibility of the death sentence (or life imprisonment)
being imposed. That is frequently the case in these trials. An
increasing number of more copious cases with several defendants are
now coming up. Very frequently the only evidence against defendants
pleading not guilty consists of statements of codefendants, so that
in view of the possibility of conflicting interests, it is only
rarely possible to appoint _one counsel_ for _a number_ of
defendants. Recently, seven counsel had to be appointed for one trial
lasting several days. At that time it was most difficult to find
enough counsel in a position to take over the defense. The course
of proceedings was repeatedly interrupted owing to the inability of
counsel to appear. In a few days another case with about 30 defendants
will come up, for which a number of counsel will presumably have to be
appointed, too. A number of similar trials may be expected shortly.
Such a strain for trials lasting all day for several days upon the few
lawyers, who are overworked due to their representing their drafted
colleagues, is in my opinion untenable under present circumstances.
The resultant drain upon the State treasury is considerable. When the
second court for these special cases which will soon be needed is
set up, it will be next to impossible to get the requisite number of
counsel. The interests of foreign defendants can hardly be considered
sufficiently important to justify continuous demands of this kind on
staff and public funds.
I therefore suggest that the Reich Minister of Justice should lay down
the following by virtue of the powers granted in No. V of the Fuehrer’s
directives of 7 December 1941:
Article IV, paragraph 32 of the competence decree of 21 February 1940
is not applicable. The president of the court will appoint a counsel
for the defendant if the latter is unable to defend himself or if for
any other special reasons it seems desirable that the defendant be
represented.
[Signed] GOEBEL[455]
District Court Director [Landgerichtsdirektor]
[Memorandum, 18 January 1943, from Ministerial Director Grau to
defendant von Ammon asking for comments on the proposal of the
President of the Special Court in Essen.]
_Secret_
In reference: III a 184/43g
To Oberlandesgerichtsrat Dr. von Ammon
Account of proceedings enclosed with request for comments. In case a
regulation of the nature suggested by the Essen Special Court should
be considered necessary, a legal decision along the lines of the draft
could be made. The formulation of this communication intends to leave
untouched in principle the necessity for defense in the cases concerned
and only to permit individual exceptions of the compulsory regulation
contained in paragraph 32 of the competence decree (ZustVO).
I consider it doubtful whether the principle of the necessity of having
a defense should be abandoned also in cases where the death sentence
may be expected. Here the existing regulations should be waived only in
cases of the utmost urgency.
Berlin, 18 January 1943
[Signed] GRAU
[Answer, 1 February 1943, from the Reich Ministry of Justice, initialed
by defendants Mettgenberg and von Ammon.]
To Ministerialrat Grau
Department IV suggests that section 2 of decree No. 7 of 7 December
1941 be given roughly the following form:
“In trials in which according to the regulations a defense
counsel has to be appointed for the defendant, the regulation
may be ignored if the president of the court is convinced that
the character of the defendant or the nature of the charge make
the assistance of a defense counsel superfluous.”
However, it might be expedient to obtain the comments of the President
of the People’s Court, and of the chief Reich prosecutor at the
People’s Court, the presidents of the courts of appeal at Kiel and
Cologne and the attorneys general in Hamm, Cologne, and Kiel.
Berlin, 1 February 1943
[Initials] V [Vollmer]
M [Mettgenberg] 1 February
A [von Ammon] 30 January
[Letter, 9 February 1943, from the Reich Ministry of Justice, initialed
by defendants Mettgenberg and von Ammon.]
The Reich Minister of Justice Berlin, 9 February, 1943
III a 184/43 g
_Secret_
1. To
_a._ The President of the People’s Court[456]
_b._ The Chief Public Prosecutor at the People’s Court[456]
_c._ The Oberlandesgerichtspraesidenten in Kiel and Cologne
[Initial] TH [Thierack]
_d._ Chief Public Prosecutors in Hamm, Kiel, and Cologne
[Stamp] To files 9 February 1943
Subject: Crimes against the Reich or the occupying forces in
occupied territory
The president of the Essen Special Court reports that in trials for the
above-mentioned offenses, where a defense is necessary, because of the
sentence which may be expected, it is often difficult to obtain counsel
for the defense when [defendants who have confessed in cases where
there is a collision of interest between the defendants][457] a defense
counsel always has to be obtained. The requisite number of lawyers
is not always obtainable, the course of the main proceedings is also
frequently hampered by the inability of individual lawyers to appear.
I therefore propose to insert in No. 7 of the decree for the carrying
out of the directives laid down by the Fuehrer and Supreme Commander of
the Armed Forces of 7 December 1941 the following regulation, which is
to be paragraph 2:
“In trials before the Sondergericht [Special Court] in which
according to the regulations defense counsel has to be provided
for the defendant, the regulation may be ignored when the
president of the court can conscientiously state that the
character of the accused and the nature of the charge make the
presence of a defense counsel superfluous.”
Please comment as soon as possible.
BY ORDER:
[Department] IV [Department] III
[Initial Illegible]
[Initials] V [Vollmer] 4 February
M [Mettgenberg] 4 February
A [Ammon] 3 February
C [Crohne] 3 February
2. 3 weeks later.
3 March
TRANSLATION OF DOCUMENT NG-269
PROSECUTION EXHIBIT 319
SECRET INSTRUCTIONS OF REICH MINISTRY OF JUSTICE TO PROSECUTORS AND
JUDGES, INITIALED BY DEFENDANTS ALTSTOETTER, METTGENBERG, AND VON
AMMON, 6 MARCH 1943, CONCERNING MEASURES NECESSARY TO MAINTAIN SECRECY
OF NIGHT AND FOG PROCEDURES
Draft
Berlin, 6 March 1943
The Reich Minister of Justice
IV a 398/43 secret
[Stamp] Secret
Secret
1. To:
_a._ The Chief Reich Prosecutor at the People’s Court
_b._ The Attorneys General in Celle, Duesseldorf,
Frankfurt/Main, Hamburg, Hamm, Kiel, and Cologne
_c._ The Attorney General at the Berlin Court of Appeal
Subject: Criminal procedures on account of criminal acts
committed against the Reich or the occupying power in the
occupied territories
Enclosures: Extra copies for the Chief Public Prosecutors in
Essen, Kiel, and Cologne and for the Attorney General at the
Berlin District Court
For the attention of:
_a._ The President of the People’s Court
_b._ The Presidents of the District Courts of Appeal in
Hamm, Kiel, and Cologne
_c._ The President of the Berlin Court of Appeal
Enclosures: Extra copies for the Presidents of the District
Courts in Hamm, Kiel, Cologne, and Berlin
[Stamp] Chancellery of Justice
6 March 1943
With regard to criminal procedures on account of criminal acts against
the Reich or against the occupying forces in the occupied territories
(so-called Night and Fog cases) I request the observance of the
following directives in order not to endanger the necessary top secrecy
of the procedure, _particularly, regarding the execution of death
sentences and other cases of death among prisoners_. [Italicized
text crossed out in the original document.]
1. The cards used for investigations for the Reich crime statistics
need not be filled in. Likewise, notification of the penal records
office will be discontinued until further notice. However, sentences
will have to be registered in lists or on a card index in order to make
possible an entry into the penal records in due course.
2. In cases of death, especially in cases of execution of NN prisoners,
as well as in cases of female NN prisoners giving birth to a child,
the register must be notified as prescribed by law. However, the
following remark has to be added: “By order of the Reich Minister of
the Interior, the entry into the death (birth) registry must bear an
endorsement, saying that examination of the papers, furnishing of
information and of certified copies of death (birth) certificates is
only admissible with the consent of the Reich Minister of Justice.”
3. In case an NN prisoner sentenced to death desires to draw up a
public will, proceedings must follow No. 30, paragraph 2 of my circular
ordinance of 19 February 1939, article 417-III a, 318.39. The persons
who assist the drawing up of the will are, if necessary, to be sworn to
secrecy. The will has to be taken into official custody according to
article 2 of the Probate Law. The deposition receipt has to be kept by
the prosecution until further notice.
4. Farewell letters by NN prisoners as well as other letters must not
be mailed. They have to be forwarded to the prosecution who will keep
them until further notice.
5. If an NN prisoner who has been sentenced to death and informed of
the forthcoming execution of the death sentence desires spiritual
assistance by the prison padre, this will be granted. If necessary, the
padre must be sworn to secrecy.
6. The relatives will not be informed of the death and especially of
the execution of an NN prisoner. The press will not be informed of
the execution of a death sentence, nor must the execution of a death
sentence be publicly announced by posters.
7. The bodies of executed NN prisoners or prisoners who died from other
causes have to be turned over to the State Police for burial. Reference
must be made to the existing regulations on secrecy. It must be pointed
out especially that the graves of NN prisoners must not be marked with
the names of the deceased.
The bodies must not be used for teaching or research purposes.
8. Legacies of NN prisoners who have been executed or died from other
causes must be kept at the prison where the sentence was served.
BY ORDER:
[Initials] SCH [Schaefer] 5 March
MX [Marx] 3 March
A [Altstoetter] 3 March
M [Mettgenberg] 25 February
v. A. [von Ammon] 27 February
[Initials] W [Westphal] 27 February
V [Vogel] 26 February
R [Rexroth] 27 February
H [Hecker] 26 February
EI [Eichler] 1 March
2. Copy of (1) to District Court Judge Dr. von Ammon and to
Chief Public Prosecutor Dr. Metten, also to Dr. Eichler.
3. To be submitted again after being mailed.
[Stamp] Mailed 8 March 1943
[Handwritten] resubmitted [Initials illegible] March 9
[Handwritten notes illegible]
Distribution
The circular ordinance of 6 March 1943-IV a 398/43--has been mailed
today to the following addresses:
786 b 1. Chief Reich Prosecutor at the People’s Court, Berlin.
7 2. Attorney General, Celle.
8 3. Attorney General, Duesseldorf.
9 4. Attorney General, Frankfurt (Main).
90 5. Attorney General, Hamburg.
1 6. Attorney General, Hamm.
2 7. Attorney General, Kiel.
3 8. Attorney General, Cologne.
4 9. Attorney General at the Court of Appeal, Berlin.
5 10. President of the People’s Court, Berlin.
6 11. President of the Supreme Court of Appeal, Hamm.
7 12. President of the Supreme Court of Appeal, Kiel.
8 13. President of the Supreme Court of Appeal, Cologne.
799 b 14. President of the District Court, Berlin.
[Handwritten] 14 Weber
[Stamp] Berlin, W 8, 8 March 1943, 6–7 afternoon
TRANSLATION OF DOCUMENT NG-281
PROSECUTION EXHIBIT 323
FILE NOTE OF DEFENDANT VON AMMON, 7 OCTOBER 1943, CONCERNING DEFENDANT
LAUTZ’ QUESTION AS TO GIVING DEFENDANTS TRANSLATIONS OF THE INDICTMENTS
AGAINST THEM IN NIGHT AND FOG CASES
1. _Note_--Chief Reich Prosecutor Lautz asked me whether there
were any objections to translations of indictments in NN proceedings
being handed over to the defendants. It has turned out to be
inconvenient that the defendants learned the details of the charges
raised against them only during the trial. Also the interpretation by
the defense counsel is not always sufficient, since their French mostly
is not good enough and since the defendants were brought to the place
of the trial only shortly before it was held.
The procedure adopted for Czech defendants, viz, having the indictment
translated to them orally by a Czech-speaking sergeant, is not
possible here since French-speaking sergeants are not available.
After having given a report to Ministerialdirektor of Department IV and
to the Minister, I informed Chief Reich Prosecutor Lautz on 6 October
1943 that there were no objections whatever to the intended procedure.
2. Ad procedures of office a 3.--“Prosecution of criminal acts against
the Reich or the occupying power in the occupied territories.”
Berlin, 7 October 1943
IVa 2369/43 g [Initial] A [von Ammon]
PARTIAL TRANSLATION OF DOCUMENT NG-205
PROSECUTION EXHIBIT 328
SECRET DIRECTIVE OF THE REICH MINISTRY OF JUSTICE, 21 JANUARY 1944,
ORDERING TRANSFER TO GESTAPO OF NIGHT AND FOG PRISONERS WHO WERE
ACQUITTED, AGAINST WHOM PROCEEDINGS WERE QUASHED, OR WHO HAD SERVED
THEIR SENTENCES
The Reich Minister of Justice
IV a 2083.43 g Berlin, 21 January 1944
Secret
[Handwritten] Immediately!
[Initial] TH [Thierack]
(Stamp)
dispatched: 25 January 1944
1. To the
_a._ President of the People’s Court
_b._ Chief Reich Prosecutor at the People’s Court
_c._ Presidents of the Courts of Appeal in Breslau, Hamm,
and Kiel
_d._ President of the Military Court
_e._ Attorneys General in Breslau, Hamm, and Kiel
_f._ Attorney General at the Military Court
Subject: Prosecution of criminal acts committed against the
Reich or the occupying power in the occupied territories
Enclosures: Extra copies for the Presidents of the District
Courts in Breslau, Essen, Kiel, and Berlin; Chief Public
Prosecutors in Breslau, Essen, and Kiel; and for the
Attorney General at the Berlin District Court
[Stamp] submitted on 25 January 1944
For information:
_a._ The other Attorneys General
_b._ Supreme Command of the Armed Forces
Referring to the letter of 10 November 1943
14 n 16.18 WR (I/3)--129/43 g
_c._ Reich Leader SS and Chief of the German Police at the
Reich Ministry of the Interior
--Chief of the Security Police and of the SD--
Referring to the letter of 17 December 1943
IV D 4-103/42 g
As supplement to my circular decree dated 28 October 1942--IV a 1668/42
g--I order the following concerning the treatment of NN prisoners who
were acquitted by a general court, against whom such proceedings were
quashed, or who served their sentence imposed on them by a general
court:
1. If during the trial of an NN proceeding it appears that the
defendant is innocent or that his guilt has not been sufficiently
established, he will be handed over to the Secret State Police; the
public prosecutor will inform the Secret State Police of his opinion
whether the defendant can be released and return to the occupied
territories, or whether he will continue to remain under detention. The
Secret State Police will decide what further actions are to be taken.
2. Defendants who were acquitted, or against whom proceedings were
quashed during the trial, or who served a sentence during the war,
will be handed over to the Secret State Police for detention for the
duration of the war. The Reich Leader SS and Chief of the German Police
at the Reich Ministry of the Interior has ordered that these defendants
will always be given the mildest grade of protective custody, i.e.,
grade I.
3. Deviations from the regulations as contained in Nos. 1 and 2, will
be made only after my approval has been given.
BY ORDER: As deputy
[Initial] V [Vollmer] Jan. 18
2. Copy of 1 will be sent to the--
_a._ President of the Senate Hecker
_b._ Ministerialrat Dr. von Ammon
_c._ Amtsrat Thienel
_d._ s 1
3. To be resubmitted after dispatch--
[Initial] A [von Ammon] Jan. 18
Report of 13 December 1943
[Handwritten] submitted with IV a 27/44 g
The decree of 21 January 1944--IV a 2803/43--has been mailed to the
following addresses today:
1. President of the People’s Court in Berlin.
2. Chief Reich Prosecutor at the People’s Court in Berlin.
3. President of the Court of Appeal, Breslau.
4. President of the Court of Appeal, Hamm/Westphalia.
5. President of the Court of Appeal, Kiel.
6. President of the Court of Appeal [Kammergericht], Berlin.
7. Chief Public Prosecutor, Breslau.
8. Chief Public Prosecutor, Hamm/Westphalia.
9. Chief Public Prosecutor, Kiel.
10. Chief Public Prosecutor at the Court of Appeal, Berlin.
11. Chief Public Prosecutor, Bamberg.
12. Chief Public Prosecutor, Braunschweig.
13. Chief Public Prosecutor, Celle.
14. Chief Public Prosecutor, Danzig.
15. Chief Public Prosecutor, Darmstadt.
16. Chief Public Prosecutor, Dresden.
17. Chief Public Prosecutor, Duesseldorf.
18. Chief Public Prosecutor, Frankfurt/Main.
19. Chief Public Prosecutor, Graz.
20. Chief Public Prosecutor, Hamburg.
21. Chief Public Prosecutor, Innsbruck.
22. Chief Public Prosecutor, Jena.
23. Chief Public Prosecutor, Karlsruhe.
24. Chief Public Prosecutor, Kassel.
25. Chief Public Prosecutor, Katowice.
26. Chief Public Prosecutor, Cologne/Rhine.
27. Chief Public Prosecutor, Koenigsberg.
28. Chief Public Prosecutor, Leitmeritz.
29. Chief Public Prosecutor, Linz/Donau.
30. Chief Public Prosecutor, Munich.
31. Chief Public Prosecutor, Naumburg/Saale.
32. Chief Public Prosecutor, Nuremberg.
33. Chief Public Prosecutor, Oldenburg.
34. Chief Public Prosecutor, Poznan.
35. Chief Public Prosecutor, Rostock, at present Schwerin/Meckl.
36. Chief Public Prosecutor, Stettin.
37. Chief Public Prosecutor, Stuttgart.
38. Chief Public Prosecutor, Vienna.
39. Chief Public Prosecutor, Zweibruecken.
40. Plenipotentiary of the Reich Minister of Justice for the Emsland convict camps in Papenburg.
41. German State Minister for Bohemia and Moravia in Prague.
42. Supreme Command of the Wehrmacht, Berlin.
43. Reich Leader SS and Chief of the German Police (Pommerenin) [sic].
44.
[illegible marginal note]
[Stamp] Berlin, 25 January 1944
TRANSLATION OF DOCUMENT NG-230
PROSECUTION EXHIBIT 331
LETTER FROM ARMED FORCES HIGH COMMAND TO THE FOREIGN OFFICE, COPY
TO DEFENDANT VON AMMON, 4 APRIL 1944, CONCERNING TWO NOTES OF M. DE
BRINON, VICHY GOVERNMENT AMBASSADOR, ON NIGHT AND FOG CASES
Berlin, W 35, 4 April 1944
Copy Tirpitzufer 72–76
High Command of the Armed Forces
14 n 16.18 WR (I/3)
259/44g
Secret
To the Foreign Office
Berlin W 8
Subject: Prosecution of offenses against the Reich or the army
of occupation in the occupied territories
2 enclosures[458]
Enclosed two notes of the French Ambassador and Secretary of State de
Brinon are submitted
The High Command gives the following comment upon them:
In virtue of the directions given by the Fuehrer on 7 December 1941,
capital punishment will be inflicted on principle in the occupied
territories for offenses of non-German civilians which are directed
against the Reich and the army of occupation and are endangering its
safety or readiness for action. Whenever capital punishment would not
be probable or could not be immediately inflicted and executed, the
perpetrator will be brought to Germany and sentenced there. In some
cases perpetrators who have been sentenced in the occupied territories
will be committed for imprisonment to a penitentiary in Germany. This
will be done for political reasons on principle in case of capital
punishments inflicted on women, men of 70 years and older, and fathers
of numerous children under age, excepting punishments inflicted on
account of murder or of such crimes which are in connection with
actions (e.g., partisans).
The transfer to Germany will be made, in accordance with the wishes
of the Fuehrer, in order to make an efficacious and lasting warning
example. The Fuehrer desires the relations and the population to be
kept in suspense as regards the fate of the perpetrator. To German and
foreign bureaus it will be replied to inquiries and petitions--“The
perpetrator has been committed to prison, further information cannot be
given.”
To Ministerialrat von Ammon
It is therefore impossible to comply with the wishes of the Ambassador
de Brinon. The High Command requests you to inform him in due form.
BY ORDER:
[Typed] signed DR. HUELLE
Berlin, 6 April 1944
High Command of the Armed Forces
14 n 16.18 WR (I/3)
259/44g
To the Reich Minister of Justice
Berlin W 8
In reference to letter of 17 March 1944 (V s1 263/44g). The above copy
is forwarded to you for information
BY ORDER:
[Signed] DR. HUELLE
[Handwritten note]
To previous correspondence [illegible].
Prosecution of offenses against the Reich or the army of
occupation in the occupied territories
[Initial] A [von Ammon]
2.5
TRANSLATION OF DOCUMENT NG-262
PROSECUTION EXHIBIT 333
FILE NOTE INITIALED BY DEFENDANT VON AMMON ON 10 MAY 1944, CONCERNING
THE STATUS OF NIGHT AND FOG CASES AS OF 30 APRIL 1944
_Copy_
IV n 313/42 secret
Survey of the Status of NN Proceedings on 30 April 1944
I. The following cases were transferred by the military authorities to:
_a._ Chief Public Prosecutor Kiel--
12 proceedings with 442 defendants.
_b._ Chief Public Prosecutor Oppeln--
729 proceedings with 4048 defendants.
_c._ Chief Public Prosecutor Breslau[459]--
1273 proceedings with 2149 defendants.
_Total_--2014 proceedings with 6639 defendants.
II. Charges preferred by:
_a._ Chief Public Prosecutor Kiel--
9 proceedings with 345 defendants.
_b._ Chief Public Prosecutor Oppeln--
494 proceedings with 1578 defendants.
_c._ Chief Public Prosecutor Breslau--
813 proceedings with 1113 defendants.
_d._ Chief Reich Prosecutor with the People’s Court--
134 proceedings with 588 defendants.
_Total_--1450 proceedings with 3624 defendants.
III. Verdicts have been submitted from:
_a._ Kiel Special Court--
8 cases with 168 defendants.
_b._ Oppeln Special Court--
307 cases with 725 defendants.
_c._ Breslau Special Court--
377 cases with 473 defendants.
_d._ Chief Reich Prosecutor with People’s Court--
115 cases with 427 defendants.
_Total_--807 cases with 1793 defendants.
[Handwritten] To the files concerning the prosecution of
criminal acts against the Reich and the occupying power in
occupied territories.
[Initial] A [von Ammon]
10 May
TRANSLATION OF DOCUMENT NG-1886
PROSECUTION EXHIBIT 546
LETTER FROM DEFENDANT VON AMMON TO THE ATTORNEY
GENERAL IN MUNICH, 22 NOVEMBER 1944, CONCERNING
THE EXECUTION OF NIGHT AND FOG PRISONERS
The Reich Minister of Justice
_IV a 676/44g_
Berlin W 8, 22 November 1944
Wilhelmstrasse 65
Telephone: 11 00 44
Long distance calls: 11 65 16
Diary No. 1716/44g
SECRET
To the Prosecutor General in Munich 35
Subject: Certification of the personal data of executed NN
prisoners
Reference: Diary No. 1584/44g
In view of the new arrangement concerning the treatment of NN prisoners
in the future there no longer will be executions of NN prisoners in any
large numbers.
Therefore, a closer examination of the suggestions, made by
the director of the penitentiary and the detention prison
Munich-Stadelheim, is not necessary. I request you to notify the latter
accordingly.
BY ORDER:
[Typed] DR. VON AMMON[460]
[Official seal of the Ministry of Justice]
[Signed] RUTH
Certified: Court Official
EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS
RUDOLF LEHMANN[461]
_DIRECT EXAMINATION_
* * * * * * *
MR. KING: Will you tell us briefly what your rank was and what
your duties were in the High Command of the Armed Forces?
WITNESS LEHMANN: I was the Ministerialdirektor in the High
Command of the Armed Forces, and I was Chief of the Legal Division of
the Armed Forces.
Q. Do you know of the so-called Nacht und Nebel Decree which was issued
in the latter part of 1941 over the signature of Keitel?
A. I am very well informed as to how that came about.
Q. Will you tell us briefly how the Nacht und Nebel program was
supposed to work? In other words, what was the theory upon which this
“Erlass” or decree was issued?
* * * * * * *
A. There arose in France, after the beginning of the Russian campaign,
the resistance movement which became very active. Hitler complained
to the justice administration of the armed forces that on account of
their attitude they were not in a position to suppress that resistance
movement. That is the general background for the Nacht und Nebel Decree.
In detail this is what happened--In the beginning of October 1941 I
received a letter from Field Marshal Keitel--but I want to state here
that Keitel was always at headquarters, whereas I was always in Berlin.
In this letter, which all my assistants have read, Keitel passed on a
directive which he had received from Hitler. The letter was quite long,
several pages in handwriting. In that letter, it was expressed that
Hitler considered the resistance movement in France a tremendous danger
for the German troops. It could be seen that the methods previously
used were not sufficient to suppress that movement. There was no sense
in passing sentences of prison terms--considering conditions as they
were--which were handed down after a long period. That was not the
right deterrent which the armed forces should employ; therefore, new
means would have to be found.
Q. Now, Witness, you have given us some background on the history of
the Nacht und Nebel Decree. Will you tell us with some particularity
how the Nacht und Nebel program was supposed to work? In what way were
the resisters to be handled under the Nacht und Nebel Decree?
A. Yes. That was also stated in that letter by Keitel. The Fuehrer
demanded that Frenchmen who were suspected of such acts, during night
and fog--that is where the expression comes from--should be brought
across the border and that in Germany they should be held completely
incommunicado. That should only not apply in those cases where
immediately a death sentence could be passed in France. This measure
could be used as a deterrent but not the procedures as had been used
heretofore. That was the general plan of Hitler’s which did not include
anything about the question as to who should deal with these people
after they had been brought to Germany.
Q. Now, Witness, did you, in your position with the High Command of the
Armed Forces negotiate with the Ministry of Justice regarding the Nacht
und Nebel Decree?
A. Yes, but not immediately. At first, in a lengthy conference with
Field Marshal Keitel, I tried to thwart the entire plan because
I disagreed--I definitely disagreed with it. Details about that
conference, I am sure, are not interesting for us now. In doing that,
I only had a very limited success; that is, Keitel said that he would
be ready to speak to the Fuehrer once more. But already on the occasion
of this first conference, he stated that the Fuehrer insisted on the
carrying out of that concept and he used a term which I cannot forget.
Hitler had said with reference to that--“Nobody can deny that I am a
revolutionary of considerable stature. Then I should know best how
uprisings can be suppressed.” Keitel then spoke once more to Hitler, as
he stated, but it was of no avail. According to Keitel’s information,
Hitler said that there were things of which he understood more than
jurists do.
In the conference with Keitel, I raised the question immediately as to
who should deal with these matters in Germany now. Thereupon, Keitel
said, that it would be most according to the desire of the Fuehrer if
the Secret State Police would deal with it. But we were against that
from the very beginning, and also Admiral Canaris was against it with
the same severity.
After the argument had gone back and forth, I received the permission
from Keitel to get in touch with the Ministry of Justice.
Q. Do you have any reason which you can state at this time as to why
Hitler preferred the Ministry of Justice rather than the army court
system to deal with Nacht und Nebel cases?
A. That question can only have been discussed between Keitel and
Hitler. It was a way out which I had suggested, because under all
circumstances I wanted to achieve that these matters should continue to
be dealt with by judges, and since the aversion of Hitler against the
armed forces justice was known, it could be assumed that he would still
prefer civilian court to us.
* * * * * * *
Q. When did you first confer with a member of the Ministry of Justice
regarding the assumption by the Ministry of Justice of the Nacht und
Nebel program?
A. I went to see State Secretary Freisler, I believe, in October 1941.
I went to Freisler because he dealt with the criminal cases in the
Ministry. He was in charge of them.
Q. Can you tell us what purpose you had in mind in going to Freisler;
what proposition did you discuss with him?
A. I discussed with him the proposition that the cases which the
military courts in France would not keep should be taken over and tried
by the civilian justice administration.
Q. What was Freisler’s reaction to this suggestion which you made?
A. He was not enthusiastic about it but he agreed that one had to try
and keep these cases for the administration of justice as such.
Q. Can you tell me this? Did Freisler have the authority to agree on
behalf of the Reich Ministry of Justice to assume the trying of Nacht
und Nebel cases?
A. That question I can only answer by saying that Freisler told me that
first he had to think it over; and secondly, he had to discuss it with
State Secretary Schlegelberger who was at that time in charge of the
Ministry.
Q. Is it your impression that Schlegelberger was the individual in the
Ministry of Justice to whom Freisler went to secure permission and
authority on behalf of the Ministry of Justice to try the Nacht und
Nebel cases?
A. That is hard to answer. I can only answer it out of my general
background by saying that this was a question of considerable
importance, and I thought it was quite clear that Freisler told me that
he had to ask the man who was in charge of the Ministry, the acting
Minister.
Q. Mr. Lehmann, on 23 December 1946 you put your name to an affidavit.
Do you recall signing an affidavit about that time?
A. Yes.
Q. I point out to you that this affidavit is now in evidence before
this Court as Document NG-484,[462] Prosecution Exhibit 307. I wish to
read to you a statement from that affidavit, and ask you a question
concerning it after I have read it. The statement is as follows:
“Schlegelberger, who was then acting Minister of Justice, was in my
opinion the only person who could consent to take over these Nacht und
Nebel cases by the Ministry of Justice.” I ask you now, do you still
agree with that statement?
A. Yes, with the reservations that I have made before; as far as I was
informed about the routine in the Ministry.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT
SCHLEGELBERGER[463]
_DIRECT EXAMINATION_
* * * * * * *
DR. KUBUSCHOK (defense counsel for defendant Schlegelberger):
To what extent did you participate in the legislative work and the
execution of the Night and Fog Decree, the Nacht und Nebel Erlass?
DEFENDANT SCHLEGELBERGER: First, I must make a temporal
limitation here. The Tribunal knows that on 20 August 1942 I left the
Ministry of Justice. Thus, in regard to my person, only the previous
period can be considered. During that time the procedure, as well as
taking prisoners into custody, remained exclusively in the hands of the
Ministry of Justice.
If I am supposed to make some statements about the decree, I would
like to emphasize that the jurisdiction of the Ministry did not refer
to the western territories, which are under consideration here. This
was entirely under the competence of the military commanders. Hitler
had issued the order to Keitel that in the future merely in very clear
cases, and in such cases where the death sentence could be expected
with certainty, the military courts were to pass sentences. The rest
of the culprits were, for the purpose of a deterrent by the police, to
be transported to Germany to remain under the custody of the police,
and--and this is the expression he used--to disappear during night and
fog.
The chief of the legal division of the Wehrmacht, Dr. Lehmann, realized
what the situation was, and after unsuccessful attempts with Keitel
and with Hitler he tried to have it avoided that the prisoners be left
in the custody of the police by having them tried before the ordinary
courts. He called on Freisler. Freisler did not disagree with Lehmann,
and basically asked for my agreement. I gave my approval.
Here, too, I had to make a serious decision. On the one hand, the
fate of the prisoners was concerned. If they were in police custody,
their fate could not be controlled. On the other hand, there was
the necessity to loosen certain regulations which formed definite
components of our legal system.
The Fuehrer order was based on the fundamental idea that the deterring
force, through the cutting off of the prisoners from every contact
with the outside world, could be achieved in this manner. If we now
wanted--and this is the decisive question--to have the direction of
the prisoners, if we wanted to avoid having the prisoners remain
in police custody and thus not carry out Hitler’s decree but break
its head, no other recourse was left to us but to conduct our court
proceedings under the point of view of secrecy, since otherwise Hitler
would immediately have forbidden and actually prevented the fact that
ordinary courts should handle these matters.
However, in order to avoid any doubt, I want to emphasize expressly
in the following that I have to state we are concerned only with
regulations governing proceedings. The NN prisoners were supposed,
and were, to be tried materially according to the same regulations
which would have applied to them by the courts martial in the occupied
territories. The rules of procedure had been curtailed to the utmost
extent. In German law we also know of the possibility, because of the
endangering of the security of the State, that the public is excluded
when the opinion on which the sentence is based is pronounced. We now
had to take one more step, to issue an order to make available the
possibility that the pronouncing of the sentence itself would not be
made in public. One could not avoid the recognition that otherwise the
secrecy would not be maintained, and I have to repeat, the cases would
have been taken out of our hands immediately.
Everything else was based on this. For example, the limitation in
the selection of defense counsel. Germany had a very eminent legal
profession, and in my opinion it was a matter of course that every
lawyer fulfilled the oath of secrecy given to him by law. However,
one had to realize that as with every other profession, the lawyer’s
profession too, during such times, was permeated with bearers of the
resistance idea, and therefore, here too, a certain caution was needed
and it was necessary to limit the selection of defense counsel.
It is well known that in the executive order which I signed--and it
was the same as the draft submitted in the document book[464]--that I
limited the use of foreign evidence. However, if one thinks the matter
through correctly and thinks of the practical application, one will
realize that this limitation worked only in favor of the defendants
because numerous acquittals occurred according to the principle,
that governs other law as well as ours, _in dubio pro reo_.
In accordance with this basic attitude, it was decisive, under all
circumstances, to avoid the subsequent transfer of the NN prisoners to
the police.
PRESIDING JUDGE BRAND: We will recess until 1:30 this afternoon.
_AFTERNOON SESSION_
(_The hearing reconvened at 1330 hours, 30 June 1947_)
THE MARSHAL: The Tribunal is again in session.
DR. KUBUSCHOK: We have come to the discussion of the NN
regulations. Will you please continue there?
DEFENDANT SCHLEGELBERGER: I have taken the liberty to explain
that the purpose in including ourselves in the procedure was to
counteract Hitler’s plan to have prisoners in the hands of the police.
There arose a problem--If one had to consider that in the regular
course of procedure a penalty was found which expired before the end
of the war. In such cases there would not have been any possibility
to keep these people but they had to be taken over by the police
and that would have thwarted the purpose--of the inclusion of our
administration. That, one had to consider. The matter was simple, if
the prosecutor, after examining the facts, arrived at the result that
the penalty had to be so low that the term would expire before the
expected end of the war because then he did not demand that a date for
the main trial be set; the procedure remained pending and the accused
remained in the custody of the administration of justice. The situation
however could become more difficult if the prosecutor intended to
demand a higher penalty which probably would expire after the end of
the war and if the court would arrive at a more lenient sentence. The
way out could be found only by quashing the proceedings in time and in
order to do that various means could be applied. It could have been put
to the court, that is, by legislation of course, to make a decision
for this continuance, and could also put the prosecutor in a position
where he would demand discontinuance and then let the court decide for
discontinuance. I took the latter approach. Therefore, I provided that
if the court wanted to deviate from the demands of the prosecution it
should inform the prosecutor so that he had the possibility to demand
discontinuance, but with all emphasis I want to stress there can be no
question that the courts were to be bound in any way by the demands for
a penalty on the part of the prosecutor. That would have been quite
irresponsible.
PRESIDING JUDGE BRAND: Dr. Schlegelberger, are you still
speaking with reference to the NN case?
DEFENDANT SCHLEGELBERGER: Yes. So, it is quite out of the
question that the courts were to be bound in any way to the penalty as
requested by the prosecutor as Freisler has stated in a letter which
was written for special service to Thierack and which is quite wrong,
but I repeat again, the intention was only for the court to tell the
prosecutor, “we are arriving at a milder sentence than you requested,”
so as to put the prosecutor in position to demand discontinuance; then
the matter remained in the hands of the administration of justice; that
is to say that the defendant was in the custody of the administration
of justice. May I summarize. The provisions concerning secrecy had
to be made so that the matter would not be taken out of our hands by
Hitler. I was faced with the problem as to whether I should refuse
to take over the NN case altogether, and the Tribunal will recognize
that that would have been very simple for me. I could have held the
position that as far as my department was concerned that I had nothing
to do with the matter and therefore could reject it or refuse to have
anything to do with it. But I could not take the responsibility to
assist, to contribute, that the Hitler order be carried out and that
the NN prisoners remain in the custody of the police. And, I believe
that that decision has also found its justification in the findings of
the International Military Tribunal concerning the treatment of these
prisoners in the hands of the Gestapo.[465]
* * * * * * *
_EXAMINATION BY THE TRIBUNAL_
JUDGE HARDING: Dr. Schlegelberger, you have testified that
you favored the decree as to Poles and Jews and the taking over of NN
prisoners for trial, to avoid having these people turned over to the
police, is that correct?
DEFENDANT SCHLEGELBERGER: (Nodded in the affirmative.)
Q. Why was that?
A. May I ask you a question, namely, does this question refer to the
Poles and Jews, or as I now understand it, to the NN prisoners?
Q. It applies to both.
A. Well, that was for the following reason. From the cases of transfer
about which I reported, I saw that the police was the instrument
of power that Hitler used in order to do away with certain people
without any legal procedure, and I wanted to give those people a legal
procedure with a regular trial.
Q. Now the administration of justice at one time, at least, was
responsible for the prosecution and trial of all crimes committed in
the Reich, isn’t that correct?
A. Yes.
Q. Was there ever an investigation with subsequent trial after 1
September 1939 for the abuse or murder of a person in the hands of the
police or in a concentration camp?
A. I can answer that question by saying that the Ministry of Justice
as far as I am informed--that is, these matters were in the penal
sector--interfered in every case, even in the case of abuses and
concentration camps where they could actually do something about it,
only since 1939--I don’t remember the exact date--these matters were
taken out of our hands through the special jurisdiction of the SS.
Q. I don’t believe you quite answered my question. Did the Ministry of
Justice ever call or ever prosecute a member of the police or somebody
connected with the concentration camp because of abuse of the prisoners
or murder of prisoners in their hands?
A. Yes, the Ministry did so.
Q. In what cases? That was after 1 September 1939.
A. In any case, it did happen before September 1939. I regret, Your
Honor, that I cannot give exhaustive information about this because
those are events and trials which were outside of my official duty, but
I can say with certainty and under the oath under which I am now that
because of abuse in concentration camps measures were taken with the
utmost energy.
Q. Did a person who had been handed over to the police or who was sent
to a concentration camp, including Poles and other foreigners, have any
recourse to the law as administered in the Reich, for his protection?
A. Well, if these people were in the hands of the police, we could
not extend that protection to them. As long as those people were in a
concentration camp, and to the extent that we had any jurisdiction over
concentration camps--to that extent we always intervened, if somehow or
other we could find out that there had been some abuse; but later on,
from 1939 on, these matters came under the special SS jurisdiction, and
we were no longer in a position to interfere[466].
Q. After that these people had no recourse to the law as administered
in the Reich?
A. We could not give them any legal recourse; we of the Ministry of
Justice could not extend legal protection to them.
Q. Did they have any legal protection?
A. Well, I would like to say there was a jurisdiction over the inmates
of the concentration camp and this was in the jurisdiction of the
SS courts. That SS jurisdiction in accordance with its duty, could
intervene in the same manner as we if anything had happened, that was
the legal protection afforded to them.
Q. That was the only legal protection they had?
A. Yes, I could not name any other.
Q. Now, by what laws, orders, or decrees were these people left to the
sole jurisdiction of the SS and the police?
A. Well, the Poles and Jews, NN prisoners were only handed over to the
police after my time in office. As long as I was in office this did not
happen.
Q. I mean, by what order or decree--you speak of a time when the SS had
their own courts--by what order or decree--
A. The SS got a special jurisdiction through a law of 1939. The handing
over of Poles and Jews, of the NN prisoners, and other people took
place through measures of the year 1942, I believe. However, I do not
want to make this statement with certainty, because it was after I had
resigned.
Q. After this order setting up special jurisdiction for the SS the
Ministry of Justice could not prosecute them, isn’t that correct--or
try them?
A. No, it couldn’t.
Q. Now, I have here this decree which is found in volume 2, on page
55, decree of 17 October 1939, relative to the Special Courts for the
SS.[467] Are you familiar with that?
A. Yes.
Q. After that the Ministry of Justice could not try these people for
abuse or murder of persons in their hands, is that correct?
A. Yes, I assume so. Please take into consideration when considering
my answers that these matters were apart from my official activity.
Therefore, I can rather give an expert opinion than a testimony as a
witness.
Q. Well, the effect of this decree was to deprive the people in the
hands of the police of all legal recourse, is that not correct?
A. The effect was in any case that they had no recourse to the ordinary
means of administration of justice. But the SS jurisdiction in my
opinion had the same duties, the same possibilities for their people as
we had.
Q. The only recourse, then, was to the SS administration of
justice--now, on page 56 there is this decree which is signed by
you, implementing that order, which places the police beyond the
administration of justice.
A. I didn’t quite understand.
Q. I have here on page 56 of volume 2 a decree concerning the
jurisdiction of SS courts and police courts in the Protectorate Bohemia
and Moravia[468] which implements to some extent the preceding decree
which I called to your attention. This decree is signed by you, which
sets up Special Courts for the police, that is, takes them out from
under the administration of justice. Now, this is signed by you. Do you
have any explanation of that?
A. May I ask you to state the date again, just the date?
Q. 15 July 1942.
A. Is that an order which was cosigned by Keitel? (Document handed to
the witness.)
Yes. This decree, however, I believe, has nothing to do with the
matters we have discussed so far. This decree as far as I remember, was
connected with a decree of January of the same year. In this decree
of January in the Protectorate military jurisdiction was rescinded,
and only for certain cases the Commander in Chief of the Wehrmacht was
granted the right, in the matter of attacks against the Wehrmacht,
to found the competency of Wehrmacht courts. The text of this decree
which concerns itself with the policy is almost literally the same
one as that of the decree of January 1942 regarding the Wehrmacht.
Here in this decree for the police, they were concerned with certain
courts for the SS. But the Wehrmacht SS [sic], which was considered a
special group of the SS was supposed to be treated in the same way [as
the Wehrmacht]. Therefore, after a discussion between Keitel and the
commander of the SS Wehrmacht [sic], the possibility just as it was
given to the Wehrmacht, was given to the SS as a fighting troop, to
found such courts. But this has nothing to do with the question of SS
jurisdiction, which is another question.
Q. Were there any other orders or decrees issued whereby prosecution
of SS and similar units was taken out from under the administration of
justice, and if so, what were they?
A. Yes, there was a special law about SS jurisdiction. At the moment,
I cannot tell you the date, but it was from 1939. That is the civilian
SS. But this decree refers to the SS as part of the Wehrmacht.
Q. Well, is that the decree of 17 September 1939 that I called your
attention to?
A. The decree which you were kind enough to show to me just now.
MR. LAFOLLETTE: Will Your Honor permit me? It is October. Your
Honor said September.
JUDGE HARDING: It is October, yes.
DEFENDANT SCHLEGELBERGER: Yes, 17 October 1939. That is the
decree about the SS jurisdiction.
Q. After that decree, did the Ministry of Justice have any means
whereby they could protect a person in the hands of the police in any
way whatsoever?
A. In my opinion, no; and that is why I tried to keep all these people
away from the police. That is why I wanted to keep all these people
within the sphere of the administration of justice, so that I could
protect them.
Q. Then these foreigners, Poles, and Jews in the hands of the police
were beyond any recourse of law in Germany, is that correct?
A. Not in my opinion.
Q. What recourse did they have?
A. Well, they probably had to turn to the higher SS office and to ask
for help.
Q. Was that recourse in law or is that merely administrative?
A. Yes. That was more administrative.
JUDGE HARDING: That’s all. That answers my question.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT VON AMMON[469]
_DIRECT EXAMINATION_
* * * * * * *
DR. KUBUSCHOK (counsel for defendant von Ammon): You have
stated that you were not a confirmed National Socialist. In view of
your attitude, did you not have conflict of conscience sometimes during
your activity in the Ministry of Justice?
DEFENDANT VON AMMON: To a certain extent I have to answer
“yes” to that question. In my official activity, I occasionally had to
apply laws or other legal regulations or had to follow instructions
issued by my superiors with which I was not quite in agreement in
my own mind. In such cases I considered it my duty to follow such
regulations and provisions which in my opinion though unpleasant were
after all effective. Likewise, I considered it my duty to follow
the instructions issued by my superiors. However, I would not have
considered myself obligated to follow instructions issued by my
superiors which were contrary to law. Such illegal orders however
were not given to me. In such cases, however, a certain amount was
left up to my own discretion and that happened in many cases. When
I applied that discretion I tried as far as possible to make my own
opinion apply. Of course, the possibility in those directions were not
overly large since as a Referent I had to obtain the agreement of my
superiors, the more important decisions. Because of my lenient attitude
I was frequently objected to, especially by my superior Vollmer and the
Minister of Justice Thierack.
Q. Did your attitude change when the war broke out?
A. Due to the outbreak of the war nothing changed in my basic attitude.
I was of the opinion that since the war had broken out, independent
of its consequences for national socialism, it would bring about the
decision, “to be or not to be” for Germany. Therefore, I believed that
every German had to fulfill his duty in his official position.
Q. I now come to the main charge which the prosecution has raised
against you in regard to your dealing with the so-called NN cases.
Under what circumstances were you entrusted with this new field of work?
A. The distribution of the Referate [sections] was as a rule made by
order of the department chief without asking the Referent about it in
advance. Thus, I too in February 1942 was assigned by my department
chief, Ministerial Director Crohne, to work with NN cases without my
knowing for the time being what these NN cases were all about.
Q. What tasks and authorization did you have as Referent of Department
IV of the Ministry of Justice for NN cases?
A. In order to answer that question I first have to describe briefly
the competency of Departments III, IV, and V.
Department III was the department for criminal legislation, Department
IV was for the administration of criminal law, Department V was
the department for the administration of penalties. It belonged to
the competency of Department III; the preparations of the laws and
regulations similar to laws, the housing of prisoners belonged to the
competence of Department V and the treatment of these prisoners while
they were in prison. Department IV, that is my department, dealt in the
main with the cases against the defendants until they were sentenced by
a court, including the clemency procedure. Furthermore, the issuance of
general provisions regarding legal procedure in as far as Department
III was concerned was not competent for this.
Q. As far as Department V was competent, what authorization did you as
Referent have with regulation to your superiors?
A. Gramm and Mettgenberg have already testified to this, here on the
witness stand. I only have to add some supplementary remarks. As
Referent, I had to a certain extent the right to give my signature,
that is to say, to a certain extent I could give written or oral
statements by order. This right for signature, however, was limited,
since due to my being subordinate to the department chief, and for the
most part of my activities I was subordinate also to a subdepartment
chief. During the first month of my activity in the NN cases my section
was directly under the department chief. A few months later, however,
Mettgenberg was put in charge as a subdepartment chief between me and
the department chief. My authority in relation to my subdepartment
chief and department chief were limited through general regulations
rather carefully. The regulations applied which were contained in
Exhibit 510 submitted by the prosecution.[470] May I refer to these
regulations? Regarding the letters by the Ministry of Justice that
were sent outside the Ministry of Justice which were submitted by the
prosecution, in accordance with the provisions I mentioned, I did
not sign a single one finally, but all the letters after I had also
cosigned them I submitted to my subdepartment chief for signature. He
then for the most referred them to the subdepartment chief or even to
the under secretary or to the minister. If the prosecution, contrary to
this, in this submission of several documents, stated that the letters
of the Ministry of Justice were signed by me, that is an error. There
are throughout letters for which I did give a cosignature, that is in
the right hand lower corner, they bear my initials, but one of my
superiors gave the final signature.
* * * * * * *
Q. As Referent in NN cases, did you have a large staff of assistants?
A. No. I never had more than one assistant, and he worked only part of
the time in NN cases, and then only at the beginning of my activity
with NN cases. From the beginning of 1943 on I worked entirely without
any assistance. From that time on, due to the heightened drafting
for the Wehrmacht, younger gentlemen who could be assistants, were
available only to a very limited extent in the Ministry of Justice.
From that time on I had only a so-called “Mittlerer Beamter,” a civil
servant in the intermediate level [of civil service] for registration
and filing.
There was a special provision only for preparation of clemency pleas in
death sentence cases. For that work, I had assistance from time to time.
Q. I refer to that extent to Document NG-988, Prosecution Exhibit
510, the plan of distribution of work which shows further facts.
Witness, please give us a survey over the periods when the general
administration of justice participated in the NN cases.
A. We can distinguish between two periods during which the general
administration of justice was concerned with NN cases. The first period
extends from February 1942 until October 1942; the second from October
1942 until September 1944, and to some extent until the end of the war.
During the first period the executive regulations of the Reich Ministry
of Justice of 6 February 1942[471] were decisive in their original form
as they had been issued by Schlegelberger and Freisler. Two factors
characterized this period. First, the police were involved in the NN
cases only to the extent that the transportation of the NN prisoners
from the occupied territories was carried out by the police; and
secondly, for the sentencing of NN cases only some Special Courts were
competent. The competency of the People’s Court did not exist at that
time, for those cases.
The second period begins with the changes which were introduced soon
after Thierack assumed office. The police now also became competent to
the extent that the NN prisoners, for the detention of whom no legal
reason existed any more, were transferred to the police for protective
custody for the duration of the war.[472] And for the trying of NN
cases, in addition to the individual Special Courts, the People’s
Court now is competent too. This second period ends with the order
that the NN prisoners should generally be returned to the police. This
order was issued in September 1944. The return, however, was carried
out until the end of the war only partly so that at the end of the war
numerous NN prisoners were still in the detention of the administration
of justice.
Q. We shall now turn to the first period for which the executive
regulations of 6 February 1942 were decisive. Witness, were you
involved in the drafting of these regulations and the discussions
with the OKW which preceded this decree and which the witness Lehmann
testified about?
A. No. I neither participated in the formulation of the regulations
nor in the preceding negotiations. The regulations were worked out
in the departments for penal legislation, first Department II and
later III, and at that time I did not belong to either of them. About
the regulations and the preceding negotiations, I heard only on the
day when the regulations were issued. On that day--it was 6 February
1942--the presidents of the courts of appeal and the attorneys general
of those districts in which the NN cases should in the future be tried,
had been ordered to the Ministry of Justice for a discussion.
Immediately preceding the beginning of the meeting my then department
chief, Ministerial Director Crohne, had a message sent to me that I
should come to the meeting because in future I would have to work with
the penal cases which would result from the newly issued regulations.
I then attended that meeting and for the first time, from the mouth of
State Secretary Freisler, who was presiding over the meeting, I heard
about the Night and Fog Decree and the executive regulations issued
pursuant to it.
Q. In the executive regulations of 6 February 1942 there are provisions
about the limitation of foreign evidence. Paragraph 5 of the executive
regulations, Exhibit 306[473], which, however, are here only in draft
form gives this regulation--The use of foreign evidence material
requires the prior agreement of the public prosecutor. Furthermore,
paragraph 4 of the same regulation provides that the senior public
prosecutor has to obtain the decision of the Reich Minister of Justice
before he can use foreign evidence material or can agree to the use
of foreign evidence material by the court. This latter regulation is
contained in Exhibit 308[474].
The indictment asserts that it was one of the purposes of the NN
procedure to prevent the defendants from having access to witnesses or
any other evidence. What do you have to say about this?
A. First, I would like to correct you, Counsel. You quoted paragraph 4
of the circular decree of 6 February 1942, and by mistake you said that
this was the same provision as paragraph 5 which you mentioned before.
These are two different regulations. First is paragraph 5 of the
executive order of 6 February 1942. That is Exhibit 306, and the second
regulation is paragraph 4 of the circular decree of the same day, and
that is Exhibit 308.
In answer to the question of what I have to say about the allegation
in the indictment, that it was one of the purposes of the NN procedure
to make it impossible for the defendants to have access to witnesses
or any other evidence, I have to say that that assumption is entirely
wrong. The limitations on foreign evidence material was not one of the
purposes of the NN procedure, but the absolutely undesired result which
resulted from the necessity of keeping the matter secret.
It could never result in a disadvantage for the defendant but would
of necessity result in favor of the defendant. The German criminal
procedure is based on the assumption that the defendant has no duty
or no authority to prove anything. Therefore, any doubt had to work
in favor of the defendant. In the same way, doubts which arose out of
the limitation of foreign evidence worked in favor of the defendant.
Moreover, foreign evidence was in no way excluded altogether but it
should only be procured and used in such a way that the secrecy of the
proceedings and the keeping incommunicado of the defendant would not be
endangered.
Q. What was the effect of the regulations about the limitation of
foreign evidence in practice?
A. According to my observation, in the majority of cases these
regulations did not lead to any difficulties. In many cases the
clarification of the facts was accomplished by the statements of the
defendants or codefendants or on the basis of German evidence. This
was the case especially in the numerous cases in which simple facts
were involved. Thus, for instance, in most of the cases of illegal
possession of weapons, a weapon was found in the possession of the
defendant. Beyond this, the use of foreign evidence was admissible as
far as the secrecy of the proceedings was not endangered by this. Thus,
the Ministry of Justice in any case permitted that a foreign witness
not before the court trying the case but in the occupied territories
could be examined by an investigating judge. If this, however, did not
bring about the desired result, if there still existed some doubt as
to the guilt, the defendant had to be, and was, acquitted. According
to my observations, probably in all courts which had to deal with NN
cases, a large number of acquittals were pronounced, because owing to
the limitation of foreign evidence defendants could not be convicted.
I remember, in particular, extensive trials before the Special
Court of Oppeln against numerous defendants who were charged with
participation in dangerous resistance movements in Belgium. According
to the indictment, I was under the impression that heavy sentences
would be pronounced. In effect, however, the result of the trials was
quite different. The defendants maintained that it was not a dangerous
resistance movement, but a harmless club. In view of the limitation
of foreign evidence it was impossible to disprove this defense. Thus,
the defendants had to be acquitted, or they could be given only slight
penalties because of participation in a club not authorized by the
military commander.
Q. Paragraph 6 of the executive orders of 6 February 1942 which have
already been mentioned--that is, Exhibit 306[475]--makes the following
provision: The public prosecutor can, until the sentence is pronounced,
withdraw the indictment or ask that the trial be postponed. The court
has to agree to the application of the prosecutor for suspension. If
the court wants to deviate from the application made by the public
prosecution, it has first of all, to afford them an opportunity to
state their opinion.
Witness, what can you say about this regulation?
A. Dr. Schlegelberger, when he was examined, commented extensively on
these regulations. I only have to add the following: The procedure
described was, as Dr. Schlegelberger stated, introduced in order
to prevent NN prisoners from being transferred to the police. For
the court itself, in view of its prestige, it probably was not very
pleasant. The authors of that regulation realized that too. As I said
already in my affidavit of 17 December 1946, that is Exhibit 337[476],
even Freisler said in this meeting of 6 February 1942, that with this
regulation one had reached the utmost limit of what one could expect of
the court. The authors of this regulation, however, believed that they
had to put up with that regulation in the interest of the NN prisoners.
Q. The regulation of paragraph 6 of the executive orders which we just
discussed--was it ever applied in practice?
A. I don’t believe so. The regulation was in effect only for a brief
period. Thierack, in October 1942 soon after he became Minister,
rescinded it. During the time that this regulation was in effect, as
far as I remember, only very few NN cases were tried. These were clear
cases in which the court had no misgivings against agreeing with the
plea of the prosecutor. If that regulation would have been applied, the
Ministry certainly would have been informed about it, and I certainly
would still remember it.
Q. On the changes which Thierack ordered in October 1942, Dr.
Mettgenberg has commented.[477] Did you have misgivings against these
changes, especially also against the transfer of NN prisoners to the
police?
A. The changes which Thierack made also had, without doubt, a favorable
side. The unpleasant regulation of paragraph 6 of the executive
order of 6 February 1942 was removed. Even Freisler, as I mentioned
before, stated about it that with this regulation the outside limit
had been reached of what could be expected of the courts. Now, this
bad condition was removed, that the justice authorities of the
administration had to detain persons in whose cases the reason for
detention had to be maintained by the procedure discussed by Dr.
Schlegelberger. On the other hand, the transfer of the NN prisoners to
the Gestapo was without doubt unpleasant. After the competency of the
general administration of justice for the detention of NN prisoners
who were acquitted or whose time of arrest had been removed, it again
was returned to the armed forces. According to the provision of the NN
decree, however, the armed forces, as a rule at least, were not allowed
to return these NN prisoners to the occupied territories. Neither,
for the reason of keeping this matter secret, could they be set free
in Germany. The only way out that Thierack saw was their detention by
the Gestapo and the OKW who in the last instance had to decide about
this affair agreed to the suggestion by Thierack. If now I am asked
if, in regard to the treatment of the prisoners by the police, I had
misgivings, I can answer that in the following way: The prisoners were
handed over to the police with the express provision that the detention
was carried out only for reason of secrecy and in the interest of
keeping the whole affair secret. Therefore, the Gestapo merely had
to detain them and not to carry out a penalty. As far as I know, in
the negotiations between Crohne and the Gestapo, the representatives
of the Gestapo stated that in the case of detention of NN prisoners,
they would take into consideration the fact that against the prisoners
personally there was no longer any charge. Later on, the Reich Leader
SS also ordered expressly that the NN prisoners, who were handed over
to the police, always should be put on the level of Protective Custody
I which was the most lenient level.
Q. I refer to Exhibit 328[478] in regard to the last statements made by
the witness.
Witness, as Mettgenberg testified in September 1944, the general
administration of justice was again deprived of the competency for NN
cases. It was ordered that NN prisoners generally should be handed back
to police. What can you say about this?
A. I can confirm the statements made by Dr. Mettgenberg to their
fullest extent and only have to make a few supplementary remarks. As
Mettgenberg already testified, in the discussions at the OKW, which
took place in the beginning of September 1944, the witness Hecker and
I represented the Ministry of Justice. Since the matter could not be
reported to Minister Thierack in advance, my department chief, Vollmer,
had given me the instruction to reserve the right for the Minister to
state his opinion. I acted accordingly during the negotiations. The
representatives of the OKW then also agreed that the OKW would forward
a draft of the intended order of the OKW to the Ministry of Justice and
that the Ministry of Justice could then state its opinion on the draft,
in writing.
In place of that the OKW then sent us an already filed decree which
ordered the discontinuance of the NN procedures and the transfer of
NN prisoners to the police. When I reported this to Mettgenberg and
together with him to Vollmer, he was very much displeased about the
manner of handling used by the armed forces. Vollmer said the OKW
had byplayed us in that manner, and he instructed me to talk to the
representative of the OKW by telephone and protest against this manner
of conducting this business. He said the decisive thing, however, was
that the regulation made by the OKW had to be accepted according to the
division of business, as the OKW was competent for NN cases.
In accordance with the instructions given by Vollmer, I then telephoned
the representative of the OKW and expressed our surprise at the
manner of handling this. The representative replied that this was a
misunderstanding and he regretted it very much; in any case I can
testify that on the part of Department IV of the Ministry of Justice,
no agreement for these regulations was given, but that Department IV
only through force submitted to the regulation which was made without
its agreement.
Q. The meeting in the building in the Reich Military Supreme Court
in the beginning of September 1944 was presided over by Dr. Werner
Huelle and at that time he was supreme judge. I submit an affidavit by
Dr. Huelle that was taken on 17 July 1947.[479] Following the usual
introduction formula, it reads as follows:
“By order of the chief of the legal department of the Wehrmacht
I presided over the discussion in the beginning of September
1944 in the building of the Reich Military Supreme Court in
Berlin. In this meeting the question of the transfer of the NN
prisoners was dealt with. The basis of this discussion was a
Fuehrer order, which had ordered the return of the NN prisoners
to the police.
“The representative of the RSHA insisted on the giving back of
the prisoners who had already been sentenced, since the will of
the Fuehrer referred also to those and by saying so he referred
to a classification which Himmler had written about to Hitler.
“Although in view of this the discussion could have only the
value of a technical discussion. I consider it absolutely
possible that the referents of the Reich Ministry of Justice
reserve to themselves the right of obtaining the opinion
of their minister since they had not received instructions
from him. More exact statements I can no longer make from
memory. In what manner and by whom my office then received a
statement by the Ministry of Justice, I do not know since I
was not the Referent. With absolute certainty, however, I can
say that only the transfer to the police for the purpose of
commitment for labor for urgent armament work was considered
for which the manpower of the prisoners was needed. My
superior, Generaloberstabsrichter Dr. Lehmann, who himself
had formerly been a member of the Ministry of Justice, always
attached importance to relations without frictions with the
administration of justice, and therefore, he had the questions
which interested both offices discussed in common.”
PRESIDING JUDGE BRAND: Will you tell me the author of that
affidavit? I did not catch the name.
DR. KUBUSCHOK: Huelle. I submit this affidavit and ask to
reserve the number, von Ammon Exhibit No. 2, for this affidavit.
* * * * * * *
DR. KUBUSCHOK: From the documents submitted by the
prosecution, it is apparent that keeping NN prisoners incommunicado was
one of the main peculiarities of the NN procedure which was applied
from the very beginning. In the opening statement by the prosecution,
among others you too are being charged with having systematically
carried out and approved these regulations about keeping the procedure
secret. In this connection, Exhibit 319[480] is of interest. It
contains a circular decree by the Reich Minister of Justice in which
several directives are given as to how agencies of the Ministry of
Justice are to handle NN cases in order not to endanger the cutting
off of NN prisoners from the outside world. What can you say about the
origin of this circular decree?
DEFENDANT VON AMMON: The circular decree was caused by
reports of the Chief Public Prosecutors in Cologne and Essen, about
the difficulties resulting from the strict regulations about keeping
the NN prisoners incommunicado, especially when NN prisoners died, and
they had made suggestions for overcoming these difficulties. The report
of the Chief Public Prosecutor in Cologne is contained in Exhibit
314.[481] In this report the decisive questions are dealt with under
paragraph [II and] III. The report of the Chief Public Prosecutor in
Essen was not submitted in this trial here.
PRESIDING JUDGE BRAND: The morning recess--15 minutes.
DR. KUBUSCHOK: Before the recess, you answered the question
as to the origin of the circular decree which we discussed. Please
continue.
DEFENDANT VON AMMON: The circular decree, Exhibit 319, which
took issue with the questions raised in the reports from the senior
public prosecutor at Cologne and Essen was, as Mr. Mettgenberg has
already stated here, the joint work of both Departments III and IV of
the Ministry of Justice. I participated in the work on that particular
decree, insofar as the competence of my department was affected by
drafting the provisions contained in it. Various questions that were
settled in that circular decree did not affect the competence of
Department IV at all. Thus, for example, the question of burials of
NN prisoners who died a natural death while serving their sentences
and the question of the possessions they left behind was a matter
for Department V to deal with. To that extent only Department V was
responsible for the provisions which had been worked out. Apart from my
section, there were other sections, partly in Department IV and partly
in other departments which were competent. The questions which emerged
therefore had to be dealt with by these various sections cooperating.
Q. What are your comments about the contents of the circular decree in
general?
A. By that circular decree the existing provisions concerning secrecy
were not made more severe in any way. The stringent provisions
concerning the seclusion of the NN prisoners from the outside world
had applied since the NN decree as such had been issued. As far as we
were concerned it was a shock from the very beginning that in the case
of the death of an NN prisoner, the relatives could not be informed.
That was true in the case of a natural death, as well as in the case
of a death sentence being carried out. We, naturally, were aware of
the severity of such a provision, but we did not see any possibility
of avoiding it, but as far as that was possible within the scope of
the severe provisions we wished to take into account the principles
of humanity. We did want to make sure that persons who had been
sentenced to death would have spiritual care. We did wish to afford
them a possibility not only to leave a holographic will but also to
make a real testament before a notary or judge. We also wished that
NN prisoners who had died should have a proper funeral. That was the
purpose of the provisions in the circular decree of 6 March 1943.
Q. Please comment on the more important details of that circular decree?
A. The provisions under paragraphs 1, 3, and 5 of the circular decree,
I believe speak for themselves. Concerning the other provisions I
would like to say this. Paragraph 4 said that farewell letters by
NN prisoners were not to be sent out. That was not a new provision
but that was the unavoidable consequence of the NN decree, since the
general administration of justice had to deal with NN cases. As early
as the first day when the NN provisions had come into force, the
Department V, the administration of punishment, had issued a provision
to the effect that NN prisoners were not allowed any correspondence.
The farewell letters of prisoners who had been sentenced to death
also came under that provision. Paragraph 4 of the circular decree
furthermore reads that the farewell letters from NN prisoners were to
be kept in custody for the time being by the prosecution. It was to be
made sure that the farewell letters, when the NN provisions would be
rescinded, that is to say, at the latest at the end of the war, would
be passed on to the relatives. Paragraph 6 of the circular decree laid
down that the relatives were not allowed to receive information about
the death of NN prisoners. That was a repetition of the old provision
which had existed since the NN decree as such had been issued. It was
an unavoidable consequence of the NN decree as such. Paragraph 7 of
the circular decree laid down that the dead bodies of NN prisoners
who had been executed or who had died from other causes were to be
turned over to the Gestapo for their funeral. That provision is not
new and is not peculiar to the cases of NN prisoners. That is obvious
from Document NG-257, Prosecution Exhibit 322. That document contains
the reply from Thierack to the complaint by the chief of the Security
Police, that this opinion had not been obtained before paragraph 7 of
the circular decree was issued. Thierack’s reply points out that that
provision did not provide new tasks for the Gestapo. That the Gestapo
was to carry out the funeral, that in itself was not of a dishonorable
nature, but funerals in cases where the relatives could not take care
of them, that in Germany is one of the duties of the police. Whereas,
under the general regulations in such cases the corpse is offered to an
anatomical institute for research purposes, an exception was made in
the case of NN prisoners, and the corpse was buried. As the provision
shows, we, of course, ordered that every NN prisoner receive a grave of
his own which was not identified by his name, but figures or something
of that nature.
Finally, paragraph 8 of the circular decree laid down that the
possessions which NN prisoners had left behind were not to be handed
over to the relatives. That also was the necessary result of the
provisions which dealt with the seclusion of the NN prisoners from
the outside world. On the other hand, we ordered that the possessions
which the NN prisoners had left behind were to be taken in custody by
the NN prisons and once toward the end of the war, a general public
prosecutor--concerning the watches and other articles left behind by NN
prisoners, wanted to make his own regulations. Naturally, I repudiated
that view.
Q. In its opening statement the prosecution said this: If the armed
forces in the occupied territories arrested the people by mistake, who
quite evidently had not been guilty of any form of resistance against
national socialism, then those victims, for the sake of keeping the
program secret, had to be treated in the same manner in which other
persons were treated who succeeded in getting away with a prison
sentence. Is that correct?
A. That assertion by the prosecution is not correct. First of all,
I consider it out of the question that the general authorities of
the administration of justice ever had persons handed over to them
who quite evidently had not made themselves guilty of any resistance
to the occupying powers. Persons who had been arrested were not
moved into Germany immediately after their arrest, but to begin with
investigations were carried out inside the occupied territories and
in particular the defendant was interrogated. In the course of those
investigations obvious errors were soon discovered, and in that case
the person concerned was not moved to Germany but was set at liberty
in the occupied territories. May I refer to the testimony by the
witness Lehmann?[482] He testified that the agency of the armed forces
in the occupied territories had issued provisions which were to make
sure that as far as possible only such matters were handed over to the
general administration of justice which were clear cases on account of
the evidence that had been obtained. If it did happen after all that
a person who was obviously innocent was taken into Germany--I cannot
remember that such a case ever occurred--there was the possibility to
transfer him to the occupied territories. In this respect, I refer
to Documents NG-226, Prosecution Exhibit 313 and NG-205, Prosecution
Exhibit 328.
Q. According to the indictment one of the purposes of the NN
proceedings is supposed to make it impossible for the NN prisoners to
have access to a defense counsel. What do you have to say about this?
A. First of all, the same is true here that was true of the limitation
of evidence obtained abroad. Certain limitations of the defense
which had been ordered for NN proceedings were not the purpose of NN
proceedings, but a consequence which resulted of necessity from the
particular manner of these proceedings and from the wartime conditions.
We must distinguish between two different limitations of defense. First
of all, a limitation of choosing a counsel; and, secondly, limitation
of having counsel appointed by the court.
Q. Please comment first about the limitation of the free choice of
defense counsel.
A. In respect to the seclusion of the NN prisoners from the outside
world, which had been ordered, the executive office of the Ministry of
Justice, in carrying out the NN decree from the beginning believed that
a limitation of the free choice of defense counsel was necessary, but
they believed that the provisions in paragraph 3 of the circular decree
of 6 February 1942 would be sufficient.
Q. That circular decree of the 6 February 1942 is contained in Exhibit
308.[483] I quote the provision concerned: “The choice of a defense
counsel requires the consent of the presiding judge who can only give
such consent with the agreement of the public prosecutor. The consent
may be withdrawn.” Please continue.
A. In the subsequent time, however, we found those provisions not to
be sufficient, in order to guarantee the secrecy of the proceedings
which after all had been ordered. As the decisive document on the
subject is available to the Tribunal I can be brief. I am referring
to Exhibit 314.[484] The document contains a report by the senior
public prosecutor at Cologne, dated 15 October 1942. In that report
he states at length that, so as not to endanger the secrecy of the
NN proceedings, he had doubts about consenting to allowing a defense
counsel to be chosen freely.
Similar reports, as far as I recollect, were received from other senior
public prosecutors as well. The document also shows that at the Reich
Ministry of Justice we only, after careful examination, decided on
further limiting the free selection of defense counsel. From marginal
notes which, however, can only be seen on the photostat of the document
and which have not been entered in the document books, the following
is to be seen. The question of the free choice of a defense counsel, I
first on 22 September 1942 reported on to my subdepartment chief. In
accordance with the result of that report of 1 December 1942, I then
discussed the matter with the expert of the OKW over the telephone. He
first of all reserved his opinion, but on 12 December 1942, he told
me that the OKW took the view that the admission of defense counsel
selected by the defendant in NN matters was not desirable.
We then contacted Department III of the Ministry of Justice, the
department of penal legislation, and when that department took the same
view as the OKW, Departments III and IV of the Ministry of Justice
issued the joint regulation of 21 December 1942, which is contained in
Document NG-255, Prosecution Exhibit 314.
* * * * * * *
Q. What about the limitations concerning the necessity of defense?
A. Originally concerning the necessary defense, a provision in
paragraph 7 of the executive order of 26 February 1942 applied,
according to which the appointment of a defense counsel required the
consent of the public prosecutor. May I point out that the following
wording of the executive order of 6 February 1942 has not been
submitted here as a document. Exhibit 306[485] merely reproduced the
draft of that executive order. The provision concerning the necessary
defense was issued immediately before the executive decree was issued,
and it is therefore not contained in the draft which we have before us
here. In the subsequent period opinions were voiced according to which
further limitation of defense was considered necessary. The prosecution
has submitted Exhibit 317.[486] Although that document unfortunately
is very incomplete, it does show that at the Special Court at Essen
there had been difficulties in appointing defense counsel as frequently
several defendants were dealt with in one proceeding and, on account of
the collision of interests, a defense counsel had to be appointed for
each defendant.
It is obvious that, in view of having to maintain the work of the court
in general, the simultaneous employment of a large number of defense
counsel was not desirable. Insofar, the desire of limiting the defense
by appointed defense counsel was understandable.
If the report from the presiding judge of the Special Court at Essen
points out that the interests of the defendants did not justify so
much strain placed on manpower and material, I would point out in this
connection that not one of the persons who dealt with the subject at
the Reich Ministry of Justice shared that view.
The matter itself was then dealt with at Department III and not in
our Department IV, because it concerned a proposed change of a legal
regulation. The Referent of Department III then informed me of these
events and made a suggestion of his own which unfortunately is not
contained in this document.
I then reported the matter to Mr. Mettgenberg and together with him
to Mr. Vollmer. The result of that report can be seen from the note
made on 1 February 1943 which is initialed by Vollmer and which also
bears Mettgenberg’s and my initials.[487] That note provides for
certain limitations of defense counsel appointed by the courts, but the
document does not show the wording of the decree as it was actually
issued later on.
What I remember is that after that decree had been issued, the
limitation of defense counsel, appointed by the courts, applied
neither to proceedings before the People’s Court nor did it apply
to those proceedings where the death sentence could be expected.
How insignificant the practical effect of this limitation of the
appointment of defense counsels by the courts was is revealed by the
position which defense counsel hold under German code of procedure,
a position which has been discussed here repeatedly. For the rest,
according to my observations, the Special Courts in practice almost
always appointed defense counsel.
* * * * * * *
Q. Please state some details about the practice followed by the courts.
A. In the final result, and that is still my conviction today,
the jurisdiction of the general courts in NN cases was absolutely
adequate. This applies to the matter seen as a whole. It applies to the
jurisdiction of the People’s Court and especially to the jurisdiction
of the Special Courts. In the case of the Special Courts you will see
that few death sentences were pronounced whereas the People’s Court
in a large percentage of cases pronounced death sentences. However,
the percentage of death sentences is not as high as I assumed in my
affidavit of 17 December 1946. That is Exhibit 337.[488] In this
affidavit I stated--purely off hand, I would like to say--that the
majority, that is, more than fifty percent of those indicted before
the People’s Court were sentenced to death. I made that statement at
the time to the best of my knowledge. However, I did not have any
documents of any kind at my disposal, and I had to rely on my memory
alone. Today, after I take into consideration the statistical material
which the prosecution has submitted, I would assume that about fifty
percent of the NN cases sentenced by the People’s Court were sentenced
to death. The death sentences which the People’s Court passed were, I
think, justified; and I can even say from an international point of
view, the death sentence was appropriate. They were cases of espionage,
guerilla activities, serious cases of aiding and abetting the enemy,
as well as the support of enemy parachutists, etc. About the offenses
which were the basis for sentences for the People’s Court, the witness
Walter Roemer[489] also testified here in this Court. I refer to the
testimony of 24 April by this witness. I can also refer to what the
defendant Lautz[490] said here on the witness stand. After examining
the statistical material, I have to correct another sentence from my
affidavit of 17 December 1946. In that case I stated that aiding and
abetting the enemy always practically resulted in a death sentence
before the People’s Court. After careful consideration, however, I have
no reason for expressing the opinion that the number of death sentences
was larger in the case of aiding and abetting the enemy than in the
case of espionage and guerilla activity. Here, too, I assume that the
death sentence amounted to fifty percent.
Characteristic sentences in these courts were those pronounced for
illegal possession of arms. I have already mentioned that in the decree
issued by the military commander in normal cases the death sentence
was provided and only in lighter cases a prison sentence. In fact,
only very few death sentences were pronounced because of the illegal
possession of arms. These cases were special cases, as for instance
possession of an entire ammunition depot. In an overwhelming majority
of cases--and I want to state that illegal possession of arms as far
as the number of cases played an important role--only prison sentences
were pronounced for the illegal possession of arms. The action by
the president of the district court of appeals of Katowice who in
the discussion at Oppeln instigated a more severe punishment because
of possession of arms was at that time generally rejected. In the
few cases in which because of illegal possession of arms, the death
sentence was pronounced, almost without exception the execution of the
death sentence was avoided by clemency pleas.
* * * * * * *
DR. KUBUSCHOK: I now come to the clemency proceedings of the
Reich Ministry of Justice in death sentences pronounced for NN cases.
Please comment on this.
DEFENDANT VON AMMON: The clemency procedure in NN cases was in
principle the same as in the case of other death sentences. However,
there were some peculiarities. One of these was that the Gauleiter did
not participate in the clemency proceedings, because the crime had
been committed in occupied territory and not within the sphere of a
Gauleiter.
A further peculiarity consisted in the fact that Hitler, as I already
mentioned before, reserved to himself the right to make the clemency
decision in death sentences pronounced against women from the Occupied
Western Territories.
Finally, I should like to point out that in NN cases, because of
the lack of the possibility of a deterrent, there was no so-called
“lightning” [Blitz] executions. The practice in regard to clemency
questions followed by Thierack was, as has been discussed here
frequently, severe. It was not easy for a Referent to succeed in
getting clemency granted by him. Nevertheless, I succeeded in doing so
in a number of cases.
However, when I made the attempt to bring about the granting of a
clemency plea in several cases, I became subject to the scorn of
Thierack who made derogatory remarks about the obstinacy which I
applied.
Q. The NN regulations in the execution of which you had to
cooperate--did you have any misgivings about them?
A. In the application of the NN regulations I was, of course,
conscious of their severity. I considered especially severe the strict
regulations about the seclusion of NN prisoners from the outside world
which made any correspondence of the NN prisoners with their relatives
impossible. Furthermore, I considered very severe the regulations
which provided that on principle also those NN prisoners, to whom
no offense or at least no serious offense could be proved, should
remain in custody. That I considered very severe. But I kept to the
statements that were made when these regulations were issued, that
these regulations were necessary in order to suppress the increasing
resistance movement in the occupied territories.
The regulations issued seemed to me to be still better than--and this
would have been possible in the case of offenses against the occupying
forces in the occupied territories--indiscriminate death sentences.
As the witness Lehmann testified here, the seclusion of NN prisoners
from the outside world was, so to say, the price to be paid for the
possibility of greater leniency in sentencing. Under this point of
view it seemed to me to be acceptable. That very strong resistance
movements existed in the occupied territories, which in a certain sense
could be considered as a second illegal army and influence the military
situation considerably, is an historical fact.
Q. Did you have an opportunity to give up your NN section and to take
over another section?
A. As I already stated in the affidavit of 17 December 1946 which I
quoted repeatedly, I did not like dealing with NN cases. Whether a
person likes his special professional field is, on the whole, dependent
on his inner attitude. In any case, I can say about myself that the
activity in a section in which of necessity, severity, and above all,
death sentences appeared, was not to my liking, especially since people
were concerned who as such were not criminals and who could not be
denied a human understanding.
For that reason, in the summer of 1944, I made the attempt to swap my
section with another section in the personnel division of the Ministry
of Justice. At that time it was intended to promote Ministerial
Counselor Wittland who was a member of the personnel division. In that
case he would have left the Ministry of Justice. The section comprised
organization of the courts and civil service law.
At that time I requested to receive this section when Wittland would
leave. From August 1944 until January 1945, I used part of my time
in order to get acquainted with the personnel department. However,
the Party Chancellery then objected to Wittland’s promotion, and,
therefore, it did not take place; and I had to remain in my former
section.
Q. Did you regard the NN regulations as being within the framework of
international law?
A. In answering that question, I have to make a clear distinction.
The NN decree was signed by Keitel on order of Hitler. The executive
regulations for the NN decree were issued, first of all, by the OKW
and for the sphere of the Ministry of Justice, by the Ministry of
Justice. The basic executive regulations of the Ministry of Justice
in regard to the NN decree were not worked out by me as Referent nor
in my department at all. Apart from the leadership of the Ministry,
the penal legislation department, Department III, was competent for
this. Department IV and I as Referent were in a certain sense merely
executive organs in the application of the existing legal regulations.
The examination as to whether the NN decree and the basic executive
regulations were in accordance with international law was therefore up
to the people who were competent for the issuance of the decree and
working on the drafting of the regulations. But the executive organ
neither has the duty nor the right for review as has been discussed
here frequently.
Of course, as a jurist, I thought about these questions and can say
that crimes of that nature as were prosecuted as NN cases can be
punished with the most severe penalty according to international law,
and that penalties of that kind are also usually applied by all states
as is obvious, I believe; that courts martial which otherwise would
have tried such cases in the occupied territory, were replaced by civil
courts in the home country, is also not contrary to international law.
And now, as to the limiting regulations of the NN procedure, the
essential factor was that a just decision by the court was not
prevented by them. In the statements I have made so far, I have pointed
out that the limiting regulations of the NN procedure did not exert a
negative influence for the defendant in the proceeding.
Keeping the prisoners incommunicado had been ordered by the Fuehrer
order and by the military authorities. The question of military
necessity was not subject to review by us. International law puts these
military interests above the personal interests of the inhabitants of
the occupied territories.
From all these considerations I did not see that the NN regulations
were contrary to international law.
Q. Since the prosecution has submitted documents about the conditions
in concentration camps against all defendants who continued working in
the Ministry of Justice after 1942, I have to ask you too what you knew
about occurrences in concentration camps.
A. My various official positions could not afford me any knowledge
about such events. Even at the time when members of the SS did not yet
have their independent jurisdiction, when reports about these excesses
in concentration camps could thus still reach the Ministry of Justice,
my section was not affected by this, and this was entirely regardless
of the fact that these reports only provided knowledge of a very small
section of actual conditions.
In conversations, too, within the Ministry I heard very little about
these matters, probably because they were treated as secret, and I was
not in a special confidential relationship with the Referenten who
were working on these matters. For those reasons, for example, the
occurrences in the Kemna and Hohenstein camps being known to me only
here during this trial. I myself never visited a concentration camp.
As far as private knowledge is concerned, I considered being kept in
the concentration camp, of course, as something unpleasant, especially
since the camps were cut off from the outside world, the uncertainty
of the period of detention, the lack of orderly legal recourse.
That abuses might have occurred for those reasons I assumed without
knowing anything definite about it. I did not have acquaintances who
had been in a concentration camp and from whom I might have found out
some definite details. Although I had quite good relationships with
Protestant church circles, for example, I did not even know, did not
gain any definite knowledge about Niemoeller’s[491] being kept in a
concentration camp. About systematic killings and mass exterminations I
heard only after the surrender.
* * * * * * *
_CROSS-EXAMINATION_
MR. WOOLEYHAN: Mr. von Ammon, last Friday you stated with
regard to your relationship with the Nazi Party that you were a victim
of Nazi propaganda and that you were not an enthusiastic Party member
for ideological reasons. Weren’t you omitting some very important
events in your political career?
DEFENDANT VON AMMON: First of all, I believe that I did not
express myself in that cross manner, that I described myself as a
victim of Nazi propaganda. I only stated that under the influence of
Nazi propaganda I saw many a thing in a more favorable light than it
actually was, and that I was not an enthusiastic National Socialist,
because from my ideological point of view, much kept me apart from the
Party. I am not aware of the fact that I left out anything important
when making such a statement.
Q. Then you don’t consider it important, noteworthy enough to remember,
that on 9 November 1923 you actively participated with Hitler and
others in the famous Munich Putsch; why don’t you remember that, Dr.
von Ammon?
A. Of course, I remember that, but it is not correct that I left these
events out, rather I stated that as a high school student as well as
a college student I belonged to patriotic youth organizations and to
Nationalists’ associations. Among these Nationalists’ associations
also belonged the Bund Oberland, which actually, as you indicated,
participated in the so-called Hitler Putsch of 9 November 1923.
Q. As a result of that Putsch in which you participated, wasn’t Hitler
tried and imprisoned for high treason, for trying to overthrow the
German Republic by force?
A. Yes.
Q. Were you tried, Dr. von Ammon?
A. No.
Q. Why not?
A. Because my participation in the Hitler Putsch was so insignificant.
By the way, my participation wasn’t at that time even found out by
the authorities, as was the case with the great majority of those who
participated.
Q. If your participation and membership in the Nazi activity at that
time had become known, you would have lost your job in the government,
wouldn’t you, or did you have a job at that time?
A. No, certainly not. First, I was still a college student at that
time, as I stated before, and also I do not believe I would have lost
my job. Many participants that is, many civil servants who participated
at least, if they took part in a subordinate role such as I were not in
any way affected in their positions. Moreover, I would like to state at
that time it was not a Nazi activity within the meaning of that phrase,
the Bund Oberland was not a National Socialist organization. It was a
patriotic, self-protective organization, which in the years after the
First World War in the fight against the attempted Communist uprising
and in the fight against the Polish uprising in Upper Silesia in 1921,
without a doubt had gained its merits. To be sure, I participated in
the Hitler Putsch at that time, but at that time the fronts were not
so well delineated as yet that the actual Putsch could be described as
unequivocal Nazi action.
Q. If that is so, Dr. von Ammon, apparently officials in the Ministry
of Justice were not aware of it really, because as I read your official
personnel files here which came from the Ministry, and which I am sure
you have seen many times with respect to your membership in the early
political associations, you are credited with having participated, and
I am quoting, “in the Nazi uprising in Munich on 9 November 1923.”
Now, in later years, Dr. von Ammon, did the Nazi Party ever give you
any tangible momento of that famous event of 1923?
A. First of all, in order to correct you, I would like to say that
I never saw my personnel files, as you assume, Mr. Prosecutor. I do
not know at all what is written in these personnel files. As far
as the question is concerned whether I have a tangible momento of
my participation in the Hitler Putsch, I have to answer that this
momento was limited to a pass which permitted me to participate in the
festivities which took place yearly on 8 and 9 November in Munich--
Q. Ah--
A. And I may also add that I only seldom made use of this pass.
Q. What number was that card or pass?
A. Unfortunately I don’t recall.
* * * * * * *
Q. Now, Dr. von Ammon, there is just one thing further in this
custody-of-the-Gestapo business that confuses me. After the arrangement
had been made late in 1944 to transfer these Nacht und Nebel prisoners
to the Gestapo for protective custody, there has been a lot of talk
here about the fact that the court authorities finally handed these
people over to the Gestapo, at least in some measure.
What actually was involved in this handing over of Nacht und Nebel
prisoners to the Gestapo as far as the courts and the justice
administration were concerned? By handing over, what actually did
happen, so far as the courts and the Ministry are concerned? Did you
sign a release? Did you actually put them in trucks and take them to
the other side of town, or what happened?
A. Unfortunately I cannot give you that information. You have to turn
to the Referent of the department for penal administration, to the
witness Hecker,[492] who carried out those transfers.
Q. Dr. von Ammon, with respect to the winding up of the Nacht und Nebel
affairs in the Ministry in the handing over of these people to the
Gestapo, the witness Hecker in Exhibit 416[493] says that you attended
a number of the conferences during which this method was ironed out.
It’s surprising that you don’t know how it happened. How did these
people get off your hands? Was it a paper transfer, or what was it?
A. No, two ordinances of Departments IV and V were issued at that time,
and they were issued to the chief general prosecutors concerned, to
the effect that they were to transfer the prisoners to the competent
authority, the Gestapo.
* * * * * * *
Q. You mentioned that the courts in enforcing the Nacht und Nebel
program by trying Nacht und Nebel defendants, particularly the Special
Courts, had been moderate in their sentences. Now, in view of that,
I’m wondering if that is true for the reason that after the Nacht und
Nebel program was terminated by these arrangements in 1944, you wrote
a letter to the Attorney General in Munich and you told the Attorney
General in Munich that in view of the new arrangement concerning the
treatment of Nacht und Nebel prisoners in the future, namely their
transfer to the Gestapo, “There no longer will be executions of Nacht
und Nebel prisoners in any large numbers.”[494] Now, tell me, Dr. von
Ammon, if these courts were so lenient and gentle with these Nacht und
Nebel defendants, why did you see fit to mention that death sentences
weren’t going to be in any large numbers in the future? That’s the same
as saying they were large in the past, isn’t it?
A. I stressed above all that the sentences passed by the Special Courts
were moderate. It is true that the Special Courts only passed a few
death sentences. I did say, however, on the contrary that the People’s
Court did pass a large number of death sentences and even mentioned
that 50 percent of the persons indicted by the People’s Court were
sentenced to death. Those sentences which were intended to be executed
in Munich were sentences which had been passed by the People’s Court.
Q. In any event, whether it was the People’s Court or the Special
Court, after that Nacht und Nebel program was dissolved, you were of
the opinion then that large numbers of death sentences would not be
passed in the future?
A. No, actually I was of the opinion that no further death sentences
would be passed. The only thing that could still happen was that death
sentences would be executed that had been passed prior to September
1944.
Q. And from your letter, it appears that up until that time, they had
been large in number, does it not?
A. Well, that is a relative concept--that word “large.”
Q. Oh, of course.
A. I believe that in view of the long period of time--from 1942 until
the end of 1944--the number of death sentences which were actually
passed is relatively small.
Q. May it please the court, the prosecution offers as Document NG-1886,
Prosecution Exhibit 546, the letter written by defendant von Ammon
which we have just been discussing.
PRESIDING JUDGE BRAND: The exhibit is received.
* * * * * * *
_EXAMINATION BY THE TRIBUNAL_
PRESIDING JUDGE BRAND: I understood you to say that you did
not know of any innocent person who was brought to Germany under Nacht
und Nebel procedure.
DEFENDANT VON AMMON: I was referring to the assertion of the
prosecution. The prosecution had maintained that evidently innocent
persons had been treated in exactly the same manner as guilty NN
prisoners, and it was in reply to that, that I stated that evidently
innocent persons were never brought to Germany at all; that is to say,
as far as my knowledge goes. If, however, it did happen that a person
was evidently innocent and had been brought to Germany, then there was
a possibility of releasing him back to the occupied territories.
Q. I still understand you to say that you knew of no innocent person
brought under Nacht und Nebel procedure.
A. It may have happened, naturally, but--
Q. I am referring to what you said. Did I correctly understand you to
make the statement that you knew of no innocent person who was brought
to Germany under Nacht und Nebel procedure?
A. I would like to restrict that to evidently innocent persons, as
opposed to a person whose innocence only later was made clear. That
naturally happened, too, and such cases did occur and such cases were
brought to Germany.
Q. That is a very material modification of your former statement,
because you also said that considerable numbers were acquitted. I
assume that you do not consider that persons who were acquitted were
necessarily guilty; you presume them innocent if they were acquitted,
don’t you?
A. Or that the evidence was not sufficient to prove them guilty.
* * * * * * *
_REDIRECT EXAMINATION_
DR. KUBUSCHOK: In reply to a question by the prosecutor,
you spoke of your membership with the Bund Oberland, and you stated
that the Bund Oberland on 8 November [9 November] 1923 took part
in the so-called Hitler Putsch. You stated that the Bund Oberland
was an association--a so-called Nationalistic association of which
many members were college students. Did that organization Oberland
at a later time ever become incorporated in the NSDAP? Did that
nationalistic organization ever become a National Socialist unit by way
of incorporation?
DEFENDANT VON AMMON: No. After the Bund Oberland had
participated in the Hitler Putsch on 9 November, it was dissolved.
I believe that at some time later on it came back to life, but I
personally no longer took any part in it. As far as I know, it never in
any way was incorporated in the National Socialist movement.
Q. How far did you participate in the events of the night of 9 November
1923?
A. The company of the Bund Oberland to which I had been assigned was
alerted, on the evening of 8 November 1923. I was not alerted because
my name was not on the alert list. I had joined the Bund Oberland only
a little before that time. Therefore, I was only told about it on the
morning of the 9th. I then joined my company which was stationed in an
inn by the Isar, at Bogenhausen, in Munich. There I spent a few hours
with the company; then we marched off to the East. There we disbanded
and returned to Munich one by one. That was my participation in the
event of 9 November.
PRESIDING JUDGE BRAND: May I ask you--were you armed? Were you
armed at that time?
DEFENDANT VON AMMON: Yes, I had a gun.
* * * * * * *
E. High Treason and Treason, Malicious Acts, Undermining
the Military Efficiency, Public Enemies
PARTIAL TRANSLATION OF DOCUMENT NG-685
PROSECUTION EXHIBIT 259
EXTRACTS FROM A LETTER BY CHIEF PUBLIC PROSECUTOR AT HAMM TO THE
MINISTER OF JUSTICE, FOR DEFENDANT SCHLEGELBERGER, 29 JANUARY 1941,
CONCERNING TREASON, BREACH OF REGULATIONS BY FOREIGN WORKERS, CRIMINAL
PROCEEDINGS AGAINST POLISH CIVILIANS, AND APPLICABILITY OF DECREES
AGAINST PUBLIC ENEMIES AND VIOLENT CRIMINALS
The Chief Public Prosecutor
3130 a GSTA. 1.06/216
Hamm (Westphalia) 29 January 1941
Telephone: 1780-87
REGISTERED
To the Reich Minister of Justice
Attention: Under Secretary Dr. Schlegelberger
Berlin W 8
Wilhelmstrasse 65
Subject: Situation report
Enclosures: 2 copies of the report
2 printed forms
1 bulletin of the Criminal Police Office, Dortmund
_I. High Treason_
The department in charge of high treason cases is highly taxed because
of the numerous, and in part also very extensive emigrant problems.
Upon my request, the president of the court of appeal has seen to it
that the criminal senate will hold 4–5 meetings a week from now on. I
hope that in this way the majority of all cases can finally be settled
in the course of the spring.
_II. Administration of Criminal Jurisdiction for Juveniles_
* * * * * * *
_V. Breach of Work Contracts and Unauthorized Change of
Residence of Foreigners_
1. In my last situation report I already pointed out the difficulties
which are created by the criminal prosecution of foreigners, especially
Polish civilian workers, who leave their place of work and their
assigned place of residence without authorization.
The directors of the labor offices and the Reich Trustee for Labor
of the economic territory of Westphalia-Lower Rhine as a rule do not
prefer the necessary charges for criminal prosecution, in accordance
with the decree concerning the restrictions for changing the place of
work, dated 1 September 1939--Reich Law Gazette I, page 1685--and in
accordance with the decree concerning the fixing of wages, dated 25
June 1938--Reich Law Gazette I, page 691.
Upon inquiry, the Reich Trustee for Labor for the economic territory
of Westphalia-Lower Rhine has informed me that “in accordance with an
agreement between the Reich Minister for Labor and the Reich Leader SS
and Chief of the German Police, breach of work contracts by Poles are
to be punished by the Secret State Police with protective custody or
concentration camps. The meaning of this step”--so writes this Reich
trustee--“is that in the case of Poles the strictest measures are to be
taken at once in order to create a deterrent effect. For this reason
we made it a point in my office to transfer the cases involving breach
of work contract by Polish civilian workers to the Gestapo (Secret
State Police) for further action. Only in those cases where the Polish
workers involved were already under arrest on charges of vagrancy,
vagabonding, etc., and investigated, have I in those cases known to
me, preferred charges for breach of work contract, so that all the
punishable offenses of the Pole could be adjudicated in _one_
court trial.”
In one individual case, concerning a member of Protectorate, the Reich
Labor Trustee for the economic districts of Westphalia and Lower-Rhine
refrained from demanding legal action stating, as a reason, that “all
foreigners including the Czechs” were exempt from criminal action where
this question is concerned.
Contrary to the opinion of the above-named authority, the Reich
Trustee for Public Service, who had been informed of the attitude
fundamentally taken by the Reich Labor Trustee for the economic
districts of Westphalia and Lower-Rhine, has strictly upheld the
charges he had preferred against members of the Protectorate who
had broken their contracts. In the case in question, the demand for
punitive action was based upon the recommendation of the Reich Minister
for Transportation to the Reich Trustee for Public Service, dated 24
June 1940 and 13 August 1940 respectively--51.533 Pldaa. According
to a statement by the Reich Trustee of Public Service, entered into
the criminal record files, the Reich Minister of Labor stated at that
time in reply to the report of the Reich Trustee for Public Service
referring to a regulation dated 17 July 1940--III b 15062/40, that he
had no objections, if he--the Reich Trustee--should prefer charges in
accordance with the wishes of the Reich Minister of Transportation. On
the other hand the competent office of the Reich Protector thinks it
more advisable, not to punish workers from the Protectorate employed
within the Reich proper for breach of work contract or to punish them
only very mildly as otherwise great difficulties would be encountered
in the further recruitment of Czech workers from the Protectorate
for jobs in the Reich proper. At any rate, I have dealt with the
criminal procedure against workers from the Protectorate for breach
of work contract in a special report to the Protectorate also taking
up the question concerning the competence of the German courts in
the Protectorate for passing sentence in case of breach of contract,
committed in the Reich proper.
According to this there seems to be a difference of opinion within the
Reich Ministry of Labor as to the question in which cases the competent
authorities should prefer charges against foreigners who have broken
their contracts. In order to get uniform action on matters concerning
punitive regulations it seems desirable to have the Reich Minister of
Labor effect a settlement that negotiations between the Ministries
concerned and the Reich Protector will result in an agreement to
follow one standard rule in preferring charges against members of the
Protectorate.
Polish civilian workers leaving their working place _and_ their
place of residence without permission have at times--when no charges
had been preferred against them--been prosecuted and punished according
to the viewpoint of article 2 of the ordinance [VO], concerning the
treatment of foreigners of 5 September 1939--Reich Law Gazette I,
page 1667. This procedure is not without objection, because the Poles
concerned were not in the Reich proper on 6 September 1939 when this
decree took effect, and it is not known whether they had been informed
of this regulation according to article 1 of the ordinance.
_VI. Criminal Proceedings against “Zivilpolen” [Polish Civilians]_[495]
With regard to criminal proceedings against the so-called
Zivilpolen--as has been pointed out by me before--an uncertainty
has developed which can no longer be tolerated. One cause for the
uncertainty regarding criminal proceedings is found in the fact that
some matters are handled by the State police independently, and the
other is that sentences passed by the regular courts are not based
on uniform standards. It may happen that the regular court may
sentence a criminal to 2 to 3 years of imprisonment--concurrently or
separately--while the State police may pronounce the death sentence
for the same crime. In order to overcome these intolerable conditions
I have issued directives to the senior public prosecutors and to the
public prosecutors of the district and have therein called attention to
the following aspects:
Civilian Poles are under the jurisdiction of the regular courts because
no special provisions are made for them. However, it is not sufficient,
firmly to advocate this principle, but the real effect of jurisdiction
can only be secured by consequent and energetic _action_ according
to this principle, and by administering justice with the speed and
severity called for by the situation. In this way it was made possible
in the criminal case Bugajny (IIIg 23 5023/40) for the regular
jurisdiction to become effective and to do justice to the case. The
State police had decided not to hand the case over to the office of
the public prosecutor and, with the objective of having the State
police deal with the case, reported it to the Security Main Office. I
learned about this case from a newspaper report, and I asked the senior
public prosecutor to procure a legal warrant of arrest, to put the
accused into a court prison, and then through investigations of his
own to ascertain the facts of the case, and to prefer charges as soon
as possible. The Pole was thereupon condemned to death for criminal
violence and forthwith executed without intervention of the State
police.
The result obtained in this case must, however, not mislead us, and
make us forget that as a rule successful action depends on two other
conditions.
For one thing, it is necessary that the office of the public prosecutor
be notified immediately. One cannot depend on the chance that a
newspaper will report a case. It must be made sure, therefore, that the
local police will immediately report crimes committed by civilian Poles
to the office of the public prosecutor.
The other thing is the question of the measure of punishment. According
to article 1 of the GewVVO[496] the death sentence was called for in
the criminal case Bugajny. But what punishment should be given, e.g.,
for indecent assault--cases in which the State police generally also
pass the death sentence. The question is whether Zivilpolen should
on principle be judged according to article 4, VVO[497] when in the
individual case special circumstances according to article 4, VVO do
not exist.
In my opinion this question may be answered with yes, if (1) political
crimes or, (2) crimes against the body, life, or possession of a German
are involved. The term “body, life, or possession” is taken from
article 2 of the VVO and it is, therefore, to receive an accordingly
free interpretation. It would not apply, e.g., to refusal to work, and
also not to any crimes of the Zivilpolen among themselves.
The following points should lend support to--
(1) That Poles are citizens of an enemy state, whose representatives in
foreign countries are continuing to fight against Germany.
(2) That they are citizens of a nation which contrary to all
international laws has massacred 60,000 German civilians and mistreated
and plundered others.
Therefore, this is not a question simply of malicious crimes, work
sabotage, or indecent assault, etc., but crimes which due to the fact
that they were committed by Poles against the German Reich or against
a German fellow countryman considering the type of Polish warfare (see
(1) and (2) above) appear in a different light.
Of _this type_ of crime it can, in my opinion, be said that it
was committed by taking advantage of war conditions and is therefore
especially contemptible. For the Zivilpolen have only come to Germany
proper because of the war conditions (insufficient work in Poland,
lack of workers in Germany). Here they are due to the war situation
(drafting of fathers, shortage of other personnel) without sufficient
supervision, in the midst of German nationals especially women and
children, and in German factories as well as in other establishments of
great importance to the German armed forces.
The Zivilpole too is without doubt aware of all these circumstances.
These circumstances have not necessarily been the actual reasons for
this action. But often this will be the case with the stirred up Polish
national hatred.
Of course it is not quite certain whether the courts, especially those
courts which until now have punished the crimes committed by Zivilpolen
very moderately or even mildly, will agree with this legal conception
and, if the occasion arises, will pronounce the death sentence in
case of an especially serious crime. However, this question does not
seem hopeless to me, if the Ministry will exert its influence through
circulars, articles in the “Deutsche Justiz”, or in oral discussions.
I think that a special directive stressing the importance of such an
administration of justice in the interest of safeguarding a normal
course of jurisdiction, would also bring results. According to our
experience so far, it should generally be possible to avoid the
application of Article 4, VVO in cases of _Polish females_.
Acting:
[Signed] DR. HAFFNER,
Senior Public Prosecutor
[Stamp]
Certified: [Signature illegible]
Court Clerk
TRANSLATION OF DOCUMENT NG-548
PROSECUTION EXHIBIT 347
LETTER FROM DEFENDANT LAUTZ, CHIEF REICH PROSECUTOR AT THE PEOPLE’S
COURT, TO THE REICH MINISTER OF JUSTICE, 23 FEBRUARY 1942, CONCERNING
THE QUESTION OF PROSECUTING FOREIGNERS FOR TREASON AGAINST GERMANY FOR
INJURIES TO ETHNIC GERMANS ABROAD
The Chief Reich Prosecutor at the People’s Court
File No.: 3 J 85/40 secret
Berlin W 9, 23 February 1942
Bellevuestrasse 15
Telephone: 21 83 41
[Stamp] Reich Ministry of Justice
2 March 1942
To the Reich Minister of Justice in Berlin W 8
Wilhelmstrasse 65
[Handwritten] Is this matter to be taken with the attached file?
St. g 10a. No! In my opinion it belongs to Gp. 4 March [Signed]
A [von Ammon]
Subject: Application of article 91, paragraph 2, Penal Code, in
conjunction with article 2, Penal Code for the protection
of Germans with foreign citizenship
Enclosures: 3 copies of report
The Reich Leader SS and Chief of the German Police [Himmler] recently
asked me to recheck several expert opinions given in several
preliminary proceedings here, among them _criminal case 3 J 85/40,
secret, against Haupt and others_; the above-mentioned legal
question, which was not definitely decided in the judgments passed
by the 2d senate on 19 May 1938 in the _criminal case 14 J 785/37,
secret, against Krippner_; and that passed by the 3d Senate on
14 June 1938 in the _criminal case 7 J 105/37, secret, against
Zueckert_.
The expert opinion in the case against Haupt and others, contains the
following statements, in the part concerning this:
The Reich Leader SS and Chief of the German Police in the Reich
Ministry of the Interior
Berlin, 13 December 1941
S II A 4 No. 12/41 = 558 = secret
_SECRET_
To the Chief Reich Prosecutor of the People’s Court
To Chief Reich Prosecutor Dr. Barnickel--or deputy in the office
in Berlin.
Subject: Preliminary proceedings against the employee Edith,
Margarete Haupt, born in Poznan on 7 May 1918, on a
charge of treason
[Illegible Marginal Notes]
The systematic shadowing of ethnic Germans also served to obtain
reasons for persecution measures and chicaneries in the course of the
battle for suppression and extermination. The Poles carried out these
measures against the ethnic Germans in a manner which the Germans
considered to be absolutely arbitrary, contrary to international law,
and brutal (cf. for instance, Freisler, “Development of the nationality
law of ethnic German groups,” in _German Justice_, 1941, pp. 881
ff.).
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.
“For it cannot be denied, that as long as Germany was powerless
and defenseless, she had simply to tolerate the fact that there
was a continual persecution of German people on our frontiers.
But in the same way as England represents her interests over the
whole world, the Germany of today will know how to represent
and to protect her interests, even if they are more limited.
And these interests of the German people comprise also the
protection of those Germans who, of their own accord, are not
in a position to ensure for themselves along our frontiers the
right of commonly human, political, and ideological independence
* * *.” [End of quote from Hitler’s speech.]
I request, therefore, the re-examination of this question on account of
its fundamental importance in regard to legislation and to clarify its
principle--in the first place, for the jurisdiction of the Chief Reich
Prosecutor at the People’s Court--so that this question may through
indictments in the respective cases, also be decided in court. It is,
of course, not intended by these statements to anticipate the weighing
of evidence in the present case.
“* * * I induced the Foreign Office to participate in the
afore-mentioned expert opinion. The Foreign Office did not make
any particular comment on the statements concerning purely legal
matters, but has pointed out that questions in the sphere of
_foreign politics_ could not be raised, if the court in
cases such as the present, acted in accordance with article
91, paragraph 2 of the Penal Code for the above-mentioned
reasons. This comment applies firstly to such cases in which
the ethnic groups of former Poland, Lithuania, as well as the
former Czechoslovakia, and Soviet Russia are concerned. In cases
in which other countries are involved, the question would, if
necessary, have to be examined individually.” [End of Himmler’s
letter.]
The president of the People’s Court, to whom I applied for a comment
on this judicial problem, in view of the above-mentioned two different
verdicts, has stated:
“A discussion with the presidents and the deputy presidents of
the senates of the People’s Court on the legal question, whether
article 91, paragraph 2 of the Penal Code may be applied in
connection with article 2 of the Penal Code[499] in connection
with the protection of ethnic Germans of foreign nationality,
resulted in the following unanimous interpretation:
“The application is confirmed--
(1) if the wrong [Unrechtsgehalt] of the act--apart from the
requirements that all other necessary constitutive elements
[of the crime] must be present--is so serious as absolutely to
demand punishment,
(2) if the granting of equal rights to an ethnic German and to
a German national does not present for the state to which the
ethnic German belongs, a grave detrimental proposition from a
political point of view, which is prejudicial to its sovereignty
and to its friendly relations with the Reich,
(3) if the act is not subject to punishment from any other legal
point of view according to German penal law nor subject to
punishment according to the laws of the foreign state (article 4
of the Penal Code).”
I agree firstly with the Reich Leader SS and the President of the
People’s Court that a direct application of article 91, paragraph 2 of
the Penal Code, which obviously, expressly, and knowingly--see also
the draft of the new penal code--protects only German nationals will
not be made in favor of ethnic Germans. Furthermore, I concur with the
conception that the general political development which has meanwhile
come about, particularly during the last years, enabling the Reich
largely to protect its ethnic members of foreign nationality to a
greater extent than has been possible hitherto must be borne in mind in
this particular instance. Therefore, I find it necessary on principle
to protect by means of the German Penal Code those ethnic Germans who
have seriously suffered through action such as mentioned in article 91,
paragraph 2 of the Penal Code, provided that the action, in accordance
with sound public sentiment, deserves punishment analogous to this
provision, but where such punishment considering the wrong of the
particular case cannot be pronounced on account of any other directly
applicable penal regulation. In this connection, my standpoint--and
this agrees with Laemmle, “German Justice,” 1940, page 775, and with
the practice of the People’s Court mentioned therein--is that the act
which is punishable according to article 91, paragraph 2 of the Penal
Code must be considered as an act of high treason against the Reich
to which article 4, paragraph 3, number 2, of the Penal Code, not
article 4, paragraph 2, is applicable. Whether in other respects the
prerequisites for an appropriate application of article 91, paragraph
2, in conjunction with article 2 of the German Penal Code exist, will,
in my opinion, depend upon the examination of each individual case, in
which also questions of foreign politics will have to be taken into
consideration, although these already have been eliminated to a large
extent by the comment of the Foreign Office contained in the expert
opinion of the Reich Leader SS.
In this connection, I wish to quote, by way of example, two cases of
preliminary proceedings which have recently come to my hands, and which
concern particularly serious aspects.
In the proceedings of 3 J 304/41 _vs._ Hellig, the defendant, an
ethnic German, formerly resident in Northern Bukovina, and formerly of
Rumanian nationality, who since became a German national, repeatedly
guided, for high reward, ethnic Germans of Rumanian nationality, who
had been surprised by the Russian occupation of Northern Bukovina by
the Soviet Russians in 1940, allegedly in order to enable them to
illegally pass the frontier into Rumania, but then played them into the
hands of the Russian frontier guards.
In the proceeding 11 J 8/42 g _vs._ Golek, the defendant, a former
Polish national, of the Polish ethnic group, in the years of 1938 and
1939 in Poland handed over to the Polish authorities his friend, the
ethnic German Leo Hardt, of Polish nationality, by accusing him wrongly
of treason in favor of the Reich and by concealing in the latter’s
house a Polish army regulation book for the purpose of incriminating
him. As a result of this action of Golek, Hardt was condemned to 6
years of imprisonment for espionage in favor of Germany.
In the majority of the cases, as in the two cases cited, it will
be offenses, which have been committed by foreign nationals abroad
against ethnic Germans. To that effect I shall have to report in each
individual case especially for the purpose of reaching the decision on
initiating prosecution according to article 153a, paragraph 2, Code of
Criminal Procedure, so that the doubtful problems mentioned above will
have to be decided upon there in each case. There are cases possible,
however, in which the offender acted also or only within Germany proper
so that a report is practically unnecessary. In view of this and on
account of the fundamental importance of this problem, I believed, I
should submit it in general already at this time with the request for a
_decision_, as to whether my _interpretation is approved_.
[Signed] LAUTZ
PARTIAL TRANSLATION OF DOCUMENT NG-337
PROSECUTION EXHIBIT 186
THE LOPATA CASE, APRIL-DECEMBER 1942. EXTRACTS FROM THE OFFICIAL
FILES INCLUDING: VERDICT OF LOCAL COURT SENTENCING LOPATA, A POLE, TO
2 YEARS’ IMPRISONMENT; DECISION OF THE REICH SUPREME COURT GRANTING
NULLITY PLEA FILED BY CHIEF REICH PROSECUTOR; VERDICT OF THE NUERNBERG
SPECIAL COURT (DEFENDANT ROTHAUG PRESIDING) SENTENCING LOPATA TO DEATH;
THIERACK’S REFUSAL TO PARDON; LOPATA’S LAST PETITION FOR CLEMENCY; AND
THE RECORD OF EXECUTION OF THE DEATH SENTENCE
Ds.14/1942
In the Name of the German People
VERDICT
Local Court Neumarkt (Oberpfalz) in the criminal case against--
Lopata, Jan, Polish farmhand in Bodenhof at present under
arrest pending trial for assault, in its public session on 28
April 1942 in which took part:
1. Local Court Judge Egger
2. Public Prosecutor Durchholz, as counsel for the prosecution
3. Inspector Fuchs, as Registrar
V.R.A. 163/164/42
On the basis of the trial--Lopata, Jan, born 24 June 1916 in Kajscowka,
District Myslenice; parents: Michale and Anna Lopata, née Mosul,
single, Polish farmhand, at present in arrest pending trial, is
sentenced to an imprisonment of 2 years in a prison camp for the crime
of assault according to article 185 of the Penal Code together with a
violation according to section 1a, 7 of the Police Regulation of the
Governor in Regensburg, 28 May 1940, No. 1032 f 47; and of 23 December
1941, No. 1032 f 48, section 44a of the Police Penal Code, both in
connection with articles III and XIV of the penal decree for Poles of 4
December 1941,[500] Penal Code I, page 759, and to a fine of 35 RM--and
in default of payment an additional week in prison camp, and to the
costs for the trial and for the execution of the sentence.
FINDINGS
The accused who is a Pole and who on 1 September 1939 was resident at
Kajscowka in the district of Myslenice in Poland was employed as an
agricultural laborer by the farmer Therese Schwenzl at Bodenhof in the
parish of Muehlen. In the beginning of February 1942, Mrs. Schwenzl
together with the accused and a Polish maid were cutting chaff. The
accused stood to the right of the chaff-cutting machine. Without saying
anything he suddenly touched Mrs. Schwenzl’s genitals through her
dress. When thereupon she said: “You swine, you think nothing terrifies
me. You think you can do that to me because my husband is sick.” The
accused just laughed and repeated his action. At this Mrs. Schwenzl
slapped his face. In spite of this he did it again. Finally, he had a
quarrel with the Polish maid and did no longer molest the farmer’s wife.
On 8 February 1942, the accused left his place of employment without
permission and was arrested on 9 February 1942 when calling at the
employment exchange at Neumarkt/Oberpfalz.
The circumstances are proved by the absolutely trustworthy statement
given by the witness Mrs. Schwenzl under oath. The stubborn denial of
the accused is disproved by statements made by the witness.
In the witness Schwenzl’s description there is nothing to prove that
the accused went as far as to use force against the witness. Therefore,
this is no case of sexual crime according to article 176, paragraph
(1), Penal Code, but only a case of personal assault according to
article 185, Penal Code.
No sentence has been proposed pursuant to article 2 of the decree
concerning wages of 25 June 1938. The fact is that the accused left
his place of employment and cannot be punished under articles 2 and 8
of the ordinance, dated 5 September 1939, Reichsgesetzblatt I, page
1667, dealing with the treatment of foreigners, since it has not been
established that the accused had left the place where he stayed at
the time of a public summons in accordance with section 1 of the same
ordinance. However, articles 1a and 9 of the police decree of the
Regierungspraesident [president of local government] of Regensburg
dealing with the treatment of Polish labor should be applied.
According to this, the accused has been proved to have assaulted
another person and to have violated the police orders regarding the
treatment of Polish labor by another action. He therefore is to be
punished for personal assault according to article 185, Penal Code,
together with a violation of articles 1 and 9 of the police decree of
the Regierungspraesident of Regensburg, dated 28 May 1940 No. 1032 f.
47, supplemented by the ordinance dated 23 December 1941 No. 1032 f.
48 and dated 3 June 1941 No. 1032 f. 27 in conjunction with articles
III and XIV of the Criminal Code for Poles dated 4 December 1941,
Reichsgesetzblatt I, page 759.
* * * * * * *
Although the accused was treated well in Schwenzl’s house, he was as
lazy as he was insolent and presumptuous. The manner in which the
accused committed this act of insult to the honor of his employer [Mrs.
Schwenzl] shows an enormous degree of insolence and shamelessness
which can be found only among persons belonging to the Polish people.
The fact that the husband Schwenzl was ill in bed at the time the
crime was committed has an aggravating effect. It demonstrates the
mean and treacherous character of the accused that he did not find
it convenient to confess but denied it all stubbornly. He stubbornly
continued his denial even in the face of the sworn statements of the
witness Schwenzl. It therefore seems appropriate to sentence the
accused to 2 years’ imprisonment at a detention camp in application of
articles III and XIV of the Penal Code for Poles dated 4 December 1941,
Reichsgesetzblatt I, page 759. For the unauthorized leaving of his
place of residence the usual fine of 35 RM or 1 week of detention camp
was considered to be an appropriate punishment.
Costs--Article 465, Code of Criminal Procedure.--There is no cause to
take into account the time spent in arrest pending trial in view of the
mean conduct shown by the defendant, article 60, Penal Code.
[Signed] EGGER
No charge because of insolvency.
Neumarkt (Oberpfalz), 6 May 1942
The Registrar of the Local Court Neumarkt (Oberpfalz)
[Signed] SCHROTH
Clerk
[Decision of the Reich Supreme Court upon the nullity plea]
1 C 566/42
(I StS 26/42)
DECISION
In the criminal case against the Polish agricultural laborer, Jan
Lopata, last residence Bodenhof, in the parish of Muehlen, now at the
main camp at Maltheuren, for assault among other offenses:
The Reich Supreme Court, Penal Senate, in secret session of 14 July
1942 has decided with regard to the nullity plea of the Chief Reich
Prosecutor.[501]
The sentence of the local court at _Neumarkt_ (_Oberpfalz_)
dated 28 April 1942, Ds 14/42, is annulled with its relevant findings
in as far as the accused was sentenced for assault. In this connection
the case will be returned to the lower court, _namely to the Special
Court at Nuernberg_, for a new trial and sentence.
FINDINGS
By the afore-mentioned verdict the accused has been sentenced to 2
years at a detention camp for personal assault according to article
185, Penal Code, in conjunction with articles III and XIV of the
Criminal Code for Poles dated 4 December 1941, Reichsgesetzblatt I,
page 759. The sentence has been declared valid.
The Chief Reich Prosecutor has filed a nullity plea and has moved to
annul the sentence by decision and to return the case to the lower
instance, namely the Special Court at Nuernberg for a new trial and
sentence. The motion has been granted.
The sentence passed by the local court is defective in law insofar
as it does not discuss at all as to whether article 4 of the decree
against public enemies of 5 September 1939[502] (Reichsgesetzblatt
I, p. 1679) is applicable. That this is applicable may very well be
assumed considering the facts established. According to these facts
the possibility exists that the defendant knowingly took advantage of
the wartime conditions when committing the crime, inasmuch as he was
aided by the lack of other labor and a thereby conditioned insufficient
supervision and watching, or inasmuch as he presumed that because of
the labor shortage no charges would be preferred against him lest not
to lose a hand. In the summary of the local court as to the sentence
imposed it has been emphasized that the action of the defendant proved
an unheard of amount of impudence. This impudence, considering the
facts, could possibly be explained only by the fact that the defendant
considered himself indispensable, and therefore presumed he did not
have to reckon with the preferring of charges.
With this judicial error the judgment has become unjust since, if also
article 4 of the decree against public enemies is applicable which may
very well be assumed, a much more severe sentence is deemed necessary.
[Typed] signed: SCHULTZE
[Typed] signed: RAESTRUP
[Verdict of the Nuernberg Special Court]
COPY
Reg. f.H.V.Sg No. 433/42
_VERDICT_
In the name of the German People:
The Special Court for the district of the Nuernberg Court of Appeal at
the Nuernberg-Fuerth District Court pronounces the following sentence
in the case against Lopata, Jan, Polish agricultural worker, last place
of residence Bodenhof, on account of defamation and other offenses. The
sentence was pronounced in open session on 26 October 1942. Persons
present were--
The Presiding Judge: President of the District Court Chamber
Dr. Rothaug.
The Associate Judges: District Court Judge Dr. Ferber and
Local Court Judge Dr. Pfaff.
The Prosecutor at the Special Court: Senior Public Prosecutor
Paulus.
Chief clerk Kastner as registrar of the office.
Lopata, Jan, born on 24 June 1916 in Kajscowka, single, Polish
agricultural worker, last place of residence Bodenhof, in arrest
pending trial for this case is, by application of articles II, III,
and XIV of the decree concerning Poles and Jews, sentenced to death
for a crime under section 4 of the decree against public enemies in
connection with assault, and will have to bear the costs.
_FINDINGS_
1. The accused is a Pole; he belongs to the Polish ethnic group. He
grew up in Kajscowka as son of a farmer and cattle dealer, he attended
school for 6 years according to local custom. He can read, calculate,
and write. According to his testimony, the parents of the accused died
over 20 years ago. A brother and a sister of the accused live in the
Government General. After he left school--in 1931--the accused worked
on a farm for his aunt because his parents had died. At the age of
20--in 1937--the defendant took up work as a farm hand.
2. After reporting voluntarily, in spring of 1940, the defendant was
assigned by the labor office Neumarkt/Oberpfalz to work for the farmer
Josef Schwenzl in Bodenhof, district Neumarkt/Oberpfalz. Early February
1942--on a day which can no longer be clearly specified--the wife of
the farmer Schwenzl, together with the accused and a Polish girl were
cutting chaff in the barn. The accused was standing on the right hand
side of the machine to carry out the work. Suddenly while working, the
accused without saying anything, touched with his hand the genitals
of farmer Schwenzl’s wife through her dress. When she said after this
unexpected action of the defendant, “You swine, you think nothing
terrifies me, you think you can do that because my husband is sick,”
the accused laughed and, in spite of this admonition, again touched the
genitals of the farmer’s wife through her dress. The wife of farmer
Schwenzl slapped his face after that. In spite of this, the accused
continued with his aggressive conduct, for a third time he touched the
genitals of the farmer’s wife through her dress.
On account of that the farmer’s wife started a heated quarrel with the
accused. The accused started to quarrel with the Polish maid too, and
no longer molested the farmer’s wife.
II
The accused did not make a complete confession. He states that he only
once, for fun, touched the genitals of the farmer’s wife through her
dress.
The court is convinced, on account of the testimony given by the
witness Therese Schwenzl, who makes a trustworthy impression, that the
incident occurred exactly as described by the witness. Therefore, the
court based its findings on the testimony given by this witness.
The prohibition to have sexual intercourse with a German woman was
known to the accused, he also knew about the severe punishments laid
down for Poles who do not comply with this regulation. When the accused
was assigned a place of work by the labor office Neumarkt/Oberpfalz in
spring 1940, this regulation was pointed out to him according to the
testimony of the witness Reiser; he was also given a printed guide of
conduct for enlightenment. The statement of the accused that, in spite
of all, he had no knowledge of this regulation because when given the
instruction no interpreter was present, and because he did not peruse
the guide of conduct, proves to be a scant excuse; because when asked
why he denied having been aggressive towards the farmer’s wife in his
interrogation by the local court at Neumarkt, a fact which can be
proved on hand of the record made there on 28 April 1942, the accused
says that he did not want to confess, not even partially, fearing that
the death sentence would be pronounced.
Thus, the defendant gives the impression of a definitely degenerate
personality who is distinguished by irritability and a positive
propensity to lying; all his inferiority is based on his character
and the reason can obviously be found in his belonging to the Polish
subhuman race.
III
The established facts show first of all that the defendant grossly
assaulted the honor of farmer Schwenzl’s wife by his frequently
touching her genitals. The defendant fully realized the despicable
nature of his mean and base aggressive conduct. He thereby committed
the offense of personal assault--article 185, Penal Code, 13 March
1942. The insulted person preferred charges in writing on account of
the personal assault.
This, however, does not cover the full extent of the defendant’s crime.
The drafting of men into the armed forces effected a serious labor
shortage in all spheres of life at home, last but not least in
agriculture. To balance this, Polish laborers, among others, had to
be used to a large extent in the Reich, mainly as farm hands. These
men cannot be supervised by the authorities to such an extent as their
insubordinate and criminal disposition would necessitate. Since there
is a lack of the necessary supervision, these Poles are becoming
impudent and insubordinate. At the same time, they know that they can
indulge in all manner of activities, because we have to depend on them,
and because it is difficult to find replacements.
The defendant has lived in the greater German domestic sphere for a
sufficient length of time to know about these circumstances caused by
the war as he saw them daily with his own eyes.
From the very beginning of his employment with Schwenzl the defendant
was a lazy and stubborn fellow. Frequently he refused to work; when
once in the morning in the presence of the Pole, farmer Schwenzl’s
wife made a casual remark to her husband to the effect that someone
would have to beat her to death if she had to eat as much as the
“Polak” did, the defendant at noontime refused to take his midday meal.
He also induced the Polish servant maid to offer the same passive
resistance. Farmer Schwenzl did not permit the defendant to act like
that, he called the Pole to account in the stable. The defendant put up
resistance toward his admonitions by arming himself with a pitchfork.
In the hallway of the farm, farmer Schwenzl continued his admonitions.
The impudence and disobedience of the defendant is shown in all its
impressiveness by the fact mentioned by the witness Schwenzl, that the
Pole at the threshold of the farm hallway turned against the farmer
again and only let him go when the sheep dog which they kept on the
farm attacked the defendant from the back.
As proved by the defendant’s behavior as a whole, he took advantage of
the circumstances caused by the war also in the crime under discussion.
Being a Pole who had been given the opportunity to earn a fair wage
in the Reich, he acted in the basest conceivable way. His crime as
well as all the rest of his impudent behavior classify him as a public
enemy. The German population which today is especially sensitive toward
such attacks and needs--according to the sound public sentiment--an
increased protection against such foreign elements by sentences beyond
the customary penal code.
Accordingly, the defendant was to be sentenced in connection with
personal assault also a crime under section 4 of the decree against
public enemies of 5 September 1939.
IV
The defendant is a Polish national in the meaning of the Ordinance on
Legal Procedure against Poles and Jews in the Incorporated Eastern
Territories of 4 December 1941. On 1 September 1939 he was living on
former Polish territory; therefore punishment has to be pronounced
according to article III of the ordinance mentioned above, of articles
II and XIV in other instances.
The action of the defendant means a considerable violation of the peace
to the persons immediately concerned by his base actions. The rural
population is right in expecting most severe measures against such
terrorization by foreign elements. But beyond disregarding the honor of
farmer Schwenzl’s wife, the attack of the defendant is directed against
the purity of the German blood. Looked at from this point of view, the
defendant showed such a great deal of insubordination living in the
German domestic sphere that his action has to be considered especially
grave. Anyone who is acting like the defendant commits an outrage
against the defensive power of the German people in the emergency of
war. Wartime demands an essentially increased protection of the home
country against the dangers of war.
Accordingly, as outlined in article III, paragraph 2, second sentence
of the ordinance concerning Poles and Jews, the crime of the defendant
which, compared with his other conduct, shows a climax of unspeakable
impudence, has to be considered as especially serious. Thus, the death
sentence had to be passed as the only just punishment which is also
necessary in the interest of the Reich security to deter Poles with a
similar attitude.
Decision as to the costs--article 465 Criminal Code of Procedure.
[Typed] signed DR. FERBER
[Typed] signed ROTHAUG
[Amtsgerichtsrat] AGR. Dr. Pfaff was not in town on account of official
business.
[Typed] signed ROTHAUG
Certified.
Nuernberg, 29 October 1942
The registrar of the Office of the Special Court for the District of
the Nuernberg Court of Appeal at the Nuernberg-Fuerth District Court.
[Signature illegible]
Clerk
[Stamp]
District Court
Nuernberg-Fuerth
[Refusal of pardon by the Reich Minister of Justice]
Certified true copy
In the criminal case against Jan Lopata, sentenced to death by the
Special Court with the Nuernberg-Fuerth District Court on 26 October
1942 as a public enemy according to the ordinance concerning penal
law applying to Poles, I decided after having been authorized by the
Fuehrer not to make use of the right of pardon, but to let justice take
its free course.
Berlin, 19 November 1942
The Reich Minister of Justice
(Seal) [Typed] signed: DR. THIERACK
[Stamp]
Reich Ministry of Justice
Ministerial Chancellery
This is to testify that the text corresponds with the original.
Berlin, 22 November 1942
[Signed] PETERSEN
Senior Secretary of the Ministerial Chancellery
IV g-11-2417.42
[Petition for Clemency]
[Handwritten marginal note] Special Court Nuernberg. Sentence:
26 November 1942.
[Handwritten] Translation from the Polish language of a petition
for clemency.
Stanislaus Bieniasz
Jan Lopata, born on 24 June 1916 in Kajscowka, district of Myslenice.
Petition for Clemency
In 1940, I stayed in Germany as an agricultural worker with the farmer
Josef Schwenzl at Bodenhof, where I had my residence together with
Angelike Murzyn until 1942. Later on, on Sunday 7 February, I went to
another farmer whose name was Josef, I do not know his surname, but
I know where he lives. He urged me continuously to come to him, and
I went to see him on Sunday 7 February. On Monday 8 February, I went
to the regional labor office together with the farmer’s wife and from
there the policeman took me along to prison, for what reasons, I do
not know. Maybe on the grounds that for 2 years I worked hard and well
at the farmer’s; the Lord can see that from heaven how they treated
me and such things. The Polish woman is my very best witness, because
she has been working together with me and she knows everything, how
the farmer beat me in the beginning, and how he did not want to pay
me. The testimony given by the farmer’s wife during the proceedings
is not absolutely true. She has not told what they had hidden in the
corn on the second floor of the barn. Neither did she tell that they
slaughtered a pig for New Year’s day. At that time they chased us out
of the house, and we were supposed to go to Peihof? [sic] and have a
glass of beer together with the Polish woman. I immediately refused
to do that, and that is the reason why they urged us and said that
they would also go and have a glass of beer and that we should not
return home too early at least not before 8 o’clock. They themselves
would not return so early either, at any rate not before late in the
evening. When we then came back later--the sun had already set--they
were already at home. I was just about to enter the room in order to
cut a few slices of bread for myself, as I always did. When I came
home Sunday night, and at that time cut bread for New Year’s Eve, the
farmer was already at home and was doing something in the other room.
He called to his wife to bring him some salt. She went upstairs to get
the salt. When she came down with the salt she tried to hide it in a
way that the Polish woman should not see it. The pig had been delivered
only shortly before the New Year. On New Year’s day, in the morning,
the pig was still there and on the other day, Friday morning, that pig
was not there any longer. At the time mentioned in the evening, we were
urged to go to bed and later on, they turned on the light and arranged
something in the other room at night. The windows were screened. I do
not know why. Because I was angry I left them. The farmer’s wife said
that I did not want to get up in the morning, and that I did not want
to work. All that was seen by the Polish woman. Now I would be deeply
obliged if the death penalty could be commuted into a prison term. I
beg you very much to do that, I forward my petition to the lawyer so
that he may try to bring it about. If I had enough money, I would pay
him, but what can I do, if I have not got any? Perhaps I might beg the
defense counsel to do so without pay, and I beg him most humbly to have
this petition carried through as soon as possible.
Munich, 22 November 1942
Signed: JAN LOPATA
For the correctness of the translation:
Munich, 26 November 1942
[Signed] STANISLAUS BIENIASZ
[Report of execution of Lopata]
Sg 433/42 V.R. Sg. II 371/42
Nuernberg, 3 December 1942
The Chief Public Prosecutor
I. Report: To the Attorney General--personally or to his
official representative in Nuernberg
Subject: Execution of the death sentence against the Polish farm
worker Jan Lopata, single, last residence: Bodenhof
In addition to the ordinance of the Reich Minister of Justice, IV
g-11-2417 b/42 issued 19 November 1942
Enclosure: Original of the decree IV g-11-2417.42 of the Reich
Minister of Justice, dated 19 November 1942
The death sentence was carried out on 30 November 1942
The execution took 1 minute 10 seconds altogether. From the defendant’s
being handed over to the executioner until the falling of the axe, 7
seconds elapsed.
The execution took place without any incidents.
Please find in the enclosure the original of the decree of the Reich
Minister of Justice, dated 19 November 1942.
II. To Public Prosecutor Dr. Dorfmueller for due information and
further orders (carrying out of the sentence).
III. Information to the Chief Public Prosecutor, Munich,
according to Reich Ordinance of 21 May 1942, 4417--VIII
a-10-1003 Article 2b (2).
[Signed] HOLLMANN
Senior Public Prosecutor
[Handwritten marginal notes] I. duly noted.
II. To Attorney at law, Dorfmueller.
3 December 1942
TRANSLATION OF DOCUMENT NG-412
PROSECUTION EXHIBIT 77
REQUEST BY UNDER SECRETARY FREISLER FOR A “DRAFT ON THE RETROACTIVE
EFFECT OF THE MORE SEVERE NATIONAL SOCIALIST REGULATIONS” FOR TREASON,
18 MAY 1942; AN INTEROFFICE MEMORANDUM THEREON, AND A CIRCULAR LETTER
FROM DEFENDANT SCHLEGELBERGER TO VARIOUS REICH AUTHORITIES ATTACHING A
DRAFT OF A PROPOSED LAW AND REQUESTING APPROVAL
[Handwritten] Reich Chief Prosecutor Lautz will return from
official trip on 22 May.
To Ministerialdirektor Schaefer
I ask you to submit as soon as possible a draft on the retroactive
effect of the more severe National Socialist regulations for cases of
treason upon the earlier period. You can perhaps discuss the cause with
the Chief Reich Prosecutor on the telephone.
18 May 1942
[Initial] FR (Freisler)
[Handwritten Notes]
Urgent
Herr Rietzsch:
Please discuss this with me.
[Initial] SCH [Schaefer]
19 May
Settled.
[Initial] R [Rietzsch] 20 May
_Note_--Reich Chief Prosecutor Lautz, who could be reached only
after his return from a journey, states that _one_ case has been
discovered where a German subject from the Memel district had betrayed
to Lithuania prior to 1933 important State secrets on the organization
of the supporting operation set up by the Reich for the Memel district.
In view of the extent and importance of the State secrets which were
revealed, and betrayal was deserving of death. The disclosure of
further severe cases of treason from the time prior to the seizure of
power is to be expected.
[Signed] RIETZSCH 26 May
BY ORDER OF UNDER SECRETARY DR. FREISLER:
Berlin, 27 May 1942
The Reich Minister of Justice
III a 454.42 g
Official in charge: Ministerialrat Rietzsch
_Secret_
[Handwritten Notes] III a 891/42 g.
Immediately!
To:
1. The Chief of the High Command of the Armed Forces, III a
683/42 g.
2. The Reich Air Minister and Commander in Chief of the Air
Force.
3. Reich Marshal Goering, Plenipotentiary of the Four Year Plan,
III a 608/42 g.
4. The Reich Minister of the Interior.
5. The Reich Minister and Chief of the Reich Chancellery, III a
454/42 g.
6. The Chief of the Party Chancellery, III a 609/42 g.
7. The Foreign Office, III a 537/42 g.
[Stamp]
To the office 30
May 1942, finished
and dispatched
June
Draft of a Law to Supplement the Regulations against Treason
Dispatched: 2 June 1942
1 Enclosure
[Handwritten] to be mimeographed
I. The trial of the emigrated Jew Leo Israel Sklarek before the
People’s Court has proved anew that, in severe cases of preparation
for treason (art. 92 Reich Penal Code), there is need of instituting
the death penalty which so far is not provided for in article 92 of
the Reich Penal Code. When deliberating on the draft of the Penal
Code, the Fuehrer, during a cabinet session, had personally emphasized
the necessity of threatening even with the death penalty in cases of
preparation of treason. I, therefore, propose to supplement article 92
of the Reich Penal Code accordingly.
II. Inquiries that could be opened on the grounds of discoveries in
the occupied eastern towns have disclosed a case of treason in the
time prior to the seizure of power, when a German subject betrayed
important military secrets. The act of treason of that German subject
deserves death but cannot be punished with the death penalty according
to the hitherto valid regulations since a retroactive effect of the
law altering regulations of the Penal Code, dated 24 April 1934,[503]
Reichsgesetzblatt I, page 341, which reformed at the time, the
regulations against treason, is not provided for as yet. The disclosure
of further severe cases of treason may be expected. It is, therefore,
recommended that in the individual case, the section chiefs concerned
be authorized to order the retroactive effect of the regulations
against treason in order to arrive at the imperative severe punishment
in particularly serious cases of more remote date.
Enclosed please find the draft of a law containing the two regulations
discussed above with the request for approval.
The Acting Minister,
[Initial] SCH (Schlegelberger) 27 May
[Initial] FR (Freisler) 26 May
2. Copy to Ministerialrat Rietzsch.
3. To Ministerialdirector Schaefer after his return with the request to
note.
4. 1 month.
Dispatched: 2 June 1942
[Handwritten] Enclosure to III a 454.42 g.
Law for supplementing the regulations against treason of 1942.
The Reich Cabinet has enacted the following law which is herewith
promulgated:
Article I
Paragraph 1
Article 92 of the Reich Penal Code is supplemented by the following
concluding paragraph:
In particularly serious cases the death penalty has to be passed.
Paragraph 2
The regulation of paragraph 1 is also valid in cases of criminal acts
which were committed prior to the date this law came into effect.
Article II
The Chief of the High Command of the Armed Forces, the Reich Air
Minister and Supreme Commander of the Air Force, as well as the Reich
Minister of Justice may each order within their jurisdiction that
the penal regulations against treason (articles 88 to 93a of the
Reich Penal Code in the version of the third part of the law dated 16
September 1939, Reichsgesetzblatt I, p. 1841) should be applied also to
criminal acts which were committed prior to the date the law dated 24
April 1934, Reichsgesetzblatt I, page 341, came into effect.
Article III
The law is also valid in the Incorporated Eastern Territories.
Fuehrer Headquarters,..............1942
The Fuehrer and Reich Chancellor
The Chairman of the Ministerial Council for Reich Defense
The Reich Marshal
The Chief of the High Command of the Armed Forces
The Reich Minister of the Interior
The Acting Reich Minister of Justice
The Reich Minister and Chief of the Reich Chancellery
[Handwritten] to III a 454/42 g.
PARTIAL TRANSLATION OF DOCUMENT NG-595
PROSECUTION EXHIBIT 136
THE BRATEK CASE, 10 DECEMBER 1942–20 JULY 1943. EXTRACTS FROM THE
OFFICIAL FILES, INCLUDING GESTAPO REPORT OF 10 DECEMBER 1942; JUDGMENT
OF THE PEOPLE’S COURT AFTER TRIAL OF 20 MAY 1943; AND NOTE OF 20 JULY
1943 ON THE EXECUTION OF THE DEATH SENTENCE
Secret State Police
Office Innsbruck
File No. III B-3240/42 g.
Innsbruck, 10 December 1942
Herrengasse 1
Telephone: 1230, 1231, 2107
Long Distance: 2159
Imprisonment!
To Chief Reich Prosecutor at the People’s Court or deputy in office
Berlin W 9
Bellevuestrasse 15
[Stamp]
SECRET!
[Stamp]
The Chief Reich Prosecutor at the People’s Court
Received: 14 December 1942
Subject: Case against the Pole, Stanislaw Bratek born on 3
January 1920 in Wolbrom
Incident: Your file No. 9 J 195/42 g.
Enclosures: None
The Secret State Police Office Breslau informed me additionally about
the following details concerning the accused:
“From January 1940 to 6 September 1942 Bratek was employed as
a farm hand in Roggendorf at the State-owned farm Buchenhang.
On 13 October 1941 and on 6 September 1942, he left this place
of work without permission. In the first case, he was arrested
at the police border in Kosten on 13 October 1941, district of
Kreuzburg (Upper Silesia), and after having been warned, was
taken back to his place of work. After the second breach of
his working contract he was arrested at the station in Munich
on 8 September 1942. When being arrested B. illegally wore the
Hitler Youth badge, and was in possession of _2_ tobacco
ration cards, bearing his name, and stated that he wanted to
escape to his aunt, Stefanie Truempler, Zuerich 4, Zwinglistr.
24 (Switzerland). On 8 September 1942 he was sent to the
reformatory labor camp Munich-Moosach by the Secret State Police
Office Munich--Document No. 27311/42 II E 3/Hoe--from which he
escaped on 10 September 1942. B. has not been involved in any
activity of a criminal, political or counter-espionage nature.”
BY ORDER:
[Signed] SCHMID
SS Obersturmfuehrer
File after acknowledgment.
15 December 1942
9 J 195/42 g
1 H 90/43
In the name of the German people
In the case against the shoemaker Stanislaw Bratek of Buchenhang (Lower
Silesia), born at Wolbrom (Government General) on 3 January 1920, a
Pole, at present held in custody during judicial proceedings, charged
with preparation for high treason and other crimes, the People’s Court,
First Senate, as result of the trial, held 20 May 1943, in which took
part as judges--
People’s Court Judge Laemmle, president
District Court Judge Dr. Schlemann
S.A. Gruppenfuehrer [Major General] Haas
S.A. Gruppenfuehrer Hohm
S.A. Gruppenfuehrer Koeglmaier, as representative of the Reich
chief prosecutor
Local Court Judge Dr. Pilz
duly pronounces--
The defendant, as a Pole, ventured to aid the enemy of the Reich
by leaving his job in Lower Silesia, on 6 September 1942, to go to
Switzerland and to get in contact with the Polish Legion there. After
having been arrested first in Munich, he succeeded in escaping from an
internment camp with two other Poles and in proceeding toward the Swiss
frontier. On his way, he was arrested at Lochau (Vorarlberg).
He therefore is sentenced to _death_
The defendant, who is an ethnic Pole and who, as a former Polish
subject, had on 1 September 1939 his residence within the territory
of the former Polish republic, in November 1939 volunteered for
employment on a farm in Germany which he obtained at Metschlau (Lower
Silesia). His conduct, however, was by no means in accordance with his
voluntary enlistment. Already a few weeks later he left his working
place without permission. He was picked up and allocated for work to a
farmer in Buchenhang (district of Glogau, Lower Silesia). In October
1941, although his living was provided for by free board and lodging
and monthly wages of 30 reichsmarks, he left that job, too, without
authority. Again he was arrested and brought back to his Buchenhang
working place after having served a prison term of 3 months, pronounced
on charges of breach of the working contract, in January 1942. Instead
of, as a Pole, taking his sentence as a serious warning, the defendant
after having received certain pieces of information on Switzerland
from Poles when on leave to his home town, gradually made up his mind
to deprive Germany permanently of his capability to work, to escape to
Switzerland, and to apply there with the Polish or English consular
office for enlistment in the Polish Legion. On 6 September 1942, he
began to carry out his plan. Secretly he left Buchenhang and took a
train running toward the Swiss frontier, taking with him his savings
of 100 Reichsmarks and a Hitler Youth badge as camouflage. He was,
however, arrested in Munich on 8 September and brought to the labor
reformatory camp Moosach. On 10 September 1942, he escaped from the
camp together with two other Poles who also wanted to go to Switzerland
and continued his trip to Switzerland by going to Lindau. From there he
tried to get to the Swiss border on foot and in order would have had to
cross it illegally. On his way there he then was arrested by a customs
official in Lochau (Vorarlberg) on 12 September 1942.
The defendant admits the facts with the one proviso that his sole
motive had been to look for a job in Switzerland and that he wanted
to get in touch with some Polish people who, as he knew, lived in
Switzerland, and whose addresses he had got in his home town as being
able to get him work.
This defense cannot be given credit. The defendant held a job in
Germany and got, as a Pole, such fair wages that he was able to save
100 RM within a comparatively short period. There was therefore no
good reason why he should have given up his place of work in Germany,
in order to look for work in a foreign country, especially considering
the illegal frontier crossing which in wartime is particularly
dangerous. How little, after all, he really _did_ care for serious
work is shown clearly by the fact that he repeatedly and without
authorization left his place of work.
It must therefore have been for _other_ reasons that the defendant
considered the idea of going to Switzerland. Based upon the experience
gained by the senate in similar cases, the way which was chosen by
the defendant, in order to reach the Swiss frontier, was taken by
many other Poles escaping from their employment in Germany for the
purpose of enlisting in the Polish Legion in Switzerland. On account
of the hostile propaganda from abroad, carried on everywhere among
the Poles, it was generally known to the latter that in Switzerland,
through the Polish Consul of the Polish puppet government, or through
the British Consul, there existed an opportunity of joining the
Polish Legion, whose aim, as the court knows, is to bring about the
restoration of an independent Polish state including forced separation
of the Incorporated Eastern Territories from the Greater German Reich,
by rendering military service on the enemy side. According to the
view taken by the senate, the defendant became informed about these
circumstances while on leave in his home town. All the more so, as he
expressly admits having acquired the idea of escaping into Switzerland
from there. Furthermore, it should be added that the defendant is a
young and sturdy Pole, who was absolutely fit for military service in
the Polish Legion. Besides this, his general anti-German attitude which
is shown by his breaches of contracts is compatible with his enlistment
in the Polish Legion, hostile to Germany. Finally he makes the same
statement for his defense as has always been made by other Poles trying
to join the legion, who are arrested in the neighborhood of the Swiss
frontier. Apparently, this was recommended as a pretense by the Polish
propaganda machinery from the very beginning in cases in which escape
should fail. Taking into consideration all these circumstances, the
defendant’s escape to Switzerland leads to the only possible conclusion
that he wanted to join the Polish Legion intending to fight as a
member of the latter against the armed forces of the German Reich and
to help bring about the success of the treasonable purposes of the
Legion, which in spite of his denial and according to the view of the
senate, were known to him. He therefore may be considered as convicted
of preparation of high treason according to article 80, paragraph 1;
article 83, paragraphs 2 and 3 of the Penal Code and of undertaking to
aid the enemy from inside our country according to the provisions of
article 91b of the Penal Code.[504]
At the same time he has made himself guilty of a crime according to
article I, paragraph 3, last sentence, of the Penal Decree for Poles
of 4 December 1941.[505] Because, being a Pole, he has intentionally
inflicted damage to the interests of the German people by malevolently
leaving his important agricultural job, above all, during harvest
time in September 1942, and by escaping abroad, thus trying to rob
forever the German people of his own labor. In view of the lack of
farm workers, each single farm hand is decisive for maintaining the
food supply of the German people, and in consequence, for its staying
power in the fight for freedom. Every deduction of manpower whatever is
detrimental to the German interests in a total war. This was absolutely
clear to the defendant who admits it, too.
According to article 73, Penal Code, the penalty can be drawn from
the penal decree concerning Poles which _loc. cit._ demands
exclusively the death penalty as a rule, this being taken from the most
severe penal law applicable here.
The senate, considering the defendant’s character, could see no reason
for deviating from this threatened basic punishment, and for treating
it as a less serious case. By serving a 3 months’ prison term imposed
previously on account of breaches of contracts, the defendant had
been given sufficient warning. He was offered a last chance finally
to come to his senses and to reason by his internment in the labor
reformatory camp Moosach. All that, however, could not make the least
impression on him. On the contrary, although as a Pole he was held to
excellent conduct and unrestricted labor service in view of the blood
guilt of which the Poles before and at the outbreak had made themselves
guilty against the German people, he stubbornly stuck to his hatred
against Germany. Furthermore, beyond the fact that he deprived us of
his services, he stubbornly and without disregarding the opposing
difficulties, continued to pursue his aim of fighting against Germany
on the enemy side, and of accomplishing his attempt at high treason.
The death penalty therefore represents the only adequate measure which
does justice to the criminal action committed by the defendant, who is
dominated by his fanatical hatred against Germany, and to the security
requirements of the German people. This appears absolutely necessary in
order to create a deterrent. It has been for these very reasons that
the People’s Court passed the death sentence on the defendant.
As a condemned person, the defendant has to bear all costs of the
proceedings.
[Signed] DR. SCHLEMANN
LAEMMLE
Munich, 20 July 1943
File number: AR. VII 442/43
The Chief Reich Prosecutor Munich I
To the Reich Minister of Justice
Berlin
SECRET
through the Chief Reich Prosecutor at the People’s Court, c/o
the Local Court Judge Dr. Pilz or his representative in office
Berlin W. 9
Bellevuestrasse 15
Subject: The case against Stanislaw Bratek. Concerning decree of
1 July 1943--IV g 10a 1098/43 g--
Official in charge: Senior Prosecutor Roemer
In 2 copies--With one attachment for the Reich Minister of
Justice and 2 further enclosures for the Chief Reich Prosecutor
Concerning 9 J 195/42 g.
The execution of the death sentence against the person named took place
on 19 July 1943 at the Munich-Stadelheim prison. 1 minute, 10 seconds
elapsed between his leaving the cell and final execution, and from the
moment he was handed over to the executioner to the fall of the axe, 10
seconds. There are no accidents or other happenings to be reported.
[Typed] signed KUMMER
Certified: [Signature illegible]
Clerk
[Stamp]
The Chief Prosecutor
Munich
PARTIAL TRANSLATION OF DOCUMENT NG-381
PROSECUTION EXHIBIT 159
THE BECK CASE, 5 APRIL-21 SEPTEMBER 1943. EXTRACTS FROM THE OFFICIAL
FILES INCLUDING REPORT OF LOCAL NAZI OFFICIAL, 5 APRIL 1943; REPORT TO
THE GESTAPO IN VIENNA, 4 JUNE 1943; LETTER FROM DEFENDANT BARNICKEL TO
THE PRESIDENT OF THE PEOPLE’S COURT, 30 JULY 1943, ENCLOSING INDICTMENT
SIGNED BY BARNICKEL; AND JUDGMENT OF THE PEOPLE’S COURT AFTER TRIAL OF
20 SEPTEMBER 1943
Ortsgruppe Vienna, 5 April 1943
Rembrandtstrasse NSDAP Gau Vienna
2., Obere Donaustrasse 35 Kreis II
Telephone: A 43-0-72 The Kreisleiter
[Stamp]
NSDAP Kreisleitung II
12 April 1943
S/Jo.
Subject: Oskar Beck, of mixed race, Vienna, 2., Obere
Donaustrasse 12
I enclose a report from the competent block leader on Oskar Beck. Beck
is of mixed race, 1st degree, but he behaves like a 100 percent Jew and
is a malicious enemy of Party and State, who unfortunately could not
be caught up to now. I had already raised objections against the man
when, at approximately 11 o’clock at night, he removed wireless sets
from his shop to install them in his flat. I reported to you personally
on this matter at the time, but there was then no means of initiating
proceedings against him.
The present report may make it possible to apprehend Beck.
Heil Hitler!
The Ortsgruppenleiter
[Illegible Signature]
[Stamp]
National Socialist German Workers Party
Ortsgruppenleitung Rembrandtstrasse
To the NSDAP, Gauleitung Vienna
Gau Personnel Office
Main Office for Assessing
Political Reliability
Vienna, I, Gau Building
Assessment to be sent to:
(Exact designation and address
of office to which reply is to
be sent).
To the Secret State Police,
State Police Office Vienna,
Vienna, I
Morzinplatz No. 4
Reference of inquiring office:
IV A 3--853/43
Vienna, 4 June 1943
[Handwritten] 285981
Political assessment requested for:
Name: Beck
Date of birth: 21 July 1899
Occupation: Radio dealer
Place of residence: Vienna II
Other addresses from 1932 until now:
First name: Oskar
Place of birth: Vienna
Where employed: Independent business man
Street: Obere Donaustrasse 15/9
Of mixed race: 1st degree.
Purpose of inquiry: State Police proceedings
[Handwritten] 10 June 1943
Confidential!
Answer from Personnel Office
Vienna, 29 June 1943
P.B. 285.981/hei/bu
The above-mentioned was a member of the Social Democratic Party,
and while it was banned he was a voluntary member of the Fatherland
Front.[506] He was at that time an adversary of the [National
Socialist] movement.
There has been no change in his opinion up to the present. He does not
belong to any of the affiliated associations of the NSDAP and gives
very small sums to collections.
On political grounds exception must be taken to Beck, who is of mixed
race, 1st degree.
Heil Hitler!
[Signed] VOLKMER
HEIDE
Berlin W 9, 30 July 1943
Bellevuestr. 15
telephone: 21 83 41
The Reich Chief Prosecutor at the People’s Court
Reference: 9 J 617/43
Please quote in your answer
[Handwritten] E 19/8
R.
To the President of the People’s Court
Here
Subject: Criminal case against
radio engineer and dealer, Oskar Beck
from Vienna for undermining military efficiency
Enclosure: 1 volume of files
9 copies of the indictment
I enclose the indictment together with enclosures, with reference to my
submissions contained in the latter part of it.
If Attorney Dr. Jerabek obtains admittance as defense counsel, no
counsel need be appointed (pages 14 and 15 of the indictment).
Prosecution under article 2 of the law of 20 December 1934[507] has
been ordered as a precaution (page 17 of the indictment).
As deputy:
[Signed] DR. BARNICKEL
Berlin, 30 July 1943
Chief Public Prosecutor at the People’s Court
9 J 617/43
_Arrest!_
Indictment
The radio engineer and radio dealer Oskar Beck, born on 21 July 1899 in
Vienna, from Vienna II, Obere Donaustrasse 15; bachelor, no previous
convictions, provisionally arrested on 3 June 1943, from that day on
under detention pending judicial investigation in virtue of the warrant
issued by the examining magistrate at the Court of Appeal in Vienna on
17 June 1943--2 S Js 1750/43--at detention prison I in Vienna, so far
without defense counsel, is charged by me, in Vienna in March or April
1943 to have undermined the defensive strength by malicious incitement
against war work for women.
Crime according to article 5, paragraph I, number 1 of the
Extraordinary War Penal Ordinance.[508]
_Main result of investigations_
The accused attended the elementary school and a 4-year high school
course in Vienna, and for 5 years attended a trade school for
electro-technicians, was employed until 1924 in a number of places;
and since then has had a shop of his own with a net income of 200
reichsmarks per month. He is of mixed race, first degree; his mother
was a Jewess. From 1919 until March 1922 he was a member of the Social
Democrat Party. He is now a malicious adversary of the National
Socialist State.
In March or April 1943, he repaired the wireless set of Theresia
Draxler, retired post office secretary. When leaving her apartment, he
saw an application form for joining the total war effort on the kitchen
table. He asked the witness Draxler whether she had already filled in
the form and added:
“Do you know that every woman who goes to work, sends one
soldier to his death”?
The witness Draxler did not answer him. Then the accused left the
apartment.
He denies, but has been convicted by, the trustworthy statement of the
witness.
The remark of the accused aims at preventing a person from fulfilling
the duty of registering for the total war effort. This attempt to
burden the conscience of a woman who is willing to work by seeking to
make her responsible for the heroic death of soldiers jeopardizes the
devotion of women for work, and has a damaging effect on the nation’s
fighting morale and its will of self-preservation in total war. The
accused could not count on Mrs. Draxler keeping his remark to herself,
but had to reckon with the fact that she would speak of the incident to
other people and that his utterance would become known to wider circles.
Evidence
I. Statements of the accused.
II. Witness: Post office secretary, retired, Theresia Draxler in
Vienna II, Scholzgasse Nr. 2.
I request that trial shall be ordered, detention pending investigation
be maintained, and defense counsel be appointed for the accused.
As deputy:
[Signed] DR. BARNICKEL
Received: 21 September 1943
9 J 617/43
4 L 150/43
In the Name of the German People
In the case against the radio engineer and radio dealer Oskar Beck,
born 21 July 1899 in Vienna, resident in Vienna, at present under
detention pending judicial investigation for undermining the military
efficiency, the People’s Court, 4th Senate has decreed that, following
the trial held on 20 September 1943, at which the following were
present, as judges:
People’s Court Counsellor Mueller, president
District Court President Mittendorff
Kreisleiter Reinecke
City Councillor Ahmels
City Councillor Vahlberg, as representative of the Reich Chief
Prosecutor
Senior Prosecutor Jaeger
The defendant is sentenced to death and to the loss of civil rights for
undermining the military efficiency.
He bears the cost of the proceedings.
Findings[509]
The 44-year old defendant has had German citizenship since the
“Anschluss.” His deceased mother was a Jewess. After passing through
primary school and a 4-year high school course, he was trained as an
electrician at a trade school in Vienna which he attended for 5 years,
and then held several jobs until 1924. Next, he worked independently as
a radio engineer and radio dealer in Vienna. He claims to have earned
about 300 RM a month lately. From 1919 to 1922 he was a member of the
Social Democratic Party. _Later on he belonged to the “Fatherland
Front.”_
The Draxler couple were among his customers in Vienna to whom he had
sold a radio several years ago. At Mrs. Draxler’s request he had
repaired it several times. In March 1943 Mrs. Draxler called him in
again to overhaul the radio. As he left the apartment, he happened
to see lying on the kitchen table an application form for employment
in the total war effort. Believing this to be Mr. Draxler’s form, he
asked Mrs. Draxler whether she too had filled in such a form. When
she informed him that she had got the form for herself, he said: “You
realize, of course, that every woman who goes out to work, sends a
soldier to his death”? Mrs. Draxler who was very indignant about this
remark refused to answer, and he left very soon afterward. Later on
she spoke of this incident to some of her acquaintances, among others
to the wife of a political leader in the NSDAP who reported it to the
Ortsgruppe.
The senate considers these facts to be correct on account of the
trustworthy statements made under oath by Mrs. Draxler. The defendant
admits that he was in the apartment of the witness in the spring of
1943 to test the radio and to have left through the kitchen; he denied
emphatically, however, during the preliminary proceedings as well as
at the trial to have made the remarks with which he is charged or any
similar remark. He maintains to have only discussed business matters
with Mrs. Draxler as with his other clients. The woman might have been
annoyed that the radio had been out of order several times and had
therefore reported him. The witness might have heard the remark from
somebody else and mixed it up. His attitude was not hostile to the
Third Reich. He had advised a National Socialist, Walter Pindur, who
during the Schuschnigg period had supplied him with cardboard out of
which swastikas had been cut, to be careful. The Party members, senior
customs inspectors Schmidt and Scerences would be in a position to
testify to it that he had not been an enemy of national socialism. An
inquiry at the Ortsgruppe Rembrandt would show that he had done repair
work for them free of charge.
The defendant cannot have any success with this defense. The witness
Draxler firmly maintained her statements in the face of all his
objections and the senate, from her bearing at the trial, gained the
conviction that the witness did not wrongfully accuse the defendant out
of annoyance because her radio did not work. Furthermore, she denied
to have been annoyed at all and pointed out quite rightly that she
had not made the report. The senate is convinced that by his denials
the defendant is only trying to avoid the serious consequences of his
offense. To interrogate the witnesses Pindur, Schmidt, and Scerences
and to obtain a statement from the Ortsgruppe Rembrandt in Vienna is
superfluous in view of the facts, especially if one considers that
for ulterior motives the defendant would not have disclosed his true
opinion to these witnesses nor to the Ortsgruppe.
_The way in which the accused spoke calmly and deliberately, and
without any apparent cause, only an enemy of the State can think and
speak._
The utterance which the accused is known for certain to have made
to the witness Draxler was liable to impair her as well as other
people’s willingness to work for the total war effort. By this
remark he attacked therefore the fighting morale and the will for
self-preservation of the German people, and this he did “publicly”
within the meaning of article 5, number 1 of the Extraordinary War
Penal Ordinance, as he had to count on the fact _and he actually
did count on it_ that the witness, whom he did not know well would
spread his remarks--as actually did happen. The senate is furthermore
of the opinion that the accused was fully aware of the defeatist
nature of his remark and the publicity in the above sense. Thus, the
conditions under article 5, paragraph 1, number 1 of the Extraordinary
War Penal Ordinance of 17 August 1938 apply. The fact that the
intention of the accused was without any result as regards the witness,
does not affect this state of affairs--the purpose of the above
ordinance is not merely to prevent any undermining of the people’s will
to self-preservation, but to prevent all possibility of undermining it.
It is out of the question to assume a less serious offense because the
accused acted with the intention to undermine morale and because [by
the remorse combined with it][510] _the appeal to the emotions_
of a woman prepared to join the war effort represents a _well
calculated_ and particularly mean _and dangerous_ attack
on the German nation’s will to self-preservation. Accordingly, the
death sentence, which is the only penalty provided for the crime of
undermining the military efficiency, was passed on the accused.
Owing to the dishonesty of his offense, the accused forfeited his civil
rights.
Costs have been awarded according to the law.
[Signed] MITTERDORF
MUELLER
TRANSLATION OF DOCUMENT NG-546
PROSECUTION EXHIBIT 141
DRAFT OF A NOTICE TO HITLER, INITIALED BY DEFENDANT ROTHENBERGER AND
VOLLMER, NOVEMBER 1943, REPORTING A DEATH SENTENCE IMPOSED BY THE
PEOPLE’S COURT UPON A FORMER GERMAN NAVAL CAPTAIN FOR REMARKS ALLEGED
TO HAVE ASSISTED THE ENEMY AND UNDERMINED THE MORALE OF THE ARMY
The Reich Minister of Justice
Fuehrer Information 1943 No.
On 18 October 1943, Guenter Paschen, retired naval captain [in German
navy] from Flensburg, was sentenced to death by the People’s Court for
assisting the enemy and for undermining the morale of the army.
Paschen, whose family on his mother’s side comes from Denmark and who
is married to an English woman, was a veteran in World War I and took
part in the Skagerrak battle and later on in the Finland operation.
Last, he was liaison officer with General von der Goltz. Having retired
after the collapse, he was a naval training officer from 1926–1936.
Paschen, since his retirement, is a resident of Flensburg and moves in
the circle of the Danish minority. He had a political discussion at the
end of August 1943 with two Danes, unknown to him, who wanted to rent
a furnished room in his house. He then expressed the view that he did
not believe in a German victory and that he thought the secret weapons
to be propaganda bluff. Furthermore, he stated that Denmark had been
treated unjustly in 1864 and that the Reich must give Schleswig back to
Denmark.
One of the Danes adopted these views as his own and tried to shake the
confidence in victory of a woman naval auxiliary with whom he had an
affair.
The sentence will be executed.
Berlin, .... November 1943
(Expert on the case: Chief Public Prosecutor Dr. Franke)
Initials] R [Rothenberger]
V [Vollmer]
PARTIAL TRANSLATION OF DOCUMENT NG-674
PROSECUTION EXHIBIT 100
CIRCULAR LETTER FROM THE REICH MINISTRY OF JUSTICE TO LEADING JUDGES
AND PROSECUTORS, 19 FEBRUARY 1944, TRANSMITTING EXCERPTS FROM REPORTS
OF A CONFERENCE OF JUSTICE OFFICIALS ON CASES OF “UNDERMINING” AND
“MALICIOUS POLITICAL ACTS”[511]
The Reich Minister of Justice
3131 E--I p 2 43
Berlin W 8, 19 February 1944
Wilhelmstrasse 65
Telephone: 110044
Long distance: 116516
_Confidential_
To: 1. The Presidents of the Reich Supreme Court and of the
People’s Court
2. The Reich Chief Prosecutors at the Reich Supreme Court and at
the People’s Court
3. The Presidents of the District Courts of Appeal
4. The Attorneys General at the District Court of Appeal
Subject: Meeting on 3 and 4 February 1944
Enclosures: Additional copies for the presidents of the district
courts and the chief public prosecutors
Enclosed please find a copy of excerpts from some of the reports in the
field of criminal justice of the Reich Ministry of Justice made at the
session on 3 and 4 February 1944. Point No. 7 was not discussed at the
session, I beg you to discuss this point, too, at the meeting planned
with the judges and prosecutors of your district and to see that they
observe the instructions given in the copy.
[Stamp]
Reich Minister of Justice
Ministerial Chancellery
BY ORDER:
[Typed] DR. VOLLMER
Certified: [Signed] BLUENKE
Clerk
313 E--3 a 3376
To: The Chief Public Prosecutors, for information
Munich, 7 March 1944
The Attorney General
BY ORDER:
[Typed] signed: KEIDEL
Chief Public Prosecutor
1. _Definition of cases of “Undermining” [Military Efficiency] and
cases of “Malicious Political Acts”_[512]
The relations between the law on malicious acts against State and
Party, article 2, paragraph 1, and the decree concerning special
penal law in wartime, has changed during the fourth and fifth year of
the war. The development was speeded up by the events at Stalingrad
and in Italy. This found its outward expression in the following
measures: setting up a special committee for cases of undermining the
morale--for serious and acute attempts at undermining morale--in the
Reich Ministry of Justice, a corresponding agreement with the Reich
Security Main Office, by taking steps concerning the distribution of
work at the People’s Court and by a press campaign. A number of Special
Court districts and also certain criminal divisions with the district
courts of appeal have not yet followed the new practice. The severity
of their sentences does not agree with the penalties of the sentences
at the People’s Court. Conditions are to be made clear by this report
and by a Judges’ Letter.[513] The temporary defensive attitude at the
front means a burden for the home front. The enemy is looking for weak
spots, and thinks he has found them in the will for self-assertion of
the inner front, as it was 1914–1918. Since the Italian events he has
been intensifying this attack. The not very numerous cases of defeatism
resulting from it have led to a new line in the administration of
justice in cases of undermining of military efficiency, which is to be
organically followed in the treatment of cases concerning malicious
political acts. The following cases dealt with by the Reich Ministry of
Justice, are intended to illustrate this line.
Clear cases of serious undermining of the military efficiency
_Case Dr. Geiger_--a 52-year-old physician, Party member, no prior
convictions.
_Offense_--In summer 1943, the condemned man made a remark during
the treatment of the pregnant wife of a Hitler Youth Leader who was
at the front at that time that she had courage in having a child now.
For if things went wrong, we would be in a bad way. After the events
in Italy the war was lost for us, a victory of the Russians meant our
physical death, a defeat by the English and Americans was still the
smaller evil. She--the patient--was too much under the influence of
Nazi propaganda. To the scared question of the pregnant woman, what was
going to happen to all of them, the condemned man answered that persons
living such an “exposed” position (as her husband) naturally would be
dealt with in the first place. Then there would be a mass Katyn.[514]
Sentence of the People’s Court--8 September 1943--death sentence.
Request of the public prosecutor--death sentence. Plea for clemency was
refused.
_Case Weber_--a 60-year-old dentist, Party member, no previous
convictions.
_Offense_--In August 1943 the condemned man made the remark to a
patient--hardly anybody still believed in victory. Medieval methods of
torture were applied in our concentration camps; especially homosexuals
were being too harshly dealt with; we had murdered a million Jews and
therefore had incurred a grave burden of guilt. Rudolf Hess was the
right man but not the Fuehrer. The condemned man went on literally:
“Moreover, in 4 weeks’ time, the Fuehrer will no longer be alive. You
will hear about it.”
Sentence of the People’s Court of 15 September 1943--death sentence.
Request of the public prosecutor--death sentence. Plea for clemency was
refused.
In cases of undermining the morale the consideration of the actual
nature of the facts must not be excessive. In the fifth year of the
war every German has to think about the effect of his remarks to other
people. The same applies to foreigners, who are working here and enjoy
German hospitality. Critical, for instance, authorized discussions of
the political and the war situation are not punishable only as long as
they are not calculated to shake the convictions of others.
Up until now, no need has been observed to give the prerequisite
“publicly” in article 5 of Extraordinary War Penal Ordinance a more
rigid interpretation than is done in cases of malicious political acts.
As such to be considered are remarks falling under article 2 of the
law against insidious attacks on State and Party, which do not result
in influencing other people. Two examples are the cases of Krejci and
Kochzius.
_Case of Krejci_--41-year-old home worker, no previous convictions.
_Offense_--In spring 1943 the condemned woman told the following
joke:
“Who is the biggest farmer in Germany”?
“Adolf Hitler, he owns a lame dog, a fat pig, and many million
sheep.”
(With the lame dog and the fat pig she meant Goebbels and
Goering.)
Sentence of the Special Court II Berlin of 5 October 1943--6 months
imprisonment.
_Case of Kochzius_--a 57-year-old printer.
_Offense_--At the beginning of 1942, the condemned man answered
the greeting, “Heil Hitler,” with, “Shit.”
In December 1942 when Fuehrer parcels were distributed in the plant, he
made the remark that he did not want the Fuehrer and these parcels, he
was no beggar.
In January 1943 the condemned man declared, that the Fuehrer was a
tramp; a vagabond without a Fatherland who came from abroad where only
beggars lived; he intended to make the Germans into beggars too; he was
making the people ridiculous in the eyes of foreigners by the street
collections. The entire government as well as the Party consisted of
tramps and rascals.
To a Party member he remarked, that he had better hurry up and get out,
otherwise he would be hanged from a tree later on. Sentence of the
Special Court II Berlin of 28 September 1943--1 year imprisonment.
Border line cases are the cases of Graf, Kessel, Eckert, and Heinitz.
_Case of Graf_--a 65-year-old farmer, no previous convictions.
_Offense_--In spring 1943 the accused declared, “Hitler must
abdicate, then the war will stop.”
In autumn 1943 he made the remark, “The war will not stop until Hitler
abdicates.”
In October 1943 he remarked, “The Germans bled to death in the advance,
and now they bleed to death in the street. In summer, one runs to save
every little berry, and now one has to watch how everything perishes.
It only depends on a few gentlemen. With the war it is just the same
thing. All their throats should be cut.”
In agreement with the general public prosecutor, the Chief Public
Prosecutor proposes not to order prosecution under article 2 of the
statute against malicious political acts but to warn the defendant
by imposing a fine. The defendant had a good reputation and was a
participant of World War I, had several sons at the front, and had
already backed the NSDAP before it had taken over.
The opinion of the field offices that this case was one of malicious
political acts cannot be agreed to. It rather represents a case of
undermining the morale, which has already been submitted to the Chief
Public Prosecutor for examination.
* * * * *
_Case Eckert_--domestic servant, 50 years of age, single, no
previous convictions.
_Offense_--In the afternoon of 14 September 1943, the accused,
in a shop, said to the female proprietor in front of partly unknown
persons, “By Christmas, the war will long be over. Germany has long
since been divided up.” Obviously she alluded to a defeat in the very
near future. When asked by an employee of the local health insurance
office, how she thought it would be if the war were lost and we would
all have to go to Russia, the accused replied, “Very well, let them
send those 5 million SS men there. During the last air raid on Mannheim
the SS, those bloody swines, chased the people out of the shelters with
rubber truncheons for fire-fighting and clean-up work.”
The Chief Public Prosecutor with the approval of the General
Public Prosecutor wants to base the charge on article 2 of the law
against malicious political acts or insults to the State or Party
(Heimtueckegesetz)[515] and to propose a prison term of 9 months. This
is a border line case. Certainly the statements made by the accused in
their second part fulfill the conditions of malicious political acts
or insults to the State or Party. Regarded as a whole, however, the
accused obviously had in mind to injure the listeners’ will to pull
through, as can be seen from the first part of her statements. When
she met with resistance in doing so, she tried to support her opinion
by abusive language and by telling atrocity stories. The trend of her
statements therefore was directed toward undermining [the military
efficiency].[516] Therefore, the accused will, in the first place, have
to be prosecuted under this provision.
* * * * * * *
PARTIAL TRANSLATION OF DOCUMENT NG-671
PROSECUTION EXHIBIT 220
EXTRACTS FROM THE SITUATION REPORT OF DEFENDANT LAUTZ, CHIEF PUBLIC
PROSECUTOR AT THE PEOPLE’S COURT, TO THIERACK, 19 FEBRUARY 1944,
CONCERNING THE UNDERMINING OF MILITARY EFFICIENCY
Copy
Berlin W 9, 19 February 1944
Bellevuestrasse 15
The Chief Public Prosecutor of the People’s Court
4206 E--2.36
[Initials] KL [Klemm]
[Stamp]
SECRET
To the Reich Minister of Justice
Berlin W 6
Wilhelmstrasse 65
Decrees of 25 October 1933--IIIa 19570/35 and 29 October
1942--3130-Ia _9_ 1746-.
Enclosures: 2 copies of the report.
[Handwritten illegible marginal notes]
[Handwritten note] M.D. IV Mr. B.S.S. request to be informed in
regard to p. 9.
[Signed] MARTIUS 28 February
_Situation Report_
A. _High treason and undermining of military efficiency within the
Reich territory (except for the Protectorate)_
I. _General._
* * * * * * *
In accordance with the expectation expressed already in my previous
report of 8 October 1943, the number of incoming reports on
investigations concerning undermining of military efficiency has again
increased considerably. At present the daily average amounts to about
25 cases. Since, in addition, numerous investigations which are not
handled by special proceedings and which could not yet be concluded are
pending, I am forced at present due to the pressure of business in my
office and the further difficulties caused by the effects of the terror
raids to make more extensive use of my right to turn matters over to
another office. However, in the interest of a uniform jurisdiction the
indictments will principally be served before the People’s Court in all
cases where--
_a._ The undermining activity involves members of the Wehrmacht.
_b._ Greater significance is ascribed to the statements of the
accused because of his position in public life or in the economy.
_c._ The accused has become known as an enemy of the State
on principle or a systematic instigator either according to his
personality or because of the nature of his offense.
_d._ The personality of the accused in connection with the nature
of his offense or the effect he strived for seems to point to special
treatment.
_e._ The offender belongs to the clergy.
In view of the necessity of turning over proceedings, even in which the
offense can be called a serious one without question, I have generally
informed the chief public prosecutors concerned in advance of the
altered way in which I am going to handle my right to turn matters over
to another authority. In addition to this they will in each single
case be especially informed about my conception of the case and will
be requested within the limits of my right of turning cases over to
them, not to consider taking on less serious cases but to strive for
the highest possible penalty if the state of the investigations at
the moment the case is handed over gives a sufficiently clear picture
of the case in this respect. In comparison with the previous report,
no essential new experiences were gained regarding the nature of the
offenses and the personality of the offenders. Especially could it
not be determined that the number of punishable offenses increased,
particularly in those territories subject to a special air terror of
the enemy. It is rather characteristic that the manifold rumors about
alleged riots among the population in the cities damaged by air raids
often arose in regions not at all or only slightly affected by the
air terror. This leads, on the one hand, to certain conclusions as to
the intentions of the propagators of these rumors. On the other hand,
however, it can be taken as a pleasing sign for the truly disciplined
attitude of the population that suffers most from the enemy’s air
terror.
II. _Special Proceedings._
* * * * * * *
[Typed] signed: LAUTZ
EXTRACT FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[517]
_DIRECT EXAMINATION_
* * * * * * *
DR. KUBUSCHOK (counsel for defendant Schlegelberger):
According to the document I have before me, Document NG-412,
Prosecution Exhibit 77,[518] the Ministry of Justice made a suggestion
to increase the severity of penal provisions concerning the preparation
of treason. Would you explain this?
DEFENDANT SCHLEGELBERGER: The situation with regard to the law
was the following: Preparation for treason [Landesverrat] could not be
punished by death. Treason, that is to say the betrayal of the native
country in my opinion, is the most severe and most serious political
crime, and the danger inherent in that crime reveals itself already
in its preparation. As can be seen from the document, the question
had come before the public and had been discussed in public on the
occasion of the Sklarek case, and had become the subject of a heated
discussion. It was known to me that Hitler once before in a cabinet
meeting had taken the position that preparation for treason should be
punished by death. It was quite obvious for me that as a consequence
of the Sklarek case and, on that, Hitler’s point of view was also
known to other people, a new storm would come up; in fact it was the
expressed purpose to force matters upon the administration of justice
so that afterward one could make use of these matters, by saying that
the administration of justice itself was not strong enough to find
the right position, or in order to institute and justify proceedings
outside the administration of justice. I considered it appropriate,
therefore, to bring this question into the stage of a legal regulation
as quickly as possible. In the draft the death penalty was provided
for very serious cases, cases of aggravating circumstances, and that
provided the guaranty at least for the fact that in ordinary court
proceedings it would have to be examined whether that really was a
severe case. The danger was quite acute that unless in time such a law
would be promulgated, other elements, namely, the police, would have
seen to it and would have taken care of it wholesale without examining
individual cases. Since the cases in question were cases of the past,
retroactive measures had to be permitted. That is well within all legal
guaranties.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT LAUTZ[519]
_DIRECT EXAMINATION_
* * * * * * *
DR. GRUBE (counsel for defendant Lautz): Mr. Lautz, is it
correct that in 1938 you received an offer to become senate president
in the Reich Military Court?
DEFENDANT LAUTZ: That is correct. I was well known to the
Ministerial Director at the High Command of the Wehrmacht, Lehmann, who
appeared as a witness before this Tribunal and who offered me in 1918
to become senate president at the Reich Military Court.
Q. Just a moment, I believe you made a mistake, you meant to say 1938?
A. Yes, 1938.
Q. At that time, would you have improved your financial situation if
you had accepted?
A. Yes. The position was much better paid.
Q. Why did you not accept that position?
A. I did not accept it only for the one and decisive reason that I did
not want to leave the beautiful district of Karlsruhe for the time
being.
Q. For how long were you general public prosecutor in Karlsruhe?
A. Unfortunately, only until 1939.
Q. May I now ask you, who was Parey?
A. Parey was Reich Public Prosecutor since 1936, later chief Reich
prosecutor [Oberreichsanwalt] at the People’s Court in Berlin.
Q. And for what reason did Parey leave his office as Chief Reich
Prosecutor at the People’s Court?
A. At the beginning of November 1938. He had an automobile accident.
Q. When did you find out for the first time that you were being
considered as Parey’s successor?
A. At the beginning of December 1938. The then Under Secretary
Freisler, on order of Minister Guertner, informed me that Guertner had
chosen me as his--that is, Parey’s--successor.
Q. Did you make any efforts to obtain that position?
A. Not at all.
Q. Did you do anything against your appointment as chief Reich
prosecutor at the People’s Court?
A. I was very much interested in getting out of being appointed to that
position, and because of that I consulted with the personnel division
of the Ministry as to how I could prevent my appointment. However, I
was told that Minister Guertner attached importance to my taking that
position, and therefore, being a civil servant I complied.
Q. May I ask you why you had an aversion to that office?
A. First of all, because of the exclusive occupation with political
penal cases and in connection with that the absolute dependence upon
the Ministry which was my superior was not an inducement for me; even
though, at that time, I could not have the remotest idea that war would
shortly break out, that Minister Guertner would die, and that through
all these events a course would be followed in politics which, in any
case, was not in accordance with the one that I imagined.
That was my main reason. My second reason was that I wanted to remain
in Karlsruhe.
Q. When were you appointed Chief Reich Prosecutor?
A. I was appointed on 1 July 1939.
Q. At that time, did you still count upon becoming Chief Reich
Prosecutor, since Parey had already left the office some time before?
A. Since it took such a long time I had the hope, quietly, that perhaps
another person would be found.
Q. Did you ever find out whether any office of the Party or any other
organization of the Party was in favor of your appointment as Chief
Reich Prosecutor?
A. I never heard anything about that.
Q. When, in effect, did you assume your office as Chief Reich
Prosecutor at the People’s Court?
A. Due to illness, I only assumed office on 20 September 1939, in
Berlin.
Q. However, you had already been appointed on 1 July?
A. Yes.
Q. Mr. Lautz, may I ask you this? Before 1933, did you belong to a
political party?
A. From 1924 to 1930, I was a member of the German People’s Party. That
was the party of Minister Etresemann, who became well known through
the policy of understanding which he followed toward the victorious
countries of 1918, and whose efforts, in particular to reach an
understanding with France in order to bring about peace in Europe, I
welcomed very warmly and supported.
Q. When did you become a member of the National Socialist Party?
A. On 1 May 1933.
Q. Will you please tell the Tribunal for what reasons you joined the
Party?
A. Before the spring of 1933, I belonged to the Prussian Judges’
Association, in which organization I worked on press matters as a
member of the board of directors. The Prussian Judges’ Association
decided to urge its members to join the Party. I joined because,
according to the situation prevailing at the time, I considered it to
be the correct and proper thing to do.
Q. Mr. Lautz, at that time in 1933, did the joining of a party have the
significance of 100 percent approval of the Party platform? Was it not
rather like this, that since the Weimar era joining a party by no means
implied that one approved of its ideology?
A. In the case of many persons who joined the Party at that time, that
was so.
* * * * * * *
Q. Through my documents in Lautz document book 1, I have already shown
that the competence of the People’s Court to sentence defeatist cases
was introduced only beginning in February 1943. Witness, for how long
did the special penal regulations for wartime exist on which these
trials against undermining of military efficiency were based?
A. This special wartime penal order is from 1938[520] which was put
into effect only on 26 August 1939.
Q. Originally the Reich military court was competent for those cases
of undermining of fighting force or the other military courts, is that
correct?
A. Yes. That is correct, not only for members of the Wehrmacht but also
for civilians.
Q. In 1940 the competency in regard to civilians was transferred to the
general courts?
A. Yes. That is correct.
Q. Who became competent at that time for the cases of the so-called
public undermining of military efficiency?
A. Public undermining of military efficiency was prosecuted by the
senior public prosecutors at the special courts and/or was to be tried
by the Special Courts.
Q. When in 1943 the cases of so-called public undermining of military
efficiency were transferred to the People’s Court, had the law, in
effect, been applied for 4 years?
A. Yes.
Q. Is it correct, Witness, that the decision as to whether a public
undermining of military efficiency was proved depended upon the
following two points: first, what does the legislator mean by an
attempt to undermine; and second, when was this attempt to undermine
committed in public? Is it correct that those were the two nuclei in
this question?
A. Yes.
Q. Is it furthermore correct that, when in 1943 the People’s Court
became competent, these two basic questions of undermining of fighting
efficiency were based on a general jurisdiction originating first from
the Reich Military Court, then the Reich Supreme Court, and then of the
Special Court--that these decisions existed already?
A. The Reich Military Court had in several very basic decisions decided
these questions without any doubt.
Q. In regard to these points from which it is especially evident that
the definition of “public attempt of undermining” had already been
laid down definitely in 1943, I shall prove by some further documents.
Witness, how did the individual cases of undermining come to your
office?
A. That differed. In part, the senior public prosecutor at the Special
Court who considered the case as leaving room for no doubt submitted
the files to me. If, on the other hand--and that occurred in the
majority of cases--he harbored doubts whether this was not merely a
malicious act, then, as was his duty, he reported it to the Minister
of Justice, and the Minister of Justice decided whether a case was
to be regarded as undermining of fighting efficiency and should be
transferred to the chief Reich public prosecutor.
This is evident from the affidavit by the witness Franke, which the
prosecution submitted.
Q. May I refer to the fact that this is Exhibit 515[521] submitted by
the prosecution. Furthermore, I am referring to Exhibit 97[522] of the
prosecution. Witness, did it continue the way you described it just
now, later on too?
A. Later on, two more basic changes occurred. A very severe decree
of 13 August 1943 was introduced. Minister Thierack required a more
expeditious and more emphatic trying of certain especially serious
cases of undermining of fighting strength. For this purpose, it
had been ordered that the RSHA submitted those cases which were not
very numerous, either through the hands of the Minister of Justice
or directly to me. I submitted them to a special division because
the division which treated other cases of undermining of military
efficiency was no longer in a position, merely due to the large number
of cases, to take over this new work also. These cases in the main
are those in which the so-called quick trials [schnell termine] took
place which have frequently been discussed here already. Due to the
importance of the cases, Freisler also did not let anybody deprive
him of trying these cases basically in his senate. Moreover, due to a
later decree by the Minister of Justice, it was laid down that in the
preliminary investigation of the cases which were to be submitted to
the chief Reich Public Prosecutor, that the presidents of the district
courts of appeal should be included in order to avoid too many of these
files being submitted to the office of the Reich Public Prosecutor.
The final decree which concerns these cases, and which I am citing
because perhaps it is important in the von Braun case, is the
following instruction by the minister. If an indictment is filed
before the Special Court in a malicious acts case, and during the
trial the Special Court decides however that possibly this might be an
undermining of military efficiency in which case the Special Court was
not competent to sentence, then the Special Court should not through an
uncontested decision refer this to the People’s Court, but the Chief
Reich Public Prosecutor should ask for an adjournment so that the chief
Reich public prosecutor could examine the case in every individual
case. If he considered it not suitable, he was to return it to the
Special Court. In this way, it was intended to prevent that through
such decisions against which it could do nothing, the People’s Court
was burdened with cases which did not concern it.
Q. Witness, how were pending cases treated? How were the cases
which came to it treated by the office of the Reich prosecutor, and
especially how was the conduct of the members?
A. When the order came into effect--the order of 29 August 1943--at
which time the People’s Court became competent, at that time I was on
an official trip outside of Berlin. When I returned, I found out that
the defendant Barnickel, who at that time was my deputy, had handed
over the handling of the cases which came to his division. At that
time, he was of the opinion--at least, that is what he told me--that
his division was less burdened and therefore was in the best position
to be able to handle the new influx of cases. I let matters stand as
they were.
First, we introduced the following treatment of the cases and we also
maintained this for several weeks and months. At certain intervals of
2 or 3 days, every case that was handled by the expert or the Referent
in the presence of the division chief was reported to me, and then we
made a decision as to whether we wanted to file an indictment before
the People’s Court and for what reasons this was necessary. Varying
reasons governed this. In part, the cases were so serious that there
was no doubt about this. In part, we considered it necessary in order
to bring about certain basic decisions on principle--to bring about
the sentencing by the senate of the People’s Court. During that time,
the number of prison sentences that were pronounced was without doubt
larger than the number of death sentences. The enormous incidence of
new cases, however, brought it about, and this is also apparent from
the situation report which the prosecution submitted, in the beginning
of 1944--
Q. I may interpolate here that the defendant is speaking of Prosecution
Exhibit 220.[523]
A. That at the end of the year 1943, quite a considerable number of
cases were in arrears. Therefore, I decided that in regard to the
cases of undermining of fighting strength to gather them in a special
division which would have the task--especially in regard to the backlog
cases--to clean it up as quickly as possible. Among these, there were
a number of cases of arrest whose expeditious handling was necessary
especially because in a large number of these cases the transfer to
a subordinate court was necessary. Therefore, I could not act in
any other way. No division chief was anxious to be given this new
division. Therefore, I decided that the defendant Rothaug should take
it over.[524] First of all, he was the youngest division chief, and
up to then he had been in charge of a division which was so small and
insignificant that it was easiest to replace him by a senior public
prosecutor.
From the situation report which I mentioned, it is also evident what
the number of cases was which came to us at the time. They amounted to
about seven to eight hundred a month. This figure shows me that when I
was interrogated preliminary to this trial, I made a wrong estimate. At
that time I thought it was twice as high as it actually was.
Q. Witness, you have just said that the number of cases in the
undermining of military efficiency increased to about seven to eight
hundred cases a month. I would like to put another question to you
on that subject. Did that mean that before the People’s Court seven
hundred to eight hundred cases of undermining of military efficiency
were tried every month?
A. No. That figure refers to the number of cases which were submitted
to the Reich prosecution for examination. As I will mention later, only
a small percentage of those cases--I estimate about 10 percent--were
kept back. All other cases were returned to subordinate courts. In my
situation report, if I may repeat that, I only gave the number which I
did mention there because only at the trial here I saw that situation
report again. I ascertained that the figures which I had given in
Exhibit 126,[525] from memory were evidently incorrect.
Q. By that you mean to say that the figures in Exhibit 126, the figures
which you gave from memory, are too high?
A. That is what I did mean to say.
Q. How did you, in general, treat these questions of undermining
military efficiency?
A. To a large extent the treatment of such cases depended on the clear
instructions from the Minister of Justice. It also depended on the
basic importance of these cases. To mention one example, I would like
to revert once again to the situation report of 9 February 1944, that
is Exhibit 220. In that report it says that the undermining of military
efficiency when committed by clergymen would have to be tried before
the People’s Court. That was due to a decree by the Reich Minister
of Justice. Generally speaking, however, in treating these cases I
attached the greatest importance to having every single file examined
carefully by the head of the department so that those points would not
be left unobserved which would justify treating that case in a more
lenient manner. For in particular the transfer of these cases as being
cases of lesser importance to the district courts of appeal or to the
Special Courts, to that I attached the greatest importance, as far as
it was at all possible. That is proved not only by the testimony of the
witness Gruenwald[526] before this Tribunal but it is also evident from
Prosecution Exhibits 178, 474, and 100.[527] For the numbers of cases
where criticism was exercised by the ministry on sentences passed by
lower courts, and in particular at the Weimar conference [_NG-674,
Pros. Ex. 100_] would remain incomprehensible unless many cases
which were more serious had been transferred to the lower courts by the
Reich prosecution.
In the last analysis, perhaps the percentage of cases which we kept
back, as I mentioned before, and of the cases where an indictment was
filed, at the People’s Court, I estimate those cases at 10 percent.
* * * * * * *
Q. Witness, do you still remember what information you received in
regard to the question whether recruiting offices for the Polish Legion
existed in Switzerland?
A. I said that already. From the answer of the head office of the
border police in Stuttgart, it was apparent without doubt that
according to the information which they had from Switzerland that
there was an illegal recruiting and transport service which helped
Poles to get to Switzerland and to Africa; to that extent, Switzerland
apparently did everything that it was possible to do, and as far as it
could; and from the files it is occasionally apparent that the Swiss
border officials returned the Poles who had crossed the border from
Germany; but in all cases they probably did not succeed.
Q. Had the Ministry of Justice also informed you to what extent
recruiting offices for the Polish Legion existed in Switzerland?
A. If I remember correctly, the same information had also reached us
from the Foreign Office via the Ministry of Justice.
Q. Thank you. The prosecution seems to assume that the indictments
were not the results of attempts to join the Polish Legion, but were a
means to prosecute Poles because of their flight from Germany and their
places of work. Please comment on this.
A. For us, that certainly was not the motive for the filing of an
indictment, because we were convinced that the suspicion was justified.
Moreover, against such allegations the fact probably speaks which can
be gathered from Exhibit 259[528] of the prosecution. From that it can
be gathered that particularly at the time in question here, hundreds
perhaps thousands of Poles left their places of work in the Reich; and
if only a very small number of these were tried before a court because
they wanted to join the legion, this makes it apparent that they
were not tried only because they left their place of work. The other
participating offices, that is the police and the counterintelligence
of the OKW, were probably also of the opinion that here we were faced
not only with flight from the place of work, but flight for a special
purpose.
The general situation was just as I described it. During the war the
German Reich, as any warring power, had closed its borders and this had
been done for reasons of the security of the State and was therefore
necessary because everybody who crossed the border and reached neutral
country or an enemy country took along with him important experiences
and knowledge which he had gained in the warring country. Poles knew
that too.
Q. Witness, you have already stated before that a Pole, only for the
reason that he had left his place of work on his own, could not be
tried and sentenced by the People’s Court. Now, according to your
determinations in the individual cases in which Poles were indicted
because of attempts to reach the Polish Legion, did other reasons for
suspicion also play a role which supported the suspicion on the basis
of which then in accordance with the law you were obliged to raise an
indictment?
A. I just wanted to talk about that.
Q. Will you please state what reasons for suspicion have regularly
played a role also?
A. If somebody crosses the border with a certain purpose in mind and
he is caught in the act, then, in the most infrequent of cases will he
be inclined to say and be ready to say what intentions he had in mind,
for in so doing he would damage his own case. Criminal cases which were
conducted under this point of view--and this is probably not the case
only in Germany--therefore are based to a large extent on the justified
conclusions one can draw from the facts available.
Now, it was here known generally what I have already stated, that this
way led to the Polish Legion if one started out on it. Secondly, it
was known that among the Polish workers in south-western Germany these
conditions and knowledge thereof were widespread. Furthermore, it was
generally known to those workers too that favorable conditions for work
could not be expected in Switzerland; and finally, it was in accordance
with the experiences which had been gathered in other trials that a
large number of these people who crossed the border after their arrest
did not even deny this intention. These general considerations alone
would have, in my opinion, justified such a strong suspicion that in
accordance with German Code of Criminal Procedure sufficient suspicion
for the filing of an indictment existed, and that thus the indictment
had to be filed in accordance with the law.
The two indictments which bear my signature are the Bratek and
Stefanowitsch cases. The following element, however, is added. Bratek
had referred to the fact that he only wanted to cross the border in
order to avoid work.
DR. GRUBE: In the Bratek case here we are concerned with
Prosecution Exhibit 136.[529]
DEFENDANT LAUTZ: As I said, he claimed it was only for the
reason to attempt to seek work that he did want to cross the border.
By means of the additional investigations which the division chief
instituted, however, it had been found that he did not like to work;
he had already left other places of work, so that his statement that
he wanted to seek new work in another country in which there were
difficult conditions of work did not seem very credible. So for that
reason his statement had to be accepted with reservations.
* * * * * * *
_CROSS-EXAMINATION_
* * * * * * *
MR. KING: I ask you if it were possible to commit treason
against an individual who was not of German citizenship in the period
which we are discussing.
DR. GRUBE: I object to this question. This is a question which
is asking only for the personal opinion of the witness.
PRESIDING JUDGE BRAND: The objection is overruled.
DEFENDANT LAUTZ: If I understand you correctly, Mr.
Prosecutor, you want to know whether the act of treason was punishable
only when it, the act, was directed against the State as such, or also
when it was directed against an individual person.
MR. KING: Yes. My following question was going to refer to
the differences which you raised. But actually you have stated it very
well. I want to know whether at this time the period which we are
concerned with at the moment, if during that period treason could be
committed against an individual who was not a German citizen, and I
take it that your answer on that is no, is that correct?
DEFENDANT LAUTZ: That had been different ever since the law of
1934.
Q. Yes. I know but I am speaking of the law prior to 1944.
A. No, what I said was 1934. I said the law before 1934. I am referring
to the law 1934 with article 91 [of the Reich Criminal (Penal) Code]
which then became a law.[530]
That article says that the act of treason can be directed against
a German national as an individual, and it was a question of
interpretation whether “German” should here be interpreted as being
of German blood or being a German citizen, and the famous document
in which I made a report to the Reich Ministry of Justice deals with
that question.[531] It is that report which concerns itself with that
question. The courts in the Reich interpreted article 91 to the effect
that it was not the nationality which was decisive but the race, the
blood.
Q. Yes. Well, it is that letter to which I want eventually to refer. I
wanted, however, to get your understanding of the earlier laws before
we get around to discuss the question of that letter. What you have
just said was that article 91 which was adopted in 1934 expanded the
concept of treason to the extent that there could be treason against an
individual who was a Reich national; is that correct?
A. Against a German. And who is a German? That was a question of
interpretation. I believe I can best make myself clear if I come back
to the example which is mentioned in this report. After the occupation
of the eastern territories, that is Poland, that is to say after the
occupation of those territories, which formerly had been German, the
following case came to our knowledge. An ethnic German, a person who
was a German by blood, had had the following experiences. Behind his
back a Polish agent had hidden espionage material in his home without
the German knowing that that material had been hidden there. The
Polish agent then chased the Polish police after him, and his home was
searched by the Polish police. The material was found and the German
who was completely innocent but who could not prove his innocence was
tried in Poland before 1939 and he got a very heavy prison sentence. I
don’t think you would approve of that, would you? When we occupied the
eastern territories that case came to our knowledge--
Q. Excuse me, Dr. Lautz. Is this the Krippner case to which you refer,
or is this the Moses case? There are two of them which you mentioned in
this report.
A. No, no. I cannot remember the--
Q. Would you like to see that exhibit?
A. I cannot remember the name unless you would show me the document.
The name doesn’t matter. It is the facts of the case that matter here.
Q. I think you will find this report referred to in document book 5-B,
beginning on page 73 of the German text.
PRESIDING JUDGE BRAND: Dr. Lautz, will you finish what you
were saying when counsel interrupted you?
DEFENDANT LAUTZ: Yes. I will. After the occupation of Poland
that shameful case, to use a mild expression, came to the knowledge of
the German authorities; and we were now concerned with the question as
to what could be done; and the application of article 91 of the German
Criminal (Penal) Code was interpreted so that in this case treason had
been committed against a German. Treason had been committed against a
man of German blood, treason which could be prosecuted.
Q. It was treason against one of German blood who was not then a German
citizen.
A. He was not a German citizen, but he was of German blood.
Q. The date of that again? When that happened, when it came before this
department?
A. Your Honor, may I just have a look at the report? May I have a look
at the report to make sure of the date?
Q. Yes.
A. That is the case Goleck, which is mentioned in the report. The false
accusation against the person of German blood was made in the year
1938, that is to say, it happened before the war.
Q. And it came up to the Ministry of Justice after the war to decide?
A. That happened during the war when Polish files were confiscated.
MR. KING: Dr. Lautz, you have the letter before you now?
DEFENDANT LAUTZ: Yes.
* * * * * * *
Q. May I ask you to refer to the top of page 75 in the German text, I
believe it is? It is the middle of page 68 in the English.
PRESIDING JUDGE BRAND: What exhibit are you referring to?
MR. KING: I am referring to Document NG-548, Prosecution
Exhibit 347, Your Honor.
Now, could we look at that separate opinion of yours at the end of the
letter?
DEFENDANT LAUTZ: Yes.
Q. Go ahead, please.
A. It begins with the words, “With the Reich Leader SS and the
President of the People’s Court I agree with this.”
Q. Dr. Lautz, see if you can find this portion in the document which
you have. I am sorry you don’t have the document book as it was
originally distributed. I had it paginated for that. Can you find this
statement? You say, “Therefore”--and I believe this is part of your
letter--“Therefore, I find it necessary, on principle, to protect by
means of the German Criminal (Penal) Code those racial Germans who have
seriously suffered through action such as mentioned in article 91,
paragraph 2 of the Penal Code, provided that action deserves punishment
in accordance with sound German sentiment but where such punishment,
considering the elements of wrongdoing of that particular case, cannot
be brought home on the strength of any other directly applicable penal
regulation.”
Those are your words, are they not?
A. Yes.
Q. And then you say in the final paragraph of the letter, “In the
majority of the cases it will be offenses which have been committed by
foreign nationals abroad against racial Germans.” Is that correct?
A. Yes, it is.
Q. That is correct, and those are your words?
PRESIDING JUDGE BRAND: Will you answer audibly so that
reporters may get it?
DEFENDANT LAUTZ: What the prosecutor stated just now is what I
reported.
MR. KING: And then you asked for approval of your
interpretation; is that correct? That is the very last sentence in the
letter?
DEFENDANT LAUTZ: Yes. I had to ask for that because the
decision lay with the Minister of Justice.
Q. Yes. Now, in subsequent cases that came before the People’s Court in
which you were required to file the indictment, you based the charges
on the interpretation which was subsequently approved by the Reich
Ministry of Justice, the interpretation which you ask here? Is that
right?
A. From case to case the Minister of Justice afterward decided as to
whether that procedure was to be adopted or not. He did not issue a
general instruction or directive.
Q. Do I understand you correctly? Let me restate it. Did you mean to
say that even after you asked for this interpretation it was necessary
in the future when cases came up involving these facts that the
Minister of Justice give his approval before you filed your indictment?
Is that correct?
A. The indictment was drafted, and the draft was submitted to the
Minister of Justice, and he approved it or did not approve it.
Q. But the draft of the indictment was based on the law which you
suggested be interpreted as we have discussed it. Then having drafted
the indictment based on this interpretation you got approval or
disapproval, as the case might be, from the Minister of Justice. Is
that right?
A. Yes.
PRESIDING JUDGE BRAND: What was the answer?
MR. KING: The answer was yes, Your Honor.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT BARNICKEL[532]
_DIRECT EXAMINATION_
* * * * * * *
DR. TIPP (counsel for defendant Barnickel): Witness, please
describe further events.
DEFENDANT BARNICKEL: About the end of 1937--beginning of
1938, I was in Berlin again. I told the personnel Referent, who was a
different official then, about my wishes for the position in Munich,
but the case was not that far yet. To my great surprise, on 30 November
1938, I received the communication that, on 1 December 1938, I was to
be appointed Reich prosecutor with the People’s Court.
* * * * * * *
Q. When and how did you assume your new position?
A. As I have already explained, I received the formal appointment on 30
November 1938. The Minister granted me a few days to straighten out my
affairs in Munich, and thus, I assumed office on 6 December 1938.
Q. What position did you hold in the beginning?
A. On 3 November 1938, the chief Reich prosecutor of the People’s
Court, Parey, had had a fatal accident. His permanent deputy, at
that time the only Reich prosecutor, Parisius, was in the hospital
seriously injured. On 1 December 1938, three new Reich prosecutors
had been approved for that office. Of those, two were from the office
proper, and I was the third one. Upon instruction by the minister, I
was to be in charge of the office as a deputy because according to my
age I was the oldest of the three Reich prosecutors there.
Q. Witness, in this connection, I should like to discuss a document
submitted by the prosecution. It is Prosecution Exhibit 347, Document
NG-548. The letter has the heading “Chief Reich Prosecutor with the
People’s Court” and is of 23 April 1942, and is directed to the Reich
Minister of Justice. In this letter, another letter by the Reich Leader
SS and Chief of the German Police of 13 December 1941 is quoted. The
latter letter is directed to, and I quote, “The Chief Reich Prosecutor
with the People’s Court, attention: Senior Reich Prosecutor Dr.
Barnickel, or deputy.” You are therefore addressed as Chief Reich
Prosecutor with the People’s Court, Witness. Can you please explain how
it may have come to that designation?
A. I cannot answer that question with absolute certainty because I do
not happen to know why the office which sent that letter did it. It
is, however, certain that I was never Chief Reich Prosecutor with the
People’s Court. I was only Reich prosecutor at all times, although,
during the first 2 months, I deputized for the Chief Reich Prosecutor,
but during the first few years of my activity I frequently received
similar letters. The first few times, I actually opened them. Later, I
sent them to the office for incoming mail unopened. I assumed at that
time that some office of the Gestapo, by mistake, had entered my name
as Chief Reich Prosecutor on their records because, in the beginning,
I was in charge of the office as a deputy. But the main point seems to
be the following. I can see from the letter which is addressed to me,
that it is quite clear that I never had anything to do with the answer
to that letter. I see that with absolute certainty from the contents of
the letter.
Q. For how long after you assumed the office were you in charge of the
affairs of the Chief Reich Prosecutor?
A. Until 1 February 1939.
Q. Did it happen frequently later that you had to deputize for the
chief?
A. Yes, but not very frequently. The Chief Reich Prosecutor and his
permanent deputy appointed by the Minister, Reich Prosecutor Parisius,
of course, tried to arrange not to be absent at the same time. Only
if that did happen, I, as the oldest Reich prosecutor, had to take
care of affairs. I have to correct myself, that is to say, after Reich
Prosecutor Parisius, I was the oldest. Since the end of 1943, I was
no longer used to deputize. I was evacuated to Potsdam at that time
and Reich Prosecutor Weyersberg was the deputy of the Chief Reich
Prosecutor.
* * * * * * *
Q. * * * May I ask you now to direct your attention to Prosecution
Exhibit 159, which we have already mentioned? That is the Prosecution
Document NG-381.[533] It appears in document book 3-G, on page 22
of the German and page 19 of the English text. The subject of these
proceedings is the trial of Oscar Beck, for undermining the military
efficiency.
PRESIDING JUDGE BRAND: A correction, for the purposes of the
record. Exhibit 159 is in document book 3-D, at page 17 of the English.
DR. TIPP: Thank you.
The indictment appears on page 2 of the document, and following pages.
On page 4 there is the signature, “As deputy, Dr. Barnickel.” That is
to say, you signed that indictment. Apparently you did so when you were
deputizing for the chief who was away. At any rate, the document does
bear your signature. Would you please tell us why that indictment was
filed with the People’s Court?
DEFENDANT BARNICKEL: Because of the fact that I was so
overburdened with work at the time, I cannot remember any details of
the case. However, I can say for certain that the reason for filing the
indictment with the People’s Court was not--I am referring to the fact
which has been mentioned here before--that Beck was of mixed descent,
first degree. I think I have explained sufficiently my attitude to that
question in general, but I shall revert to that subject later. That
attitude of mine had remained the same for 10 years, and I did not
change it in 1943. The fact that it was a Vienna Ortsgruppenleiter who
denounced the man--that fact, too, is of no importance. I believe it is
hardly necessary for me to mention this, but for my department, too,
which submitted that case to me, it was of no importance either.
As I look at that indictment now, I am inclined to assume that we
wanted to arrive at a basic decision. The novel element in the
proceedings against Beck was the fact that he had criticized the
employment of women. That was a measure which only started in the first
weeks of 1943. It was designed to keep up production, and it had been
ordered by the Reich and not by the Party. I believe that all the
belligerent countries had introduced measures of that kind.
According to the date when the indictment was filed, it is possible
that this indictment of Beck was the first one of its kind. Not only
the legal questions decide what the basic element of such a case is,
but novel facts of a case also can constitute a basic element.
For the rest, ever since I had been acquainted with the Reich
prosecutor’s office, occasionally less significant cases, where one
was not expecting a very serious sentence and certainly not the death
sentence were indicted with the People’s Court if they were of a
certain importance for the whole country.
Q. Witness, you say, then, that you believe the indictment was filed
with the People’s Court because the case was important for the whole
country and because it contained a novel element?
A. Yes, that is possible.
Q. Does the form of the indictment show that it was the intention to
ask for the death sentence?
A. No, on no account. When the indictment was phrased, and in
particular because of the legal provisions which were cited, in all
that there is nothing to indicate that it was intended to ask for
the death sentence. On the contrary, and I should like to refer to
the enclosure, the letter which was sent with the indictment. It was
written on 30 July 1943, to the presiding judge of the People’s Court.
In the second paragraph of that letter, which is also signed by me, it
is expressly pointed out that under article 2 of the law of 20 December
1934, prosecution under that law had been ordered. That law was the
Insidious Acts Law, which has been mentioned here a great many times.
I should think that is a proof for the fact that we considered the
application of that law also possible, for otherwise it would have been
stupid to make reference to it. The maximum penalty for violation of
the Insidious Acts Law would have been a 5-year sentence. I think it is
possible that not only the question of the employment of women was the
cause for taking this case to the People’s Court, but also the question
of the application of the law in general.
Q. Witness, what was the senate with which your department cooperated
in the field of undermining military efficiency?
A. It was the fourth senate, and the presiding judge was Dr. Koehler,
whose name has been mentioned in a favorable context repeatedly here.
May I state that in 1944 Dr. Koehler was transferred from the People’s
Court to Stettin, because Freisler did not approve of him. The fourth
senate dealt mainly with high treason cases. Later on it also had to
deal with the undermining of military efficiency. However, when the
distribution of work was changed again, it had to return those cases
because there was dissatisfaction with the sentences that that senate
had passed.
* * * * * * *
PRESIDING JUDGE BRAND: I wonder if you could tell me what
was meant by the last phrase in that letter, where you say, “The
prosecution under article II of the law of 20 December 1934 has been
ordered as a precaution.” The part, “the prosecution has been ordered
as a precaution,” what did you mean by that?[534]
DEFENDANT BARNICKEL: Your Honor, by that I want to say that
that passage points out that if sentence was not to be passed on
the basis of undermining military efficiency, prosecution under the
Insidious Acts Law would be made.
Well, that was a case of a measure which might be taken, Your Honor.
Q. I understand. Was it the practice to appoint defense counsel even in
cases where the death penalty was not expected, in your court, in the
People’s Court?
A. Your Honor, at my time--I don’t know what happened later--but at my
time, every defendant who appeared before the People’s Court had to
have a defense counsel without exception. That had nothing to do with
the death penalty.
PRESIDING JUDGE BRAND: Thank you.
DR. TIPP: Witness, may I repeat my question. I may ask you to
tell us what were these general prerequisites for filing an indictment?
DEFENDANT BARNICKEL: Well, that question has been touched
upon repeatedly here. There had to be sufficient suspicion that
the defendant had committed the offense, that is to say, a certain
probability was sufficient.
Q. In connection with the undermining of military efficiency
particularly in this case, I think a further question is important. The
question, what did one mean when one said the undermining of military
efficiency in public?
A. According to the jurisdiction of the Supreme Reich Court and the
Supreme Military Court, military efficiency was undermined in public
even if statements had been made in front of only one person, if the
offender had to expect that that person would pass on his statements to
an indefinite number of other persons.
Q. These two prerequisites, therefore in your opinion in the Beck case,
did exist?
A. Yes.
Q. Now, one more question concerning the undermining of military
efficiency cases in general. Were all those cases dealt with by your
department?
A. To start with, yes; from the summer of 1943, however, certain
categories of cases were transferred to Department I, which
collaborated with Freisler’s senate. According to the distribution plan
of the People’s Court, Freisler could also deal with certain cases from
my department, at his senate.
Q. How long was it that your department dealt with those undermining of
military efficiency cases?
A. Until 31 December 1943. Then they were transferred to another
department.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG
ON THE LOPATA CASE[535]
_DIRECT EXAMINATION_
* * * * * * *
DR. KOESSL (counsel for defendant Rothaug): The Lopata case
was first tried by another court and not by the Special Court in
Nuernberg.[536] Please tell us what was the first court that tried his
case and whether that court was a Special Court.
DEFENDANT ROTHAUG: The case was tried for the first time on 28
April 1942, before the local court at Neumarkt in the Upper Palatinate.
The local court was not a Special Court.
Q. What were the facts which were the subject of the proceedings
against Lopata during the trial at Neumarkt?
A. The defendant had been charged only with having approached a woman
in a way which was sexually offensive, although that woman again and
again tried to get rid of him. He was also charged with irregular
behavior, which, however, in the course of developments played no
important part and that charge was dropped.
Q. Please tell us what was the personal description of the defendant
which was given by the local court at Neumarkt?
A. In the judgment, it is pointed out that the defendant looked well
groomed, but he was insolent, lazy, and he had been guilty of the
offense with which he was charged in a way, and I quote, “Which showed
an unheard of extent of shamelessness and insolence of which only a
member of the Polish nation would be capable.” However, that is a
statement made by the local court at Neumarkt.
Q. Did the local court at Neumarkt have anything to do with the Special
Court at Nuernberg?
A. Nothing. No.
Q. Was the judgment by the local court at Nuernberg upheld?
A. The judgment by the local court at Neumarkt was by decision of the
Reich Supreme Court of 14 July 1942 annulled by way of a nullity plea,
and the trial was transferred to the Special Court at Nuernberg.
Q. What was the criticism of the Supreme Reich Court in the judgment
passed by the Neumarkt local court?
A. The Reich Supreme Court criticized the fact that the local court
at Neumarkt, concerning certain generally known conditions which were
connected with wartime conditions, although that had been obvious in
the case in question, had not taken such conditions into consideration,
and therefore apparently had ignored the fact that the offense with
which the defendant had been charged also violated article IV of the
law against public enemies. For that reason, it was necessary to refer
the case to another court so that the case be examined from that point
of view, and if that should be found right, so that article IV of
the law against public enemies could be applied, if that were found
applicable. Further reasons for the decision which are given are that
the application of article IV of the law against public enemies would
mean that a considerably higher penalty could be pronounced, and that
for that reason the case would have to be tried again.
* * * * * * *
Q. In its opening statement the prosecution quoted the following
sentence from the judgment: “The inferiority of the defendant lies in
his character, and the reason for it evidently is that he belongs to
the subhuman race of the Poles.” Is that quotation correct?
A. Well, there is a typing error here which rather distorts matters
because actually it says in the judgment--it doesn’t say “the subhuman
race,” but it means the subhumanity of [Polnisches Untermenschentum],
and that is something essentially different. We have subhumanity in
Germany and we have developed our own laws against that and when we
speak of Polish subhumanity we do not mean the Polish people as such;
that is what we would have meant if we had spoken of the subhuman
Polish race, and for that idea and opinion there is a concrete reason.
In many cases we had found that among the Poles who had been brought to
Germany there was a considerable number of highly criminal types from
Poland. The agencies which dealt with getting labor from Poland did
not select properly and thereby created a great danger. We discovered
people who had been previously convicted for murder and had been
sentenced to penitentiary for life, but who on account of the outbreak
of war had been set free, and who had now come to Germany. That point
of view played a part in considering all these questions. That is to
say, we did not speak of the subhuman Polish race but we spoke of the
subhumanity in Poland.
PRESIDING JUDGE BRAND: May I interrupt, please? The question
of translation has arisen. The Tribunal would be glad to have a check
made by the prosecution as to the original document and the proper
translation of it. That will dispose of this entire matter.
MR. WOOLEYHAN: Yes, Your Honor.
DR. KOESSL: The originals of the files here--I don’t
know--probably the prosecution has the copy, and perhaps that copy also
has the mistake.
PRESIDING JUDGE BRAND: It is a question of what the document
says and it should be able to be ascertained with definiteness. The
suggestion that the document may have used the wrong word is not
satisfactory to us. We want to know what word was used in the original
document.[537] Go ahead to something else and straighten that out
afterward.
DR. KOESSL: Witness, at the trial before the Special Court at
Nuernberg, were any facts brought to light which were not mentioned by
the judgment passed at Neumarkt?
DEFENDANT ROTHAUG: That is clearly evident from the judgment.
In addition to the facts which had originally been established, a
further fact had been established according to which the defendant had
attacked the old people who were living on a lonely farm with a dung
fork and had exerted so much pressure on them that the only way for
them to save themselves was to unleash the dog.
When evaluating the character as a whole of the defendant, as the
judgment shows, that fact was taken into account. That fact in the last
analysis was decisive.
Q. Can you show that that point in particular was very decisive? Can
you show us that by quoting a passage from the original file?
A. That is shown by our attitude to the clemency question. In our
opinion on the clemency question we, without exception, repeated those
facts which had been decisive for us in deciding on the sentence. We
did not state other general points of view concerning the clemency
plea because we didn’t know them, and secondly, because we were of the
view that they didn’t affect us in any way. That brief opinion on the
clemency question says--
“The character of the defendant has been clearly described at
the trial, in particular also the fact that the defendant, apart
from the offense which in its execution was very grave, has also
made himself guilty of violent behavior toward his employer.”
In other words, it is made perfectly clear here that the last point of
view was decisive for us.
PRESIDING JUDGE BRAND: May I ask you a question to which the
answer, I think, could be brief? My notes show that the defendant was
sentenced to death for violation of articles 2, 3, and 4 of the law or
decree concerning Poles and Jews. Is there such a provision in your
judgment? You needn’t read it. Just tell me if that is in there.
DEFENDANT ROTHAUG: Yes.
PRESIDING JUDGE BRAND: Thank you.
DR. KOESSL: The witness Doebig said that the offense in his
view was not designed to prove that the offender was a public enemy.
Would you, therefore, please briefly summarize the points which led
you to assume that a very serious offense had been committed?
DEFENDANT ROTHAUG: The justification for our sentence can
be seen from the opinion given by the court, and that is before this
Tribunal. I cannot say any more. All I can add is, that specifically
for this case that is to say for the original case that had to be dealt
with, that is to say, for molesting the woman in a sexual way, there
was a decision from the Reich Supreme Court which stated an opinion
specifically in regard to this question and discussed it from its basic
angles, and that decision evidently was the cause for considering the
death sentence at all.
With us a further point of view was added and it was that decision that
was made available to the court.
* * * * * * *
PRESIDING JUDGE BRAND: I should like your professional
opinion. Was the nullity plea[538] involved in the Lopata case? I don’t
remember at the moment.
MR. WOOLEYHAN: Yes, Your Honor.
PRESIDING JUDGE BRAND: What is your best, honest judgment as
to whether or not if Lopata had been a racial German there would have
been a nullity plea and a direction from the Reich supreme court to
retry the case? What is your honest opinion about that?
DEFENDANT ROTHAUG: Mr. President, these two cases cannot be
compared with each other because the Reich Supreme Court in this case
stated its opinion on the basis that he was a Pole.
Q. Now, I am asking if Lopata had been a racial German, all other facts
being the same as they were in the Lopata case, is it your judgment
that the nullity plea would have been invoked and that the Reich
Supreme Court would have ordered the case sent back to you for another
trial? I should like your opinion on that.
A. Mr. President, this question is very interesting, but I cannot even
imagine that possibility, even theoretically, because the very elements
which are of the greatest importance could not be applied to a German.
PRESIDING JUDGE BRAND: That’s all I wanted to know.
* * * * * * *
F. Handling of Religious Matters
TRANSLATION OF DOCUMENT NG-630
PROSECUTION EXHIBIT 428
LETTER FROM DEFENDANT SCHLEGELBERGER TO CHIEF PUBLIC PROSECUTORS AND
SENIOR PUBLIC PROSECUTORS, 20 JULY 1935, CONCERNING THE “STRUGGLE
AGAINST POLITICAL CATHOLICISM”
The Reich Minister of Justice
V a 25 399
Berlin W8, 20 July 1935
Wilhelmstrasse 65
[Illegible Stamp]
[Handwritten] 2 copies sent to [illegible]
To: Messrs. Chief Public Prosecutors and Senior Public
Prosecutors
Subject: Struggle against political Catholicism
For your confidential information and notice, I enclose a copy of the
Prussian Ministerpraesident’s decree of 16 July 1935--St.M.I. 7905--to
the Oberpraesidenten and Regierungspraesidenten, etc.
I decree it to be the duty of all prosecuting authorities to cooperate
closely with the competent State Police and administrative authorities
in taking action--with the deliberation necessary to avoid mistakes but
also with the severity necessitated by the dangerous nature against all
manifestations of the efforts of political Catholicism to undermine the
unity of the State and create discord among the people, wherever they
appear without regard for the person or rank of the perpetrator.
[Handwritten remarks on left margin illegible; illegible signature.]
For this purpose, the application of the following laws will be found
particularly useful: Articles 130a, 131, 134a, 134b (as of 1 September
1935) Reich Criminal (Penal) Law; further, articles 1 and 2 of the law
against insidious attacks on the State and Party and for the protection
of Party uniforms of 20 December 1934[539] (Law Gazette I, p. 1269);
the decree of the Reichspraesident for the Protection of People and
State of 28 February 1933[540] (Law Gazette I, p. 83); the law against
the founding of new parties of 14 July 1933 (Law Gazette I, p. 479);
and the law against public collections of 5 January 1934 (Law Gazette
I, p. 1086).
The cases must be investigated with the utmost rapidity, so that
the punishment will follow the crime as quickly as possible. The
penalties called for at the trials shall be such as the national
sense of justice deems appropriate to the dangerous nature of these
intrigues against the State and people and the unscrupulousness of the
perpetrators.
A report must be made to me in quintuplicate in all cases where
proceedings of this type are initiated. At the close of the
investigation a concluding report on the incidents indicating the
measures to be taken will be submitted to me. In case of an indictment,
the bill of indictment, and later the sentence, will be submitted,
each in quintuplicate. If the sentence imposed is made the subject of
an appeal, a report must be made to me immediately, indicating the
probable result.
This circular decree will be published in the next number of “Deutsche
Justiz,” together with an extract from the decree communicated below,
issued by the Prussian Ministerpraesident Goering on 16 July 1935.
As deputy:
[Signed] DR. SCHLEGELBERGER
PARTIAL TRANSLATION OF DOCUMENT NG-1808
PROSECUTION EXHIBIT 557
EXTRACTS FROM THE OFFICIAL FILES IN THE CASE AGAINST LUITPOLD SCHOSSER,
A CATHOLIC PRIEST, SENTENCED ON 19 DECEMBER 1942, UNDER THE LAW AGAINST
INSIDIOUS ATTACKS ON STATE AND PARTY, BY A SPECIAL COURT HEADED BY
DEFENDANT ROTHAUG
National Socialist German Workers Party
Kreisleitung Amberg-Sulzbach (Gau Bayrische Ostmark)
Bayreuth
Daily newspaper of the
district: Amberg-Sulzbacher
Zeitung
Office and Editor’s Office Amberg
Regierungsstrasse 1
Phone No. 6
Amberg, 12 June 1942
Kreis Office
Amberg, Kaiser Wilhelmring 9
Telephones: 346 and 325
Banking accounts:
County Savings Bank Amberg, Account No. 1501
Municipal Savings Bank Amberg, Account No. 150
The Kreisleiter Dr. K./St.
Journal No. 1156/42
(to be quoted in replies)
To the Public Prosecutor at the Special Court, Nuernberg-Fuerth
[Stamp]
Received: 13 June 1942
Prosecutor’s Office
Nuernberg-Fuerth 1c
Subject: Charge against the priest Luitpold Schosser, born at
Burghausen/Lower Bavaria, 28 April 1909, at Vilseck since
27 March 1939
On 17 May 1942 the Polish farm laborer, Martin Strysow, died in
hospital at Vilseck. The priest Schosser announced in church after
the usual Sunday evening May devotion that the transportation to the
cemetery and Last Sacrament of the Pole would take place immediately
afterward. Induced by this announcement, about 50 people, mainly women
and children, participated in the funeral procession and praying
loudly, as usual, rendered last honors to the Pole. A large number of
the population took offense at this incident.
By this action the priest Schosser has malevolently criticised
the national political demands of the National Socialist State.
Furthermore, he has debased the dignity of the German people in an
incredible way and has caused a great number of fellow Germans to
behave in an undignified manner.
Judging from the usual attitude of the priest Schosser it may be
expected that after having been informed of the charges made against
him, he will try to influence possible witnesses. Therefore, I request
his immediate arrest.
Heil Hitler!
[Signed] DR. KOLB
Oberbereichsleiter
[Rank in Nazi Party Leadership Corps]
[Stamp]
National Socialist Workers Party
Kreis Amberg-Sulzbach
[Handwritten]
To the President of the Special Court with the request to issue a
warrant of arrest for an offense against the law against insidious
attacks on State and Party.
Nuernberg, 15 June 1942
[Signed] SCHROEDER
Chief Public Prosecutor
Secret State Police
State Police Office Regensburg
Regensburg, 18 June 1942
[Stamp]
Received: 19 June 1942
Public Prosecutor’s Office
Nuernberg-Fuerth
B. No. 1854/42 II B 1.
With 1 file returned
To the Chief Public Prosecutor
as Chief of the Prosecuting
Authority at the Special Court,
Nuernberg
As I request you to gather from the enclosed reports, the case has
already been dealt with here. The offense committed by Schosser was
handled here in such a way that he was under police arrest from 1–15
June 1942. For that reason I have desisted from carrying out the
warrant of arrest against Schosser for the time being. In case the
warrant of arrest should nevertheless be executed, I request further
information.
BY ORDER:
[handwritten]
[Signed] Alt
[Stamp]
I. Make note of dispatch.
II. With file.
Secret State Police
State Police Office
Regensburg
Received: 24 June 1942
No. 1854/42 B 1
[Handwritten] To the Secret State Police, State Police Office
Regensburg, repeating my request of 15 June 1942.
Local Court
2 July 1942
Weiden (Oberpfalz)
[Stamp]
Nuernberg, 20 June 1942
Chief Public Prosecutor
[Signed] SCHROEDER
Arrest! Very urgent
Copy
1 c Sg 948/42.
Received: 21 August 1942
District Court Nuernberg-Fuerth
Criminal Cases
St.
To the President of the Special Court,
Nuernberg,
With the request to return the files, and to suspend the warrant of
arrest, and order the release of the accused.
Nuernberg, 21 August 1942
The Chief Public Prosecutor
as Chief of the Prosecuting Authority
at the Special Court
BY ORDER:
[Signed] HOFMANN
I. At the request of the Chief Public Prosecutor the warrant of arrest
of the President of the Special Court of 15 June 1942 has been revoked,
article 126 Criminal Procedure.
II. Order for release!
To the office of the Special Court--give order by telephone to
release the prisoner.
III. To the Chief Public Prosecutor--time of release from arrest--13.15
hours.
Nuernberg, 21 August 1942
The President of the Special Court
[Signed] DR. FERBER
Acting President
To II
Telephone conversation: Court Jail Weiden;
Telephone Charges: 3 Reichsmark
21 August 1942
Wi.
Received: 21 August 1942
Public Prosecutor’s Office
Nuernberg-Fuerth
Certified.
Nuernberg, 27 August 1942
Public Prosecution Nuernberg-Fuerth
[Signed] HUEMMER, Chief Clerk
The Registrar
[Stamp]
Chief Public Prosecutor
Nuernberg-Fuerth
Files for cases concerning insidious attacks on State and Party
Sg No. /194
_Verdict_
In the name of the German People
The Special Court for the district of the Nuernberg Court of Appeal
at the Nuernberg-Fuerth District Court rules in the criminal case,
against--on account of--in public session as follows:
[Handwritten]
Schosser, Luitpold, born in Burghausen, 28 April 1909, single, Catholic
priest at Vilseck, at present in detention pending trial is to be
punished by imprisonment of 1 year and 3 months and costs on account
of two compound offenses, namely misusing the pulpit, as well as
[violation of] article 2, paragraph 1 of the law against insidious
attacks on State and Party,[541] committed by attacks against the
National Socialist Reich in the religious-political sphere.
The 3 months of police arrest and of detention pending trial will be
taken into consideration.
[Signed] ROTHAUG
DR. GROS
GROBEN
TRANSLATION OF DOCUMENT NG-770
PROSECUTION EXHIBIT 291
CIRCULAR OF THE REICH MINISTER OF JUSTICE, SIGNED BY DEFENDANT ENGERT,
TO THE ATTORNEYS GENERAL, 12 DECEMBER 1944, REDEFINING LIMITATIONS ON
DIVINE SERVICES FOR PRISONERS[542]
The Reich Minister for Justice
Berlin W 8, 12 December 1944
Wilhelmstrasse 65
To the Attorneys General (except Prague)
Subject: Adjustments in the application of the execution of
sentences and detention custody (administrative ordinance)
of 29 September 1944 “Deutsche Justiz” [German Justice]
page 270.
Copies to the independent institutions, the district court prisons and
other court prisons for early distribution.
There is reason to believe that the regulation under No. 4 of the
Administrative Ordinance of 29 September 1944--“Deutsche Justiz”,
page 270--concerning adjustments due to the war in the application
of penalties and detention custody, is being misinterpreted. The
regulation that divine services for prisoners and persons in custody
will no longer be held is to be interpreted from the context. As the
title already indicates, the measures of the ordinance are due to the
war. The preamble to the ordinance already defines the purpose of the
adjustment of the application of the ordinance due to total war. This
purpose also restricts the application of the regulation under No. 4.
Divine services are only temporarily canceled and only then where they
are incompatible with the demands of total war.
Divine services at the present time are incompatible with the demands
of total war where and insofar as they necessitate time which is
essential to work for the waging of total war. Nor are they compatible
when and where the crowding of prisoners or detainees during divine
service constitutes a danger in itself or mixing the congregation of
the institution’s church or in view of the small number and the age
of the supervisory staff, it represents a danger to the institution’s
security and thereby continuous production.
Insofar, however, as the time needed for the requirements of total
war is not interfered with by the hours of divine services and the
maintenance of the institution’s safety can be guaranteed, divine
services may also be held in future especially at Christmas and other
sacred holidays.
BY ORDER:
[Typed] ENGERT
Certified: [Signed] LORENZ
Clerk
[Stamp] Reich Ministry of Justice
EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS
FATHER LUITPOLD SCHOSSER[543] CONCERNING HIS
ARRESTS AND TRIAL
_DIRECT EXAMINATION_
MR. WOOLEYHAN: Witness, would you please state your full name
and your profession?
WITNESS SCHOSSER: My name is Luitpold Schosser; I am a
Catholic priest.
Q. Father, where is your parish?
A. My present parish is at Wolfseck near Regensburg.
Q. Has that been your parish for some time in the past?
A. That has been my parish for 3 years and 3 months.
Q. Where was your parish before that?
A. Before my trial, my parish was at Vilseck.
Q. Father, where were you born and when?
A. I was born on 28 April 1909 at Bernhausen, in the Holledau [Central
Bavaria].
Q. What education did you have, and where was it?
A. For 4 years I attended grammar school in my own home village
Hadersbach. Then, for 9 years I went to the high school at Straubing.
Then, for 5 years I attended the university at Innsbruck, and for 1
year the Theological Seminary at Regensburg. In 1934 I was consecrated
priest. Then, I was assistant vicar in several places. At the end,
I was at Vilseck. Then my trial started, and after my trial from 1
February 1944 I have been a priest at Wolfseck.
Q. Father, while you were a priest at Vilseck, were you ever arrested
and imprisoned?
A. At Vilseck, I was arrested twice, and at Regensburg, I was arrested
once, because after my arrest I was not allowed to go back to Vilseck.
Q. Would you please state the dates, so far as you remember, of each
time that you were arrested and imprisoned?
A. Yes. For the first time I was arrested on 1 June 1942, and I was
kept in prison for 14 days by the police. That warrant was filled in by
the Gestapo. After I had been imprisoned for 2 weeks, I was released.
In the meantime, a second warrant for my arrest was issued by the
Special Court of Nuernberg, and on 1 July I was arrested again. Then,
until 21 August--that is for 7 weeks, I was in custody pending trial
at Weiden in the district court prison of Weiden. Then, again, I was
released and a few days later another warrant for my arrest was issued
again by the Special Court of Nuernberg. Then, I had been in prison
until 18 December 1943. For the third time I was arrested, that was at
Regensburg--and my arrest was made by the Gestapo.
So, altogether, I was arrested three times; twice at Vilseck and once
at Regensburg.
Q. Father, at any time during any of these three arrests, did the
police ever tell you who had signed the warrant for your arrest?
A. Yes, when I was arrested the second time, the police commissioner of
Vilseck told me that the warrant was issued by Rothaug from the Special
Court of Nuernberg.
Q. After you had been arrested, Father, and imprisoned those three
times that you describe, you also mentioned a trial. Were you ever
indicted and tried before a court?
A. My trial took place on 18 December, that is on 19 December 1942, and
the trial took place before the Special Court of Nuernberg at Amberg.
The trial took place because of a [Heimtuecke] insidious attack, during
a sermon which I had made 15 months before at Vilseck.
Q. Father, you state that you were tried on 19 December 1942, by the
Special Court of Nuernberg, but that the trial took place in Amberg. Is
that correct?
A. Yes, that is correct; it took place at Amberg, at the town hall.
Q. Would you please repeat again, so far as you know, the violation of
law for which you were indicted and tried?
A. Well, the first arrest originated from the burial of a dead Pole
who died at Vilseck and was sent over to the morgue from the hospital
as was customary there with the dead. The dead Pole, as every other
Catholic, was transported from the hospital to the morgue, therefore,
the church had given him the sacrament in the morning. In the morning
of this day he asked for a priest, and he was prepared for death.
During the afternoon, then, he died. In the evening before we had our
evening vespers--that was on a Sunday--the attendant of the morgue came
to see me, and he informed me that I had to order the transport of this
dead Pole from the hospital to the morgue and would have to take over
the arrangements. I asked him whether it was permissible for me to do
that, and he said, “Yes; the Magistrate has ordered that you do it.”
Therefore, I had no further doubts, and I went to the morgue, that is,
to the hospital, and I ordered the transport which was sponsored by the
church.
Before I made my sermon at the evening vespers, as is customary at
every transport of the dead, I communicated to my parish people that
later on a dead Pole would be transported from the hospital to the
morgue, because the people want to know who is the dead, who is in the
coffin in order to be able to know whether they have any obligation
to attend the funeral or not. Of course, as it was a Sunday, there
were quite a number of people in the church, comparatively, and quite
a number of them attended the funeral, because thus they had an
opportunity to go to the cemetery, which was situated outside of our
village.
Now, because of this communicating the fact to the people, I was
charged mainly by the Special Court. They considered it an invitation,
that is to say, that I intentionally invited the population to attend
the transport of the dead Pole. That was the main charge made against
me by the Special Court of Nuernberg.
They said that at this occasion, as the president said during the
trial, I was said to have expressed religious feelings and used them
intentionally in order to sabotage the directives of the State.
Q. Father, may I interrupt, please? You state that at the trial, the
main charges, so far as you know, were this conducting of a funeral
for the Pole and a sermon that you preached the previous year. Is that
correct?
A. Well, the main charge in my trial was the sermon. That was the real
reason for the trial, during the trial, the sermon was not so much
dealt with but rather this whole matter with the Pole was dragged into
the trial. In each detail it was talked about--just about this matter
of having had the Pole transported. I was considered an insidious
priest, and this was told to the public.
* * * * * * *
Q. Now, Father, the sermon that you delivered on the occasion in 1941,
to which the indictment referred, what text was that sermon?
A. Well, the text was the sermon of the seventh Sunday after Pentecost.
It is read every year. It is in Chapter VII of Matthew. “Beware of
false prophets who walk around in the cloak of lambs but who in their
interior are roaring wolves. You will recognize them from their
cloaks.” That was the beginning of my sermon.
Q. Father, was this verse from Matthew the text of the sermon on that
day every year?
A. Every year we use the same text.
Q. Now, Father, of the witnesses that were called against you--I
believe you said there were four or five, which was it?
A. There were four witnesses from Vilseck and the Gestapo official Alt,
but during the trial he didn’t talk at all.
Q. Well, of those four witnesses that did speak at the trial for the
prosecution, how many of them heard your sermon of the preceding year,
on the seventh Sunday after Whitsuntide?
A. Two witnesses had heard my sermon. It was the wife of the
Ortsgruppenleiter and the newspaper distributor Meyer Johann.
Q. What did the newspaper distributor say or testify about your sermon?
A. During the interrogation by the Gestapo official, he declared
that my preaching had been aggressive; he said that my sermon was an
incitement.
Q. Father, you said that during the Gestapo investigation, he said that
your sermon was aggressive and inciting, but that during the trial he
denied that. Is that true?
A. Yes, during the trial he denied that he had said that the sermon
had been an inciting sermon. This expression “Hetzpredigt,” [inciting
sermon] he did not use. That is what he said during the trial.
Q. Describe, Father, the testimony of the other witness that had heard
your sermon; namely, the wife of the mayor and Ortsgruppenleiter.
A. Well, the wife of the Ortsgruppenleiter had only referred, during
the trial, to what she had told the Gestapo official, and the other
witness, Kuffer, brought forward merely personal matters in order to
paint me as an insidious priest.
Q. But this last witness that you speak of, Kuffer, had not heard your
sermon, had he?
A. No, he had not heard my sermon.
Q. But the mayor’s wife had, is that correct?
A. Yes, the wife of the Ortsgruppenleiter attended the sermon and heard
it.
Q. Well, Father, at your trial did the mayor’s wife testify or was the
statement she had given the Gestapo only introduced?
A. No, the wife of the mayor only answered questions put to her by the
presiding judge. She, herself didn’t say much.
Q. During the trial, Father, so far as you remember having observed it,
will you please describe Rothaug’s conduct and words and statements
from the bench.
A. Right after my trial, in the cell of my prison, I took some
stenographic notes concerning the remarks made by the presiding judge,
Dr. Rothaug, and on the strength of those stenographic notes which I
have here on my table, I can make the following statement concerning
the trial. First of all, the presiding judge referred to my education
and there he became very personal right away and charged me with the
fact that my whole theological education was rather backward, and
that it would have been much better if I had studied something other
than theology. He said that I only observed the whole development of
national socialism as a bystander looking from the window. During my
trial, the Hitler Youth passed the town hall, and at that occasion
the presiding judge made the remark, “those down there, the Hitler
Youth, that is the real life.” Later on, in the course of the trial,
the presiding judge very often made ridiculing remarks concerning the
Catholic religion, and made insidious remarks concerning the profession
of priest. Some of these remarks, I can tell you literally, and they
were the following: “You Catholics allege that only Catholics will
reach heaven, all others will be in hell.” That is an assumption which
no Catholic will ever make. Then, he said, and this remark was repeated
again and again, “Not water gives value to man, but rather the blood.”
And, of course, the water he referred to was the Catholic sacrificial
water, or the water on the head--sanctifying water. For the National
Socialist ideology has to be given to the child already with the milk
of his mother; and there it appears my parents had failed to educate me
in this direction. Those were merely personal remarks.
Q. Father, may I interrupt a moment. Are you saying that the presiding
judge, Rothaug, made the remarks, such as you have just described, to
you from the bench, during the trial?
A. Yes, from the bench, during the trial. These remarks, I may say that
after all they were not only meant for me, myself, but for the whole
profession of priesthood.
Q. Father, you have said that in your indictment, the main charge was
one of malicious statements made during that sermon in 1941, but you
also said that during your trial Rothaug said much more about the
business of your giving a funeral service to the Pole. Can you give any
facts to explain why you say that?
A. Yes. Special Court Judge Rothaug dragged two things mainly into
this trial. First of all, the removal of crosses from the schools in
the district of Vilseck, and then this transporting of the dead Pole
from the hospital to the morgue. If I may add something concerning this
matter of transferring the dead Pole; there again I can give you some
more details.
Q. Yes, Father, I would be very interested in what Rothaug said about
your transporting the dead Pole.
A. The whole courtroom was fully occupied. I, as well as the people
attending the trial, was quite astonished especially by Rothaug going
into the details concerning this Pole matter. He came back again and
again on this matter in order to prove to me that I really had made
insidious statements; and that I had had insidious and bad intentions,
and on this occasion Rothaug showed a terrible hatred against the
Polish people.
* * * * * * *
Q. Father, after your trial was concluded, what sentence did you
receive?
A. I was sentenced, on the grounds of insidious attacks, to 15 months
of prison, and 3 months of custody pending trial were counted.
Q. Father, after the ceremony and sermon which you preached on the
seventh Sunday after Whitsunday 1941, how long was it from then until
your trial, approximately?
A. About 15 months.
Q. Then, for 15 months after you preached the sermon for which you were
tried as having made insidious utterances, nothing was done to you by
the way of trial; is that correct?
A. No, during these 15 months nothing happened.
Q. One moment, Father, please. Fifteen months after your sermon, during
which nothing was done, you were tried, and part of the case was the
funeral sermon you conducted for a Pole, is that correct?
A. May I ask you to repeat the question, please?
Q. Father, 15 months after your sermon, during your trial, your conduct
of a funeral for a Pole was a part of the trial, wasn’t it?
A. Yes, during the trial.
Q. Now, Father, when was this funeral for the Pole that you conducted?
A. That was on the third Sunday in the month of May. I think it must be
about 17 May 1942.
Q. In other words, Father, the sermon that you preached, on which the
main count of your indictment was based, was 15 months before your
trial, and the Polish funeral was 2 or 3 months before your trial? Is
that correct?
A. Well, the funeral of the Pole was in May 1942, and the trial took
place in December 1942. That would be about 6 months.
MR. WOOLEYHAN: There is no further direct examination, Your
Honor.
PRESIDING JUDGE MARSHALL: Does any defense counsel desire to
cross-examine this witness?
DR. KOESSL (counsel for defendant Rothaug): I ask to examine
the witness.
THE PRESIDENT: You may proceed.
_CROSS-EXAMINATION_
DR. KOESSL: Witness, for the first time you were arrested on 1
June 1942, is that correct?
A. Yes.
Q. You said before that you made the church sponsored transfer [to the
cemetery] of the Pole, and that you were arrested because of that. Was
this church sponsored transfer of Poles prohibited?
A. It was not prohibited for Poles, but I was charged with only the
publicizing of this fact.
Q. I could not quite get that, unfortunately. May I ask you to repeat
what you were charged with?
A. I was charged with the fact of having publicized this church
sponsored transfer which is usual at Vilseck, and that I made it
public. That was explained as if I had invited and even asked the
population to attend the funeral.
Q. In other words, you were not charged with having transferred this
Pole and sponsored it by the church, but rather, it was the fact that
you had violated the State directives, is that correct?
A. Yes.
Q. The first point was dealt with only by the Gestapo?
A. Yes.
Q. In other words, Rothaug had nothing to do with that?
A. No, he had nothing to do with that.
Q. However, you were charged with other violations of State directives,
were you not? Is that correct?
A. No, that is not correct. The Ortsgruppenleiter Stubenvoll had
informed the Kreisleiter, Dr. Kolb, and he raised the point again
because this sentence of 2 weeks was not enough for him, and that is
the way this matter came to the Special Court in Nuernberg, and then it
went on.
Q. Well, did this matter lead to a trial then?
A. No. As far as I know--
Q. Please go on.
A. As far as I know from my lawyer, this matter was diverted by Berlin,
and that is why the second time, on 21 August, I was released again.
Q. But then there were other denunciations against you?
A. Yes, later on. After I had been released for the first time and when
I was in custody pending trial for the second time, only then was this
sermon brought to the knowledge of the [Nuernberg] Special Court.
Q. It seems that you were also denounced by the Ortsgruppenleiter for
other activities.
A. Well, no, I was not denounced. I was only charged with them and
reprimanded, but they had nothing to do with the court.
Q. Just a little bit slower, please.
A. At Vilseck, I only discharged my general duties as a priest.
Q. But your activities at school were talked about and other activities
which were not compatible with State directives at that time?
A. Well, I have to object to that. That was only the opinion of
Stubenvoll. Only in his opinion were those activities against the
State. I never violated any State directives in that matter. I only
stuck to my church directives.
Q. However, your youth organization and your school activity, what did
they object to in those matters?
A. Well, for instance, as far as the pupils of the vocational school
were concerned, I gathered them for education after the lessons.
The Ortsgruppenleiter Stubenvoll didn’t like that, and then he made
quite bad and mean difficulties for me. He threatened that I would be
charged. Furthermore, I gathered the adult youth every 3 or 4 weeks in
order to have discussions and a little lecture. There again, Stubenvoll
sent informers, in spite of the fact that he had no right whatsoever to
intervene in church matters.
Q. You speak of intervening in church matters. Can you confirm that
as a result of the centuries-old tension between church and state in
Germany, there were penalties for the misuse of the priest’s profession
which were as old and which had been issued centuries ago?
A. I know only the “Pulpit Article,” and that had existed for quite
some time.[544] Otherwise, I don’t know anything.
Q. Well do you know for instance, the Protizio of common law? You don’t
know that?
A. No.
Q. The Protizio.
A. No, I don’t know that.
Q. But, you know that the “Pulpit Article” was issued during Bismarck’s
rule; that is 1871, is that correct?
A. Yes. Even during the trial, Rothaug made a remark about it to me.
* * * * * * *
Q. Now, on the strength of that sermon at that time, you gave as a
basis, chapter 7 of the Matthew’s Evangelical?
A. Yes.
Q. Was it the fact that this text was made the basis for this sermon
which was objected to?
A. Well, that could not be objected to because I had no power over
that. I had to take that text.
Q. Is it correct if I assume that, of course, the words which you
joined to that chapter were objected to?
A. Well, yes. The whole sermon, as I said, was explained by the witness
in a way as if I meant by the false prophets the leading personalities
of Germany of that day.
Q. Did you mean them at that time?
A. I spoke in quite a general way, and I left to the people what they
wanted to understand from my sermon.
Q. Well, did you mean the leading personalities? I would like to know
that.
A. I spoke in a quite general way on these matters of ideology, and I
left it to everybody. If I meant somebody then, of course, I meant,
first of all, Rosenberg who actually was the man who was involved with
the National Socialist ideology versus religion, by his book.
Q. In other words, the assumption of the public prosecutor was correct?
A. It was an assumption and they couldn’t prove it.
* * * * * * *
Q. Now, witness, you have admitted that the newspaper distributor
Geyer expressly stated that your sermon was very aggressive.
A. Yes, the witness Geyer in the minutes taken by the Gestapo had
testified that, and they had written it down.
Q. Also, the wife of the Ortsgruppenleiter, according to your own
testimony, had testified that in church she had objected to what you
said?
A. Yes.
Q. Was the wife of the Ortsgruppenleiter a woman who went to church
very often?
A. Yes, relatively she went rather often to church. But one gained the
impression--and also the other people who went to church confirmed
this--that she went to church because she wanted to hear everything
that was said in church.
Q. This woman, did she go to church before the time her husband became
an Ortsgruppenleiter?
A. Yes, also during that period already, Frau Stubenvoll went to church
regularly.
Q. And now you assume that this woman suddenly went to church only as
an informer?
A. That was the general opinion in the village; it was not only my
opinion.
Q. You have admitted that when Rothaug questioned this woman he
generally stuck to what she had testified before the Gestapo, that is,
as a line for his questioning.
A. Yes.
Q. Furthermore, you said that he asked leading questions?
A. He submitted it to her in a way that she could only answer yes or
no in a very easy way. That was the impression the public gained. My
family was there partly.
Q. However, this woman had already told all that. How can you say that
Rothaug put leading questions to that woman and told her what she was
to say?
A. Because in her testimony she was rather uncertain.
Q. Why did she suddenly get uncertain in her answers if she had already
told the Gestapo the very same things?
A. Between the questioning by the Gestapo in August and the questioning
during the trial in December there was quite a period of time, and Frau
Stubenvoll didn’t have a good memory of what she had stated at that
time. This impression my defense counsel gained, also.
Q. In other words, the first statements of this woman were apparently
under the impression of your sermons, weren’t they?
A. Well, only what she may have stated to the Gestapo. During the
trial, from her own knowledge, she didn’t speak too much. She only
answered.
Q. Did you ever see a witness who does anything else than answer
questions?
A. Well, the first witness, Stubenvoll--he just spoke and he told
and reported everything he knew against me though he didn’t get any
questions to that effect at all.
Q. But this man probably, on the strength of the Code of Criminal
Procedure was summoned to explain what he knew. Can you remember that?
A. I cannot remember well whether he was summoned to do just that. He
started to speak against me.
Q. Now, you mentioned the fact that Rothaug had alleged that in your
tender youth your parents had forgotten to give you the education of a
National Socialist.
A. At that time I was much older, but indirectly this came as a hint
concerning my parents, and my brother confirmed that to me and the
young lady who attended the trial, that he even hinted at my parents
just when he spoke of education, of education from the tender youth
onward.
* * * * * * *
Q. Witness, the entire question of the burial of the Pole was mentioned
only because, apparently, it was contained in the files, and there it
was used as further evidence of your attitude of opposition to the
State?
A. These files, however, had nothing to do with the actual matter
charged in the trial.
Q. However, it was further evidence of your entire attitude toward the
State at that time?
A. Yes, that is how the presiding judge interpreted it and also
expressed it.
Q. How long did the whole trial take?
A. From about 8 o’clock until 1:30 in the afternoon.
DR. KOESSL: I have no further questions. Thank you.
* * * * * * *
EXAMINATION BY THE TRIBUNAL
PRESIDING JUDGE MARSHALL: I understand that your testimony now
is that the sermon referred to in your testimony was preached on the
third Sunday in July of the year 1941. Is that correct?
WITNESS SCHOSSER: I can now tell you the exact date. It was 20
July 1941.
Q. I understand you to say that from the time of the preaching of that
sermon a period of 15 months elapsed during which nothing happened. Is
that correct?
A. Fifteen months passed until the trial. About a year later there was
the denunciation because of this transfer of the Pole.
Q. About a year elapsed, then, before you were arrested, and then 3 or
4 months after that until the trial took place, is that correct?
A. Yes, that is how it was.
PRESIDING JUDGE MARSHALL: Very well.
MR. WOOLEYHAN: May the witness be excused, Your Honor?
PRESIDING JUDGE MARSHALL: The witness may be excused.
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG
CONCERNING THE CASE OF FATHER LUITPOLD
SCHOSSER[545]
_DIRECT EXAMINATION_
* * * * *
DR. KOESSL (counsel for defendant Rothaug): I want to talk
to you about the Schosser case, S-c-h-o-s-s-e-r. The Schosser case
is mentioned in the English transcript on page 1743 by the witness
Ferber;[546] and in the English transcript on page 3021 through 3066
by the witness Schosser. Witness, in this case the main charge against
you is that you displayed special initiative. In addition to that the
charge is made repeatedly that Schosser was prosecuted because he
buried a Pole. Between what proceedings does one have to distinguish
when the name Schosser is mentioned?
DEFENDANT ROTHAUG: This is a case of two proceedings, in fact.
The first case had to do with the funeral of a Pole, but I want to
state right now that naturally the funeral itself was not considered
a punishable offense. That is the more recent case. Then, another
proceeding is of importance here which has to do with the sermon on a
Sunday in church. That case, the first case, in connection with the
funeral of a Pole did not lead to a main trial or a sentence, but this
sermon on the Sunday did. Those are the first things between which one
has to distinguish, because in this connection the charge is made that
I had started or initiated the second case after I had failed with
the first one; and my aim is now to prove to the Court by submitting
evidence, submitting documents, that I was not the initiator in this
case, and in general, I object against that charge.
Q. Did you also deal with the first case that you find in the file
before you? Look at page 6 of the file attached to the main file. It is
the case SG-948, from 1942.
A. There are two cases, and it would probably be helpful to mention
the file designations to avoid confusion. The first case--the case of
the funeral of the Pole, if you want to call it that--has the file
designation 1-C SG 948, from the year 1942.
Q. What was the cause for that case?
A. That case was initiated on the basis of a denunciation which the
Kreisleiter of Amberg on 12 June 1942 sent to the public prosecutor
at the Special Court Nuernberg-Fuerth. In this report it is set forth
that, by the behavior of the accused Schosser in church, particularly
by making an announcement about the funeral, and by guiding people to
the cemetery, the German population to a far-reaching extent was caused
to attend the funeral; and that that behavior was considered an offense
against the measures which were prevailing at the time concerning the
separation between Germans and Polish people.
Q. What did the senior public prosecutor do?
A. In this connection it may be necessary to point out that there was
a definite regulation which I find in the official gazette for the
diocese at Regensburg, published by the bishop’s office, Regensburg.
In this publication, periodical, is a reprint of a decree, an official
decree, concerning the spiritual care of civilian workers of Polish
nationality employed in Germany. The bishop’s office reprints that
decree by the Reich Defense Commissioner in the defense districts 7
and 13. Our area was in that district and this was published for the
information of the priests. The decree deals in detail with everything
that had to be done. Figure 5 is of importance. It says that the
interment of Polish civilian workers, male or female, can be taken care
of by German priests. Participation of the German population has to be
reduced to the absolutely necessary minimum. No sermon may be held.
That decree contains eight sections. I do not know if the remainder
is interesting to the Tribunal. I could just refer to them if it is
desired.
Q. If the Court is interested, will you please refer to them.
PRESIDING JUDGE BRAND: You may.
DEFENDANT ROTHAUG: First, on figure 1, it is stated that
participation of civilian workers of Polish nationality in the church
services of the German population is prohibited. Then it is stipulated
that church services for Polish workers, male or female, have to
be conducted separately. Where there aren’t enough Poles living,
individual spiritual care is permitted, but under all circumstances it
should be avoided that Poles and Germans should be together in the same
room for that purpose. Services should only be conducted in the German
or the Latin language. Publication of newspapers, periodicals, or
Sunday magazines in the Polish language is prohibited. The priests had
to restrict themselves just to the spiritual care of the Polish people.
It ends with the words as follows: It is expected that the German
priests should always be conscious of being Germans and of the duties
arising from that fact and that offenses will be punishable.
DR. KOESSL: Was it made clear whether Schosser knew anything
about that regulation?
DEFENDANT ROTHAUG: That, at first, could not be seen from the
report received, but after he was interrogated, he referred to the fact
that he had not known anything about all these circumstances and that
that was what had got him into this trouble.
Q. Now, we want to find out what happened after that report was made.
A. It is first asserted here that I had commissioned Ferber, or that
I had told Ferber that he should issue an arrest warrant, but Ferber
had told me that he did not know what reasons to give for it and that
subsequently I had handled the matter myself with a vicious remark and
had issued the arrest warrant. The background history of that arrest
warrant seems very dubious, but I don’t think it necessary to enter
into that. On 15 June 1942 I issued the arrest warrant and that arrest
warrant was based upon article 2, paragraph 1 of the insidious acts
law, and article 130a of the Penal Code. In the case of this article
130a of the Penal Code, we were concerned with the so-called Pulpit
Article, the offense of abusing the pulpit. It is of importance that
that article alone which would have supported the proceedings, is
a regulation which has nothing to do with national socialism, but
is an article which emanates from Bismarck’s time, the time of the
“Kulturkampf” [cultural struggle] in Germany, and the then liberal
democracy factions in Germany brought it about against clericalism.
This concept is found in article 130a. The arrest as far as facts
were concerned was not based upon the circumstances that Schosser
conducted that funeral for the Pole, but because as one could assume,
and certainly can assume today, but on his knowledge of the German
regulations and provisions and on announcing the intended funeral, and
the transfer of the body from the morgue to the cemetery in order to
persuade the German population to a far-reaching extent to participate,
and therefore, to indirectly demonstrate its opposition against the
regulations of the State. The funeral itself is not a matter for the
church, but a matter for the State for the government of Germany,
and the clergymen are only permitted to participate in the funeral,
and to perform the duties commensurate with religious custom, to say
the prayers, and everything that belongs with it. But the funeral
was actually carried out by the municipal office. The discussion of
such a matter and the announcement, conscious of the fact that it
would cause a disturbance among the population, that was against the
provisions of article 130a; and if this is connected with the intention
to demonstrate opposition against measures of the State, which was
certainly the case here, then the prerequisites required by law are
complied with, and I do not know of anything further to investigate;
but if all these elements are there, I have the obligation to issue the
arrest warrant, and on that basis I did.
Q. Now, the witness Schosser has pointed out that he had already been
arrested by the Gestapo, and that at that time he had been punished; he
had been sentenced to 14 days. Can you determine from the files whether
you issued the warrant of arrest before you knew of the police measures
against Schosser?
A. From the files it can be seen without doubt that when I issued the
warrant of arrest, I did not know anything about the occurrences at the
Gestapo office of Regensburg which found its climax in the protective
custody imposed upon Schosser for 14 days. That can be seen from the
following.
Q. When did you receive information about that from the Gestapo?
A. I was just going to say that because you have already asked me. On
15 June 1942 the prosecution sent the arrest warrant to the Secret
State Police at Regensburg. Subsequently, on 18 June 1942 the Secret
State Police Regensburg replied with the information that it did not
want to carry out the arrest at that time because a police measure
was imposed, that is to say, the protective custody for 14 days on
Schosser and returned the files together with the arrest warrant to
the senior public prosecutor and that is the way he was informed in
connection with that funeral. The Secret State Police already had taken
measures. I was not informed about these facts, as can be seen from the
file. Just the same, that arrest warrant was carried out, and that was
justified.
PRESIDING JUDGE BRAND: May I ask you a question. Would you
tell us in a few words the specific provision of the insidious acts law
which was violated in this case? I don’t understand that.
DEFENDANT ROTHAUG: That was article 2, section 1. I can read
it if you think it is desirable; I can quote it if you think it is
desirable.
PRESIDING JUDGE BRAND: I would like to hear that if it is
brief; I haven’t it before me.
DEFENDANT ROTHAUG: This is the provision. Schosser--
DR. KOESSL: Give the legal provisions, Witness.
DEFENDANT ROTHAUG: Yes, that is what it is. It is suspected
that Schosser made vicious remarks in public, derogatory remarks
about the leadership of the State, the NSDAP, its provisions and
institutions--
Q. Witness, will you please read the insidious acts law itself--rather
than--
A.--which are designed to undermine the confidence of the people in the
leadership. In connection with that I want to mention that we always
include the actual text of the law in the arrest warrant.
PRESIDING JUDGE BRAND: Give me the date of that law, please?
DR. KOESSL: The insidious acts law.
DEFENDANT ROTHAUG: The insidious acts law is of 20 December
1934; 20 December 1934.[547]
PRESIDING JUDGE BRAND: That is all.
DR. KOESSL: And now will you please tell us--
DEFENDANT ROTHAUG: The law speaks of statements, but the same
applies to behavior which permitted a conclusion, that is to say an act
which looked at on its own merits may be correct, but by the evaluation
which it is given by others, may have the character of a malicious act.
I have also explained that we were not informed about these matters.
The defendant was arrested and was questioned before the local court in
Weiden.
Q. Did he do anything about his arrest?
A. He filed a complaint against the arrest, he filed a complaint
against the arrest warrant; a decision was made.
Q. About that appeal, did you have anything to do with that decision?
A. That decision was formally not correct, but substantially it is very
interesting because by that decision the complaint against my arrest
warrant was rejected; and rejected by the one person who now charges
me with having issued that arrest warrant. That was signed--it happens
to be signed by Mr. Ferber, who asserts that I had pulled a dirty deal
with my arrest warrant.
Q. You yourself had nothing to do with that decision?
A. I had nothing to do with that decision; the case went on and was
soon suspended after the defendant had been interrogated, and that
was one thing we didn’t know when we issued the arrest warrant, he
explained that for quite some time he was in the army, and it was
granted him that he might not have been as well informed about the
entire atmosphere around the question of Poles in Germany as one would
have expected otherwise. The case was suspended on 27 August 1942, with
the reason that it could not be proved that the defendant intended to
demonstrate his opposition against the measures of the State concerning
Poles.
Q. You have been charged that because that case was not successful, you
had initiated a second proceeding, the one concerning the sermon. Will
you please, first state what the prosecution had decided already on 9
July 1942, that is to say, before the end of the first proceeding. You
find it on page 12 of the files, a disposition made by the prosecution
on 9 July.
A. That is the worst part of the charges which are raised against me
in this connection. As I have said, I can refute it by documents,
by just mentioning several documents in chronological order which
will clarify the connections. In the file concerned with the funeral
of the Pole, on page 12, 9 July 1942, there is a short disposition
on the part of the prosecutor where he requests a list of previous
connections and political record. Therefore, for that funeral case, one
wanted to have the political record of Schosser from the Party. The
prosecutor shouldn’t have done that really, but he was new there, and
he committed that blunder, and that was how the whole thing started. It
was prohibited to request any political record of a clergyman because
one considered--one knew generally that the clergy was against national
socialism; that was no secret; but now in spite of that, the Party
reacted upon that request and sent a certificate of that kind, not to
me, but to the prosecutor who requested it.
* * * * * * *
Q. What was the course of the second case, the case of the sermon? In
that case, serious charges were also made against you concerning the
treatment of the clergyman Schosser. Will you briefly describe the
course of those proceedings, and will you please state whether the part
you took in that case justifies the charge of being the main instigator
leveled against you?
A. In the further course of the proceedings that charge cannot be
considered since the proceedings were already started when the case
came before me. On 25 August 1942, I issued the arrest warrant. We did
not go as far at that time as the confession or the statements made by
Schosser in the trial would have permitted us to go. If we had assumed
that his entire sermon from beginning to end was directed against the
wolves in sheep’s clothing, we could have characterized the case as one
of high treason, and we would have had to pass it on for that reason
to the competent authority. We only assumed that in the course of the
sermon various doubtful statements had been made which had nothing to
do with God the Father, and that was how it came to trial.
Nothing further happened. Investigations were carried out such as in
every other case, and there was a defense counsel.
* * * * * * *
Q. Now we want to continue; where did the session take place in the
second case?
A. In the town hall court at Amberg.
Q. What parts of the population attended that session?
A. All categories of people. The court room was right in the center of
the town and when people had found out that there was something going
on, they just came.
Q. What was the composition of these people, according to their
denominations?
A. The great majority of the population was Catholic.
Q. Did you have to take certain considerations on account of that?
A. Of course. One had to avoid anything which could hurt the religious
feelings of these people. Cases against clergymen required a great
deal of caution and a great deal of tact so that no wrong impressions
were made, because it was generally considered undesirable to make the
impression, in any way, that it was intended to injure the religious
feelings of these people.
Q. What, in brief, were the charges against Schosser and how did he
defend himself against them?
A. The charges did not refer to the entire sermon, the subject of which
was false prophets, but two basic thoughts were mentioned. For one, the
thought that the leading individuals--meaning in the State--intended
to take the Catholic faith from the people. In addition to that,
the defendant also was charged with having attacked the principle
prevailing in Germany of religious freedom. That was the charge.
Q. Schosser asserts that his sermon itself was really not the focus
of interest; but that you had dealt emphatically with the matter of a
funeral, and you had included that in the case. Is that correct?
A. The matter of the funeral was not the subject of the indictment so
far as it was not considered a basis for any legal facts in connection
with it, but it was merely mentioned in the course of the trial. It is
correct that this matter was discussed in connection with the matters
contained in the indictment, but not in the manner that it was the most
important part of the trial. It was quite legally admissible to mention
it, as I have mentioned.
Q. Can you prove, from the files, that the prosecution submitted the
files concerning the sermon question to the court?
A. That can be seen from the file.
PRESIDING JUDGE BRAND: Is that file in evidence?
MR. WOOLEYHAN: No, Your Honor, it is not.
DR. KOESSL: The case was only discussed by the witness
Schosser.
DEFENDANT ROTHAUG: By an order in the file SG 948 from the
year 1942 (matter of the funeral), the prosecutor decided on 27 August
1942, under III, “Filed without subsidiary file”, that the matter SD
1312 of 1942--that is the sermon matter--after that file had been
returned, was to be attached. By way of that disposition, these files
concerning the funeral were submitted by the prosecution as material
evidence, together with the sermon file, with the consequence that
I received that material and had to discuss it with the prosecution
witness at the main trial. That was legally permitted at all times. The
judge was authorized to touch upon matters which had become either the
subject of amnesty, or where an acquittal had occurred, or on matters
referring to cases that had been suspended, or where a sentence had
been passed. He could touch upon all these matters in a different case
and discuss them for the purposes of the case at hand. Whether that
became the basis for an evaluation for that new trial--that, of course,
could only evolve from that main trial and the discussions therein.
Q. What was the basic purpose of discussing that question on your part?
A. The fundamental purpose of discussing these matters was to specify
the obligation that all individuals and all offices had to heed the
measures and regulations issued by the State, and the final purpose was
to establish what basic attitude the defendant himself had with regard
to that problem.
* * * * * * *
Q. Schosser says you had attacked him on account of his profession, and
you had attacked, in fact, the entire clerical profession. What was it
about these alleged attacks?
A. That just isn’t so. As was required for every case, the
interrogation was a conversation between myself and the defendant and,
in the course of that conversation, I went into the question that
people, if they wanted to go to church, wanted to hear about heavenly
matters and didn’t want to hear anything about politics. If he wanted
to deal with questions of that kind, he shouldn’t have become a
clergyman but a politician.
Q. In connection with the education of youth, you are supposed to
have reproached him that in the house of his parents, he hadn’t been
educated in the National Socialistic sense.
A. That kind of a conversation would have been straight nonsense
because Schosser was born in 1909 and, at that time, there was no such
thing as national socialism. Consequently, I could not blame him. * * *.
PRESIDING JUDGE BRAND: We understand your answer.
DR. KOESSL: It is also asserted that you reproached him that
the Catholics were saying that Protestants were going right to hell.
Quite briefly, please.
DEFENDANT ROTHAUG: That again was an entirely different
thought. I set forth that the German State has two great denominations
and many others and can, therefore, be neither Catholic or Protestant
but only absolutely neutral. It was, of course, up to him personally
in his clerical field to speak for the accuracy of his opinion and his
faith. If you are of the opinion that all those who are of a different
denomination will go to hell, it is impossible for the State to share
that opinion. As far as we are concerned, everybody will go right to
heaven.
Q. Another question, quite briefly. Will you tell us what was said
about Rosenberg?[548]
A. The name Rosenberg was brought in in the following manner. Schosser
himself referred to it because his line of defense was that he had not
intended to attack the Party by his statements but new [religious]
ideas [neopaganism] and that he particularly intended to turn against
Rosenberg with his statements. Thereupon, I told him that at any time
it was his right to refute the thoughts which Rosenberg developed in
his book, “Myths of the 20th Century,” in his sermons and to prove that
they were wrong, only he had to specify what he intended to refute
and whom he intended to refute because that, of course, was the most
important thing of the trial. He had to exclude any possibility that
these things might be carried into the general political field. That
was the basis for my thoughts.
Q. Under what provisions was Schosser sentenced?
A. On the basis of article 130a of the Criminal (Penal) Code and
article 2 of the Insidious Acts Law,[549] that is to say, according to
German law both provisions became applicable; as we would have said
technically, there was a sort of a legal connection between the two
laws.
Q. Would Schosser have been punishable if there hadn’t been an
Insidious Act Law?
A. Of course, on the basis of article 130a.
Q. As far as the facts are concerned, had the case Schosser been dealt
with leniently or severely?
A. As far as the facts were concerned, it had been dealt with most
leniently because the basis of suspicion was that the entire sermon
of the false prophets and the roving wolves in all its structure and
tendency was a political attack against the government. Schosser, when
he was heard here as a witness, more or less admitted that. In our
evaluation, however, we did not go that far, but we only referred to
these two basic attacks.
* * * * * * *
EXTRACT FROM THE TESTIMONY OF DEFENDANT KLEMM
CONCERNING PROSECUTION EXHIBIT 291 AND
LIMITATIONS ON DIVINE SERVICES[550]
_DIRECT EXAMINATION_
DR. SCHILF (counsel for defendant Klemm): The prosecution in
this connection submitted another document, Prosecution Exhibit 291,
that is Document NG-770.[551] It deals with the problem whether church
services could be held in penal institutions. I ask you whether you had
anything to do with that matter?
DEFENDANT KLEMM: Yes, and I remember it quite well because
I had a rather hot argument with Thierack about that matter.[552]
Thierack, without informing me, prohibited that any church services
could be held in penal institutions. I found out about that
directive through the _Deutsche Justiz_--the periodical for
German Justice--of 1944, on page 270. I immediately went to Thierack
and referred to ethical reasons, but he did not abstain from his
intentions. Then I used stronger arguments. I told him that I knew from
the period of my work in the Party Chancellery that Hitler himself had
issued a strict order that during the war all measures which might
cause struggles with the church should be abstained from. Thierack
doubted that. I offered that I would get a written confirmation from
the Party Chancellery about that. He forbade that I write to the Party
Chancellery. I told him in the course of the conversation that I was
quite sure what the outcome of that matter would be. The moment one
bishop would turn to Hitler, Hitler on account of his basic attitude
would disavow Thierack.
A short time later when letters were received from German bishops,
from the Protestant side as well as from the Catholic side, I went to
Thierack and he became rather thoughtful and agreed to rescind the
former order. That happened in a very carefully stated form, but it
actually occurred. Especially for that matter, I claim a certain amount
of credit.
* * * * * * *
VI. FINAL STATEMENTS OF THE DEFENDANTS[553]
PRESIDING JUDGE BRAND: The record will show that the
defendants have already had the opportunity to testify at length under
oath, and they are now accorded the privilege, in each instance, of
making an unsworn statement for the benefit of the Tribunal.
We will hear the first defendant, Dr. Schlegelberger.
DEFENDANT SCHLEGELBERGER: These words of Pope Gregor VII are
world-famous: “I loved justice and hated arbitrariness; therefore, I
die in exile.”
I feel confident that your judgment will save me from that fate. But
I, too, in imprisonment, could not overcome the bitterness of being
rewarded for my hard struggle for justice by this period of shame and
misery. The charges and insults of the prosecutor do not apply to me.
My life is not compatible with the intention of crime. The attempt
to destroy the alleged myth around my person by showering abuse at
a man who has aged honorably was bound to fail. The Goering affair
has been cleared up as completely unexceptionable. The connection
between it, my draft of a law, and my resignation is based on a freely
invented malicious construction which lacks all foundation. In spite
of my advanced age my defense was easy for me. All I had to do was to
tell the Tribunal the truth. I have done so in the firm conviction
that truth will be victorious and with the undaunted pride of a clear
conscience.
PRESIDING JUDGE BRAND: The defendant Klemm may address the
Court.
DEFENDANT KLEMM: The prosecution has endeavored to show that
I am not worthy of credibility. In long winded arguments it endeavors
to connect a very few apparently positive points by combinations
which lack all foundation, both in factual and political respect.
Distortions and arbitrary additions have to serve this purpose. In
the case of Sonnenburg it is said that Hecker had stated that Hansen
had said that Klemm did not feel comfortable in connection with this
matter. Not a word to this effect is to be found in the transcript of
Hecker’s testimony. Although, in cross-examination, Hecker clearly
could not maintain the agreement as he described it in his affidavit,
the prosecution maintains the agreement, although its own witness,
Eggensperger, denied it as well. And now another final example.
Heydrich’s directives to his police agencies to take Jewish women
into protective custody is presented by the prosecution as being
an agreement with the judicial administration. There are many more
examples. But please let me say only the following with regard to what
the prosecution stated this morning. Due to the propaganda of the
State, we were convinced at the outbreak of the war that justice was
on our side. A dictatorship could not and does not permit its cards to
be shown. And, finally, we are not here charged with crimes against
peace. To what Mr. King said regarding Prosecution Exhibit 252,[554]
let me state the following: The list of 17 January 1945, containing
reports on death sentences, deals with a list of the Minister, for it
contains doubtful cases, and from that I gathered that it could not
be my list after I had also seen from the photostat that there were
several dates on the top of the list. Even if both lists should be from
1945, the same applies as with regard to the lists on pages 154 through
157 in document book 3-L, according to which separate reports were
made to me on individual cases and to the Minister on death sentences.
If the prosecution bases its case on the testimony of the witness
Altmeyer, this testimony has been refuted with overwhelming clarity by
the testimony of Hartmann, Franke, and Ehrhard, and the prosecution
overlooks that, in his cross-examination, the witness Altmeyer, in
particular had to deviate from his affidavit. The prosecution mentioned
furthermore a case of theft from airmen where proceedings were quashed.
I remember the case distinctly. An airplane had been destroyed, and
from the wreck objects had been stolen which had already been partly
destroyed by rain and fire. The proceedings were stopped because the
subjective prerequisites of theft could not be proved. The prosecution
has failed to show what this theft from a wrecked airplane had to do
with lynching of aviators. All in all, the result of the statements of
the prosecution is as follows: In this trial it was not only German
justice of the past years that was indicted, but the continental legal
system, a system in which for many decades the obedience to the law and
the norm created by the State has been the only task of the jurist.
Before 1933 I had been educated and trained in this school of thought.
What legal and factual opportunities were open to me I used in favor
of justice wherever I could do so. To revoke laws and norms which had
existed for years was not in my competency.
PRESIDING JUDGE BRAND: The defendant Rothenberger may address
the Tribunal.
DEFENDANT ROTHENBERGER: I was a National Socialist, and in
that respect I distinguish myself from those who for 10 years and
more were placed in leading positions in the Third Reich and today
say that they were not National Socialists. When I realized that
national socialism was destroying the very values for which I had
lived and for which it had promised to work, I decided with all my
energy to influence the development of national socialism in the sphere
of justice. I did not want to be a hanger-on. It was not my way to
content myself with tactical maneuvers or withdrawals, which gradually
brought about an undermining of the administration of German justice.
The struggle for the idea of the judiciary within the framework of a
totalitarian state I made the focal point of my life. And, therefore,
I consider myself to be under an obligation to declare today that the
German judge and his judgment, since 1933, were subjected to excessive
attacks from the Party and from the SS without being given any backing
from the leadership of the Ministry. Here lie the causes for my
actions. At the beginning, I believed that in a totalitarian state
there could exist a free judiciary. In the course of time I realized
that most of the Party leaders, and in particular the SS leaders,
found the very essence of the judiciary an obstacle in their way. I
did not wish it to be true that there should be no way to save my
Fatherland from such a dangerous development and therefore I clung to
Hitler. In so doing I found myself in the company of many clever people
in all spheres of human activity in Germany and abroad. As to whether
my reform of the administration of justice has been rightly called by
the prosecution a Nazi reform which--it is true--called itself National
Socialist, but which aimed at excluding the influence of the SS and the
Party from the administration of justice, and which contains not one
word against Jews or foreigners, but on the contrary claimed the entire
administration of penal justice, including that for foreigners and
Jews, for the judiciary--with confidence I leave it to the Tribunal to
decide that question.
I do not ignore today that my life work which has eaten up my nervous
strength was bound to fail; nor do I ignore that my aims were, at
times, in contradiction to the practice of life and also my own
attitude, but is it not always like that in the life of human beings
that just because there are such abuses and just because at times one’s
self is weak, one takes that very circumstance for a cause to set
up postulates which serve as aim and direction, but which we cannot
immediately, particularly in wartime, put into effect, since the power
of conditions is stronger than ourselves. And how far the power of the
SS and the Party had extended I realized as late as 1942 when I came
to Berlin and got an insight into conditions in the Reich. That Hitler
himself was a despot and that he coupled me together with a man who
showed himself to be a tool, without any will of his own, of Himmler
and Bormann, that was my tragic misfortune.
I had to experience one set-back after the other. At the very beginning
of my work I was compromised in the whole of the Reich by the well
known SD report of Himmler’s in October 1942, which prophesied that I
would soon resign, and the only positive point which kept me was the
hope and the confidence of the German judges.
There are only two charges of the prosecution which they made in their
final plea that I want to answer now. How can the prosecution from my
speeches in Hamm and Lueneburg, of the latter of which the text does
not even exist, conclude that I was in favor of exterminating the
Jews? Both speeches exclusively relate to degenerate and incorrigible
criminals. In the usage of the German language, they are antisocial
elements and for those elements I demanded, according to another
prosecution document, a judicial authority. And the second charge is
that I am a liar. The Jewish pogrom in 1938, they say, had been on
quite a different scale in Hamburg from the way I had described it. As
to how the Jewish question was handled in Hamburg you can see clearly
not only from a prosecution document but also from the affidavit by
the man whom the British, after the surrender, appointed Lord Mayor of
Hamburg. I am speaking of Mayor Petersen who is half-Jewish himself.
That in my struggle I was placed in outward contact with wrong, that
lay in the very nature of things. I assume responsibility for every
action of my own. The consequences which are now borne by the whole
German people justify the fact that former leading personalities also
bear the consequences. But I am of the opinion that crimes which were
committed by my greatest enemies behind my back cannot be held against
me. As soon as I heard of them I drew the consequences.
After 16 months, in 1943, Himmler, Thierack, and Bormann finally made
me unemployed. I was 47 years old at the time. Without overestimating
the power of my personality, the road for the wishes of those men,
concerning the administration of German justice, now lay open.
PRESIDING JUDGE BRAND: Defendant Lautz may now address the
court.
DEFENDANT LAUTZ: At the beginning of the prosecution’s oral
presentation, the chief prosecutor emphasized that the roles which the
defendants are assigned in these proceedings are new for them. That is
true, as far as this refers to the position which we now have to hold
before this Tribunal. Apart from that, we public prosecutors are quite
familiar with the role of defendants in criminal proceedings. A man
like myself who, in 25 long years, became acquainted with the fate of
men in prisons, in courtrooms, in penal institutions, and on the way to
the place of execution, knows very well the tragedy of this role and
one who, under the official robe, has preserved a human heart, will the
better recognize that not blind zeal for prosecution, but much rather
wisdom coupled with human understanding are best designed to serve the
aim of true judicial administration.
The German public prosecutors in their overwhelming majority recognized
this also in the Third Reich. Therefore, none of the charges made
against me here I feel to be more unjust than that, by filing malicious
indictments, I had done injustice for the sake of injustice. I trust,
however, that these proceedings have shown how unjust this charge is.
The office of a public prosecutor is a very hard one. It is easier
in peace than in wartime, but it became incredibly difficult during
a war which is without example in history and which has left our
Fatherland--which also meant everything to us public prosecutors--in
ruins.
PRESIDING JUDGE BRAND: Defendant Mettgenberg may address the
Tribunal.
DEFENDANT METTGENBERG: Your Honors. Novel, alien, and
unaccustomed as it was to the previous speaker, so it is to me the
situation in which I have found myself for months as a prisoner in the
dock; and that is what the prosecution said when this trial opened,
novel, alien, and unaccustomed were to me many things in this trial
which concludes today.
All the same I, for my part, have tried to make my contribution to the
correct carrying out of these proceedings; with complete frankness I
have described my past career, and I have given you my views concerning
the points with which the prosecution has charged me. There is nothing
I have to hide.
Now at the end of this trial the prosecution deemed it necessary, I
believe without regard to the evidence, to ask of you that you should
convict me for having committed war crimes. It may be that you will
convict me for having committed war crimes. It may be that that is the
duty of the prosecution. It is not for me to arrive at a judgment about
that. The prosecution must take the responsibility for their motion.
My defense counsel has asked you to acquit me. I too ask you to
acquit me, but Your Honors, I ask you for more than that. As far as
I am informed, it is in accordance with your legal views to acquit a
defendant if there is a reasonable doubt about his guilt. I am of the
opinion, and please do not think me arrogant, that I may expect you to
find that there is no reasonable doubt as to my innocence. Even after
careful and conscientious examination, such as I have given to my own
past, I believe I am justified in making this request.
PRESIDING JUDGE BRAND: The defendant von Ammon may address the
Tribunal.
DEFENDANT VON AMMON: I have nothing to add to the statements
made by me on 1 and 4 August under oath in the witness box.
PRESIDING JUDGE BRAND: Defendant Joel may address the Tribunal.
DEFENDANT JOEL: I wish to remain silent.
PRESIDING JUDGE BRAND: Defendant Rothaug may address the
Tribunal.
DEFENDANT ROTHAUG: Prosecutor King in his final plea mentioned
a death sentence passed by a French court against a president of a
court in Strasbourg. May I refer to the fact that this involves a
so-called _in absentia_ sentence in which the defendant had no
opportunity for his own defense whatsoever, because at that time he was
in a German internment camp and by sheer accident happened to read of
it in a newspaper.
I served my country throughout my life and in whatever position I was
assigned to, in faithfulness, with a pure heart, and without malice.
Seen from my present position you might consider this wrong, and you
could say I and all those who surrounded me should have been more
suspicious of developments as they took place. This prognosis in
retrospect is just as convincing as it is cheap. Nobody in our position
at that time could be of the opinion that the State which we served
could be accused of being altogether illegal and that the war that it
waged was a war of aggression, as is demonstrated today to all the
world. Therefore, it is no accident and no excuse that, apart from
defending myself against the flood of personal defamations which I
received from the circle of my previous friends and assistants, I am
now anxious to prove to you that both in the service as a judge and
prosecutor, I applied the laws of my country in the manner in which
they were intended, to the best of my conscience and belief. We were
guided by the practice of the Reich Supreme Court and went the same
way which was taken by the remaining 60 to 80 Special Courts in the
Reich. We were no specialists in crimes against humanity, and no proof
has been furnished in any single case that, in any connection, we had
applied an illegal method.
Thoughts of extermination were not represented in my sphere of
work, nor did we ever hear anything to the effect that in the field
of justice they played any part at all. We knew of shootings of
people who had been sentenced only to prison terms. That was openly
reported in the newspapers. Apart from that, these proceedings
applied to four people who, under my presidency, had been sentenced
to imprisonment--among them, the Eisenberger case mentioned here. But
I myself only heard of the inner connections of these events when
internal official files of the public prosecution became accessible to
me here. We saw and judged the facts in a different light. The country
was an area of warfare. I have experienced the terrors of Verdun. As
far as misery is concerned, it cannot be compared with the effects of
one single air raid, lasting 45 minutes, on the civilian life of this
city. The principle of war which threatens life itself had been made
the principle of life. We therefore understood, guided by this point of
view, that the laws required harsh proceedings in the case of crimes
which exploited conditions of war, and that habitual criminals, violent
criminals, and saboteurs of all kinds, in view of the decreased
security of the conditions as they existed in the country, had to be
held down. If, on the other hand, we are told that thereby we had
supported a war of aggression carried on by our government, then we
can only say “we did not know that.” Once war had come, the life and
existence of millions of peoples was involved, and we derived therefrom
the ethical justification for severity against individuals, which
stood in no proportion to what was at stake. The logical calculation
of war in regard to life is that hundreds of thousands of people are
sacrificed to save the lives of millions, and this principle was
transferred to the entire public life and in the field of criminal law,
this was tied to the concept of guilt. And that was how our work, our
activity, was understood. If today we are no longer understood, and if
attempts are made today to judge our actions as criminal, this is not
very surprising in view of a world which does not look too far below
the surface of things. For the catastrophe has made all our actions
appear in the destructive light of “in vain.” This qualification which
also has a demoralizing effect, disguises all connections which might
speak in our favor in the question of humanity. This is the tragedy of
our case, and we are convinced that Your Honors will not fail to see it.
PRESIDING JUDGE BRAND: Defendant Barnickel may address the
Tribunal.
DEFENDANT BARNICKEL: May it please the Court. The great
Frenchman Honoré de Balzac, for whom I have had a great respect since
the days of my youth, puts into the mouth of one of his characters
these words, “I believe justice to be a development of a divine idea
which is suspended above the world.” That idea, whether one shares
it or not, is certainly very beautiful. It remains beautiful even if
justice does not always reflect its divine origin. We jurists whom
fate had condemned to work in the Third Reich--and I am by no means
referring only to us who are here, I am referring to all of them--we
know what was the matter with the administration of justice in the
Third Reich. But in whatever way this administration of justice may
have worked, I believe one must view it in connection with the fate of
the German people. Professor Jahrreiss, to whom all of us in this trial
listened with interest, once coined the phrase that for decades the
German people had no longer known normal life. Every single one of us
actually experienced that himself. If I may make it more clear from the
example of my own life, I want to read a few sentences from my diary
for the last time. This is an entry which I made on 9 June 1942, and I
wrote it under the influence of a Swiss novel, the title of which is
“Amadeus”, and I quote:
“When I thought about it for longer as to what I liked so much
about ‘Amadeus’, this occurred to me, it is peace, the peace in
which these people live, and in which they can develop. Peace
which, to us Germans, has become something quite strange because
since 1914 we have not had it any more. Before that time we,
too, lived in such an atmosphere, but since then we have always
had war, or at least a pressure which was like war. From 1914
to 1918 there was a war on. In 1919 an intermediate phase set
in. From 1920 to 1923 there was the inflation. From 1924 to 1927
there was the deflation. From 1928 to 1929 there was a brief
recovery. From 1930 to 1932 there was a financial crisis and a
continuous political crisis. From 1933 to 1939 the German people
were molded into a new cast by force. From 1939 to 1942 there
was war. From 1942? Still war!
“I am 57 years of age today--at that time--18 years of that
were the years of my youth; 28 years were war years. For
11 years there was a real life. And these were the years
of development--of immaturity--years of struggle, years of
suffering and poverty. But in between there were also many happy
hours.”
That is how I looked at my life at the time. And it was similar for
every average German citizen. Every normal German longed for peace,
for peace which had become something quite strange to us, and every
German has that longing deep in him, just as I myself--but it was not
within his power to achieve that peace. We saw it merely like a ghost.
But the same fate which individuals have, is the fate of the spiritual
institutions of their nation. And the administration of justice, too,
shared our fate; it, too, was hemmed in in war and political violence,
which were foreign to its nature. No wonder that, at the end of that
last period of 30 years, justice, too, had been wrecked, just as
millions of people and their lives had been wrecked! Let us hope that
from that destruction, new life and new culture will develop. For,
after all, so far every generation has lived on the ruins which were
left by its predecessors, and built its houses from those ruins. Let
us hope that what we see in Germany at this moment is already part of
reconstruction and no longer of destruction, and also, I hope, that
we--as Balzac put it--one day again shall be able to believe that
justice is the development of a divine thought which is suspended above
the world!
PRESIDING JUDGE BRAND: Defendant Petersen may address the
Tribunal.
DEFENDANT PETERSEN: Your Honors, World War I signified a
deep cut in the history of the German people. There existed the great
danger for Germany of being swamped from the East. It was in the
hope to prevent this that I joined the NSDAP. Germany was to remain
one bulwark against bolshevism, a pillar of Western culture. I once
entertained the great hope that national socialism would contribute
its part toward this end. I do not want to describe my disappointment;
the way led past stations of terror. In all my actions I was guided
by the ideal of fulfilling my duty and of serving my country. It was
solely my conscience that formed the basis for my actions, irrespective
of whether I was an officer, SA leader, State counsellor, or only
an honorary associate judge of the People’s Court. I have nothing
further to add to this. My conscience is clear. Therefore, I am calmly
expecting your verdict.
PRESIDING JUDGE BRAND: The defendant Nebelung may address the
Tribunal.
DEFENDANT NEBELUNG: I was a German judge. I followed the laws
of my country and my knowledge and my conscience in passing judgment.
Germany has lost the war. If the law of the victors so demands of
you--I do not believe it does--then you must condemn my actions. In
this trial the tragedy of the office of the judge has been mentioned
frequently. Is that anything special? Does not every soldier find
himself in the same situation? I, too, have had that experience both as
a soldier and as a judge, but not here in prison, not in the dock, but
by the gun and on the bench. By that I want to say the tragedy does not
lie in the consequences. I do know how to bear the consequences of a
sentence, for I believe in the words of the German who was both a judge
and a poet, Theodor Storm, “One man asks, ‘What will happen next’?
while the other merely asks, ‘Is that right’? And that is how the free
man is distinguished from the serf.”
PRESIDING JUDGE BRAND: The defendant Cuhorst may address the
Tribunal.
DEFENDANT CUHORST: Your Honors, I have to add the following
brief words to the final plea of the defense counsel appointed on my
behalf. Indictment and prosecution statements reveal that in these
proceedings I am only _pars pro toto_. The prosecution with its
evidence is unable to prove any charge which would actually apply to
me. The prosecution in its final plea has failed to mention a whole
series of charges in the indictment, and others for the same reason,
namely, lack of evidence, it left in abeyance. In presenting its
evidence the prosecution not only ignored my evidence but also its own,
in part. What other reasons are there to explain that they submitted
in the course of the cross-examination Document No. 983 [_NG-983,
Pros. Ex. 570_], which reveals in an account of traveling expenses
that on 21 March 1943 I was absent for weeks in the East on an
official journey, and at the same time had the witness Eberhard Schwarz
testify with alleged full assurance that on 24 March 1943 I was in
Stuttgart and presided over the case against the foreigner Englert. The
prosecution has submitted the verdict in the case of Untermarchtal, but
what they said in the indictment about its contents is not contained
in the verdict, but just the contrary. This is the type of evidence
submitted if facts are involved. Only documents, not arguments with
many sources of error, can show the facts.
Justice, above all, penal justice, in Germany since 1918 was always
considered an institution not in accordance with the times due to
political attacks on its reputation, thus losing its reputation. In
spite of early hopes, also after 1933 this development continued,
and it still continues. Neither in 1937 did Guertner protect my
predecessor, nor in 1944 did Thierack protect me. The many stages
of this development pretended to have various good aims, but they
actually had only the one effect--to destroy what we call justice.
Contrary, for example, to the profession of a doctor, that of a penal
judge creates only few friends. A man who is acquitted takes his
acquittal for granted. The man who is sentenced, his defense counsel
considers the verdict as unjust or too severe. Confusion caused in
the transitional periods showed this in a particularly conspicuous
form. In spite of this dangerous situation for a criminal judge now
accused of being a criminal himself, no person ever convicted under my
jurisdiction has testified against me. Only a judge who is a saint is
free of errors. I never denied mine. The struggle for independence and
against destructive influences of the time has not left me unscathed.
They wanted to eliminate me from the Party and from my profession, and
an unfree minister and his accomplices removed me from office. The
prosecution witness against me was quite right who said: “He wanted
to maintain independence and he did maintain it.” Due to the collapse
of my Fatherland, I am again involved in struggles. I am involved
in an indictment against judges full of unexpected and excessive
charges. From 1933 to 1944, one side spoke of me as if I were strange,
suspiciously mild, unbearable, unsuitable for office, and detrimental
to the Party and so on. Today the strong terms read as follows:
Disgusting, exceptionally severe, convinced Nazi, and the like. Also
in my prison cell which has been my fate for almost 1 year, though
as a prisoner of war and an army officer I am subject to the Geneva
Convention, I accept these reproaches quietly. I have sworn the oath
to observe the law independently and to apply it irrespectively of the
person involved. I have duly observed this, and let the consequences
be whatever they may be. Either time will be able to bear judges who
do not bend themselves or the time is already here which has quite
different views. In handling these problems my own case is receding
to the background. The decision concerning the basic questions of the
entire problem of the judiciary brings the solution, also for me, of
the question--Am I as a judge a criminal? Before all the world, and
even where war opponents are concerned, a _judicium parium_ can
answer this tremendous question with one word only, namely, no.
PRESIDING JUDGE BRAND: The defendant Oeschey may address the
Tribunal.
DEFENDANT OESCHEY: May it please the Court, what need be
said in my case has been said by my defense counsel, and all that is
left for me is to agree to his statements, to give you the assurance
that I always acted in the belief and in the conviction that I was
doing right, by obeying the law to which I was subjected and applying
it in the manner in which my conscience told me to. And it is the
truth that it was a matter of conscience for me not to misuse the law
in a criminal way, but to apply it in accordance with the will of
the legislator, and to grant the offender a proper trial and a just
verdict. Therefore, my conscience knows that it is clear of the crimes
with which I am charged.
PRESIDING JUDGE BRAND: The defendant Altstoetter may address
the Tribunal.
DEFENDANT ALTSTOETTER: The charges which the prosecution has
raised against me because of my alleged participation in war crimes
and crimes against humanity and on account of my capacity as honorary
SS leader, do not apply to me. My conscience is free of any guilt. I
certainly do not propose to evade responsibility for my actions. On
the contrary! These proceedings gave me the possibility to justify my
actions before my people--by whom I stand even in these hard days--and
before the entire world, that is, my actions during the past regime,
and particularly so during the period of my activity in the Reich
Ministry of Justice, and to prove that I always only served law and
justice. For this reason I have done everything to give the best
contribution possible in order to bring out the truth in this trial
as far as I am concerned. As a witness in these proceedings I have
testified to the truth to the best of my knowledge and belief.
The prosecution knows this very well from my own interrogations
during preliminary proceedings and from the interrogations of
many collaborators and aides who, however, were not called by the
prosecution to appear as witnesses in court. The prosecution knows it
also from documents which must be in its possession, but which were not
submitted in evidence.
And, therefore, the fact hurts me all the more that in its final plea
the prosecution designates me as not worthy of credibility. I feel
obliged toward myself and also toward my children to protest with all
seriousness and with all emphasis against this charge of having lied. I
do not have to fear truth. I hate nothing more than lies. I feel secure
only under the protection of truth, for truth is the sister of justice.
But justice on the part of the prosecution must be claimed by me even
if here we are only experimental objects of international law as it is
aspired to, and of an embryonic international justice.
Furthermore, I feel obliged to refer to the following, let the
proceedings result as they may. There is the enormous danger that
German justice was shown here in a picture which, even referring to
the time between 1933 and 1945, is not identical with actual facts.
I know justice in all its different phases and organizations, and I
know that German administration of justice up to the very end was the
best administration of the Reich, and I know above all that the German
judges, even in hard times and particularly in these hardest times of
all, did their duty for right and justice up to the very end. All that
could be desired was that the courage which was shown among the German
judiciary at those times would have been shown everywhere. Then the
danger could never have arisen that here in this courtroom there might
arise the danger of a false picture of the German judge.
VII. OPINION AND JUDGMENT
Military Tribunal III was established on 14 February 1947 under General
Order No. 11, issued by command of the United States Military Governor
for Germany. The indictment was filed with the Secretary General of
Military Tribunals on 4 January 1947, and the case was assigned to
Tribunal III for trial. A copy of the indictment in the German language
was served upon each defendant at least 30 days before the commencement
of the trial. The defendants were arraigned on 17 February 1947, each
defendant entering a plea of “not guilty” to all charges preferred
against him. German counsel selected by the defendants were approved by
the Tribunal and have represented the respective defendants throughout
the trial.
The presentation of evidence in support of the charges was commenced
on 6 March 1947 and was followed by evidence for the defendants. The
taking of evidence was concluded on 13 October 1947. Copies of the
exhibits tendered by the prosecution were furnished in the German
language to the defendants prior to the time of the reception of the
exhibits in evidence. The Tribunal has heard the oral testimony of 138
witnesses. In addition it has received 641 documentary exhibits for
the prosecution and 1,452 for defendants, many of them of considerable
length. Some affidavits have been presented by the prosecution, but
they are few in comparison with the hundreds offered by the defense.
Whenever possible, and in substantially all cases, applications of
defense counsel for the production in open court of persons who had
made affidavits in support of the prosecution have been granted and the
affiants have appeared for cross-examination. Affiants for the defense
were cross-examined orally by the prosecution in comparatively few
cases.
The defendant Carl Westphal died before the commencement of the trial.
On 22 August 1947, the Tribunal entered an order declaring a mistrial
as to the defendant, Karl Engert, who has been able to attend court
for only 2 days since 5 March 1947. The action was rendered necessary
under the provisions of article IV (_d_) of Military Government
Ordinance No. 7, and by reason of the serious and continuing illness of
said defendant.
The trial was conducted in two languages with simultaneous translations
of German into English and English into German throughout the
proceedings.
Under Military Government Order of 14 February 1947, the following were
designated as members of Military Tribunal III: Carrington T. Marshall,
presiding judge; James T. Brand, judge; Mallory B. Blair, judge; Justin
Woodward Harding, alternate judge. As thus constituted, the Tribunal
entered upon trial of the case. On 21 June 1947, General Order No. 52
was issued by the Office of Military Government for Germany as follows:
_“Pursuant to Military Government Ordinance No. 7_
“1. Effective as of 19 June 1947, pursuant to Military
Government Ordinance No. 7, 24 October 1946, entitled
‘Organization and Powers of Certain Military Tribunals’,
JAMES T. BRAND is appointed Presiding Judge of Military
Tribunal III, vice CARRINGTON T. MARSHALL, relieved
because of illness.
“2. JUSTIN WOODWARD HARDING, Alternate Judge, is
appointed Judge for Military Tribunal III.
“By command of GENERAL CLAY:
C. K. GAILEY
Brigadier General, GSC
Chief of Staff”
The trial has been continued before the Tribunal as thus reconstituted.
The evidence has been submitted, final arguments of counsel have been
concluded, and the Tribunal has heard a personal statement from each
defendant who desired to address it.
In rendering this judgment it should be said that the case against
the defendants is chiefly based upon captured German documents, the
authenticity of which is unchallenged.
The indictment contains four counts, as follows:
(1) Conspiracy to commit war crimes and crimes against humanity. The
charge embraces the period between January 1933 and April 1945.
(2) War crimes, to wit: violations of the laws and customs of war,
alleged to have been committed between September 1939 and April 1945.
(3) Crimes against humanity as defined by Control Council Law No. 10,
alleged to have been committed between September 1939 and April 1945.
(4) Membership of certain defendants in organizations which have been
declared to be criminal by the judgment of the International Military
Tribunal in the case against Goering, et al.
The sufficiency of count one of the indictment was challenged by the
defendants upon jurisdictional grounds, and on 11 July 1947, the
Tribunal made and entered the following order:
“Count one of the indictment in this case charges that the
defendants, acting pursuant to a common design, unlawfully,
willfully and knowingly did conspire and agree together to
commit war crimes and crimes against humanity as defined in
Control Council Law No. 10, article II. It is charged that the
alleged crime was committed between January 1933 and April 1945.
“It is the ruling of this Tribunal that neither the Charter of
the International Military Tribunal nor Control Council Law No.
10 has defined conspiracy to commit a war crime or crime against
humanity as a separate substantive crime; therefore, this
Tribunal has no jurisdiction to try any defendant upon a charge
of conspiracy considered as a separate substantive offense.
“Count one of the indictment, in addition to the separate
charge of conspiracy, also alleged unlawful participation in
the formulation and execution of plans to commit war crimes and
crimes against humanity which actually involved the commission
of such crimes. We, therefore, cannot properly strike the whole
of count one from the indictment, but, in so far as count one
charges the commission of the alleged crime of conspiracy as a
separate substantive offense, distinct from any war crime or
crime against humanity, the Tribunal will disregard that charge.
“This ruling must not be construed as limiting the force or
effect of article II, paragraph 2, of Control Council Law No.
10, or as denying to either prosecution or defense the right to
offer in evidence any facts or circumstances occurring either
before or after September 1939, if such facts or circumstances
tend to prove or to disprove the commission by any defendant
of war crimes or crimes against humanity as defined in Control
Council Law No. 10.”
_THE JURISDICTIONAL ENACTMENTS_
For convenient reference we have attached to this opinion copies
of the London Agreement of 8 August 1945, with the Charter of the
International Military Tribunal annexed thereto, Control Council Law
No. 10, Military Government Ordinance No. 7, and the indictment, which
are marked respectively Exhibits A, B, C, and D.[555]
The indictment alleges that the defendants committed crimes “as defined
in Control Council Law No. 10, duly enacted by the Allied Control
Council.” We therefore turn to that law.
The Allied Control Council is composed of the authorized
representatives of the four Powers: the United States, Great Britain,
France, and the Soviet Union.
The preamble to Control Council Law No. 10 is in part as follows:
“In order to give effect to the terms of the Moscow Declaration
of 30 October 1943 and the London Agreement of 8 August 1945,
and the Charter issued pursuant thereto and in order to
establish a uniform legal basis in Germany for the prosecution
of war criminals and other similar offenders, * * * the Control
Council enacts as follows:”
Article I reads in part as follows:
“The Moscow Declaration of 30 October 1943 ‘Concerning
Responsibility of Hitlerites for Committed Atrocities’ and the
London Agreement of 8 August 1945 ‘Concerning Prosecution and
Punishment of Major War Criminals of the European Axis’ are made
integral parts of this Law. * * *”
The London Agreement, supra, provides that the Charter of the
International Military Tribunal (hereinafter called the IMT Charter),
“shall form an integral part of this agreement.” (London Agreement,
art. II). Thus, it appears that the indictment is drawn under and
pursuant to the provisions of Control Council Law No. 10 (hereinafter
called C. C. Law 10), that C. C. Law 10 expressly incorporates the
London Agreement as a part thereof, and that the IMT Charter is a part
of the London Agreement.
Article II of C. C. Law 10 defines acts, each of which “is recognized
as a crime,” namely, (_a_) crimes against peace, (_b_) war crimes,
(_c_) crimes against humanity, (_d_) membership in criminal
organizations. We are concerned here with categories (_b_), (_c_), and
(_d_) only, each of which will receive later consideration.
_The Procedural Ordinance_
C. C. Law 10 provides that--
“1. Each occupying authority, within its zone of occupation,
“(_a_) shall have the right to cause persons within such
Zone suspected of having committed a crime, including those
charged with crime by one of the United Nations, to be arrested
* * *.
* * * * *
“(_d_) shall have the right to cause all persons so
arrested and charged, * * * to be brought to trial before an
appropriate tribunal. * * *
“2. The tribunal by which persons charged with offenses
hereunder shall be tried and the rules and procedure thereof
shall be determined or designated by each Zone Commander for his
respective Zone. * * * ”
Pursuant to the foregoing authority, Ordinance No. 7 was enacted by the
Military Governor of the American Zone. It provides:
“Article I
“The purpose of this Ordinance is to provide for the
establishment of military tribunals which shall have power to
try and punish persons charged with offenses recognized as
crimes in article II of Control Council Law No. 10, including
conspiracies to commit any such crimes. * * *
“Article II
“(_a_) Pursuant to the powers of the Military Governor for
the United States Zone of Occupation within Germany and further
pursuant to the powers conferred upon the Zone Commander by
Control Council Law No. 10 and articles 10 and 11 of the Charter
of the International Military Tribunal annexed to the London
Agreement of 8 August 1945 certain tribunals to be known as
‘Military Tribunals’ shall be established hereunder.”
The tribunals authorized by Ordinance No. 7 are dependent upon
the substantive jurisdictional provisions of C. C. Law 10 and are
thus based upon international authority and retain international
characteristics. It is provided that the United States Military
Governor may agree with other zone commanders for a joint trial.
(Ordinance 7, art. II, par. (_c_).) The Chief of Counsel for War
Crimes, United States, may invite others of the United Nations to
participate in the prosecution. (Ordinance 7, art. III, par. (_b_).)
The Ordinance provides:
“Article X
“The determinations of the International Military Tribunal
in the judgments in Case No. 1 that invasions, aggressive
acts, aggressive wars, crimes, atrocities or inhumane acts
were planned or occurred, shall be binding on the tribunals
established hereunder and shall not be questioned except
insofar as the participation therein or knowledge thereof
by any particular person may be concerned. Statements of the
International Military Tribunal in the judgment in Case No.
1 constitute proof of the facts stated, in the absence of
substantial new evidence to the contrary.”
The sentences authorized by Ordinance No. 7 are made definite only by
reference to those provided for by C. C. Law 10. (Ordinance No. 7, Art.
XVI).
As thus established the Tribunal is authorized and empowered to try
and punish the major war criminals of the European Axis and “those
German officers and men and members of the Nazi Party who have been
responsible for, or have taken a consenting part in,” or have aided,
abetted, ordered, or have been connected with plans or enterprises
involving the commission of the offenses defined in C. C. Law 10.
SOURCE OF AUTHORITY OF C. C. LAW 10
Having identified the instruments which purport to establish the
jurisdiction of this Tribunal, we next consider the legal basis
of those instruments. The unconditional surrender of Germany took
place on 8 May 1945.[556] The surrender was preceded by the complete
disintegration of the central government and was followed by the
complete occupation of all of Germany. There were no opposing German
forces in the field; the officials who during the war had exercised
the powers of the Reich Government were either dead, in prison, or
in hiding. On 5 June 1945 the Allied Powers announced that they
“hereby assume supreme authority with respect to Germany, including
all the powers possessed by the German Government, the High Command,
and any state, municipal or local government or authority,” and
declared that “there is no central government or authority in Germany
capable of accepting responsibility for the maintenance of order, the
administration of the country, and compliance with the requirements
of the victorious powers.” The Four Powers further declared that they
“will hereafter determine the boundaries of Germany or any part thereof
and the status of Germany or of any area at present being a part of
German territory.”[557]
On 2 August 1945 at Berlin, President Truman, Generalissimo Stalin,
and Prime Minister Attlee, as heads of the Allied Powers, entered
into a written agreement setting forth the principles which were to
govern Germany during the initial control period. Reference to that
document will disclose the wide scope of authority and control which
was assumed and exercised by the Allied Powers. They assumed “supreme
authority” and declared that it was their purpose to accomplish
complete demilitarization of Germany; to destroy the National Socialist
Party, to prevent Nazi propaganda; to abolish all Nazi laws which
“established discrimination on grounds of race, creed, or political
opinion * * * whether legal, administrative, or otherwise”; to
control education; to reorganize the judicial system in accordance
with the principles of democracy and of equal rights; to accomplish
the decentralization of the political structure. The agreement
provided that “for the time being no central German government
shall be established”. In the economic field they assumed control
of “German industry and all economic and financial international
transactions”.[558] Finally, the Allies reaffirmed their intention to
bring the Nazi war criminals to swift and sure justice.
It is this fact of the complete disintegration of the government in
Germany, followed by unconditional surrender and by occupation of the
territory, which explains and justifies the assumption and exercise of
supreme governmental power by the Allies. The same fact distinguishes
the present occupation of Germany from the type of occupation which
occurs when, in the course of actual warfare, an invading army enters
and occupies the territory of another state, whose government is
still in existence and is in receipt of international recognition,
and whose armies, with those of its allies, are still in the field.
In the latter case the occupying power is subject to the limitations
imposed upon it by the Hague Convention and by the laws and customs
of war. In the former case (the occupation of Germany) the Allied
Powers were not subject to those limitations. By reason of the complete
breakdown of government, industry, agriculture, and supply, they were
under an imperative humanitarian duty of far wider scope to reorganize
government and industry and to foster local democratic governmental
agencies throughout the territory.
In support of the distinction made, we quote from two recent and
scholarly articles in “The American Journal of International Law.”
“On the other hand, a distinction is clearly warranted between
measures taken by the Allies prior to destruction of the German
Government and those taken thereafter. Only the former need
be tested by the Hague Regulations, which are inapplicable to
the situation now prevailing in Germany. Disappearance of the
German State as a belligerent entity, necessarily implied in the
Declaration of Berlin of 5 June 1945, signifies that a true
state of war--and hence _belligerent_ occupation--no longer
exists within the meaning of international law.”[559]
* * * * *
“Through the subjugation of Germany the outcome of the war has been
decided in the most definite manner possible. One of the prerogatives
of the Allies resulting from the subjugation is the right to occupy
German territory at their discretion. This occupation is, both legally
and factually, fundamentally different from the belligerent occupation
contemplated in the Hague Regulations, as can be seen from the
following observations.
“The provisions of the Hague Regulations restricting the rights of an
occupant refer to a belligerent who, favored by the changing fortunes
of war, actually exercises military authority over enemy territory and
thereby prevents the legitimate sovereign--who remains the legitimate
sovereign--from exercising his full authority. The Regulations draw
important legal conclusions from the fact that the legitimate sovereign
may at any moment himself be favored by the changing fortunes of
war, reconquer the territory, and put an end to the occupation. ‘The
occupation applies only to territory where such authority (i.e., the
military authority of the hostile state) is established and can be
exercised’ (_Art. 42, 2_). In other words, the Hague Regulations
think of an occupation which is a phase of an as yet undecided war.
Until 7 May 1945, the Allies were belligerent occupants in the
then occupied parts of Germany, and their rights and duties were
circumscribed by the respective provisions of the Hague Regulations.
As a result of the subjugation of Germany, the legal character of the
occupation of German territory was drastically changed.”[560]
The view expressed by the two authorities cited appears to have
the support of the International Military Tribunal judgment in the
case against Goering, et al. In that case the defendants contended
that Germany was not bound by the rules of land warfare in occupied
territory because Germany had completely subjugated those countries and
incorporated them into the German Reich. The Tribunal refers to the
“doctrine of subjugation, dependent as it is upon military conquest,”
and holds that it is unnecessary to decide whether the doctrine has
any application where the subjugation is the result of the crime of
aggressive war. The reason given is significant. The Tribunal said:
“The doctrine was never considered to be applicable so long
as there was an army in the field attempting to restore the
occupied countries to their true owners, and in this case,
therefore, the doctrine could not apply to any territories
occupied after 1 September 1939.”[561]
The clear implication from the foregoing is that the Rules of Land
Warfare apply to the conduct of a belligerent in occupied territory so
long as there is an army in the field attempting to restore the country
to its true owner, but that those rules do not apply when belligerency
is ended, there is no longer an army in the field, and, as in the case
of Germany, subjugation has occurred by virtue of military conquest.
The views which we have expressed are supported by modern scholars
of high standing in the field of international law. While they
differ somewhat in theory as to the present legal status of Germany
and concerning the situs of residual sovereignty, they appear to be
in accord in recognizing that the powers and rights of the Allied
Governments under existing conditions in Germany are not limited by
the provisions of the Hague Regulations concerning land warfare. For
reference see--
“The Legal Status of Germany According to the Declaration
of Berlin,” by Hans Kelsen, Professor of International Law,
University of California, American Journal of International Law,
1945.
“Germany’s Present Status,” by F. A. Mann, Doctor of Law
(Berlin) (London), paper read on 5 March 1947 before the Grotius
Society in London, published in Sueddeutsche Juristen-Zeitung
(Lawyers’ Journal of Southern Germany), volume 2, No. 9,
September 1947.
“The Influence of the Legal Position of Germany upon the War
Crimes Trial,” Dr. Hermann Mosler, Assistant Professor of the
University of Bonn, published in Sueddeutsche Juristen-Zeitung,
volume 2, No. 7, July 1947.
Article published in Neue Justiz (New Justice), by Dr. Alfons
Steininger, Berlin, volume I, No. 7, July 1947, pages 146–150.
In an article by George A. Zinn, Minister of Justice of Hessen,
entitled “Germany as the Problem of the Law of States,” the author
points out that if it be assumed that the present occupation of Germany
constitutes “belligerent occupation” in the traditional sense, then
all legal and constitutional changes brought about since 7 May 1945
would cease to be valid once the Allied troops were withdrawn and all
Nazi laws would again and automatically become the law of Germany, a
consummation devoutly to be avoided.
Both of the authorities first cited directly assert that the situation
at the time of the unconditional surrender resulted in the transfer of
sovereignty to the Allies. In this they are supported by the weighty
opinion of Lord Wright, eminent jurist of the British House of Lords
and head of the United Nations War Crimes Commission. For our purposes,
however, it is unnecessary to determine the present situs of “residual
sovereignty.” It is sufficient to hold that, by virtue of the situation
at the time of unconditional surrender, the Allied Powers were
provisionally in the exercise of supreme authority, valid and effective
until such time as, by treaty or otherwise, Germany shall be permitted
to exercise the full powers of sovereignty. We hold that the legal
right of the four Powers to enact C. C. Law 10 is established and that
the jurisdiction of this Tribunal to try persons charged as major war
criminals of the European Axis must be conceded.
We have considered it proper to set forth our views concerning the
nature and source of the authority of C. C. Law 10 in its aspect as
substantive legislation. It would have been possible to treat that law
as a binding rule regardless of the righteousness of its provisions,
but its justification must ultimately depend upon accepted principles
of justice and morality, and we are not content to treat the statute
as a mere rule of thumb to be blindly applied. We shall shortly
demonstrate that the IMT Charter and C. C. Law 10 provide for the
punishment of crimes against humanity. As set forth in the indictment,
the acts charged as crimes against humanity were committed before the
occupation of Germany. They were described as racial persecutions by
Nazi officials perpetrated upon German nationals. The crime of genocide
is an illustration. We think that a tribunal charged with the duty of
enforcing these rules will do well to consider, in determining the
degree of punishment to be imposed, the moral principles which underlie
the exercise of power. For that reason we have contrasted the situation
when Germany was in belligerent occupation of portions of Poland, with
the situation existing under the Four-Power occupation of Germany since
the surrender. The occupation of Poland by Germany was in every sense
belligerent occupation, precarious in character, while opposing armies
were still in the field. The German occupation of Poland was subject
to the limitations imposed by the Hague Convention and the laws and
customs of land warfare. In view of these limitations we doubt if any
person would contend that Germany, during that belligerent occupation,
could lawfully have provided tribunals for the punishment of Polish
officials who, before the occupation by Germany, had persecuted their
own people, to wit: Polish nationals. Now the Four Powers are providing
by C. C. Law 10 for the punishment of German officials who, before the
occupation of Germany, passed and enforced laws for the persecution
of German nationals upon racial grounds. It appears that it would be
equally difficult to justify such action of the Four Powers if the
situation here were the same as the situation which existed in Poland
under German occupation and if consequently the limitations of the
Hague Convention were applicable. For this reason it seems appropriate
to point out the distinction between the two situations. As we have
attempted to show, the moral and legal justification under principles
of international law which authorizes the broader scope of authority
under C. C. Law 10 is based on the fact that the Four Powers are not
now in belligerent occupation or subject to the limitations set forth
in the rules of land warfare. Rather, they have justly and legally
assumed the broader task in Germany which they have solemnly defined
and declared, to wit: the task of reorganizing the German Government
and economy and of punishing persons who, prior to the occupation,
were guilty of crimes against humanity committed against their own
nationals. We have pointed out that this difference in the nature of
the occupation is due to the unconditional surrender of Germany and
the ensuing chaos which required the Four Powers to assume provisional
supreme authority throughout the German Reich. We are not attempting to
pass judicially upon a question which is solely within the jurisdiction
of the political departments of the Four Powers. The fixing of the date
of the formal end of the war and similar matters will, of course, be
dependent upon the action of the political departments. We do not usurp
their function. We merely inquire, in the course of litigation when
the lives of men are dependent upon decisions which must be both legal
and just, whether the great objectives announced by the Four Powers
are themselves in harmony with the principles of international law and
morality.
In declaring that the expressed determination of the victors to punish
German officials who slaughtered their own nationals is in harmony
with international principles of justice, we usurp no power; we only
take judicial notice of the declarations already made by the chief
executives of the United States and her former Allies. The fact that C.
C. Law 10 on its face is limited to the punishment of German criminals
does not transform this Tribunal into a German court. The fact that the
four powers are exercising supreme legislative authority in governing
Germany and for the punishment of German criminals does not mean that
the jurisdiction of this Tribunal rests in the slightest degree upon
any German law, prerogative, or sovereignty. We sit as a Tribunal
drawing its sole power and jurisdiction from the will and command of
the Four occupying Powers.
Examination will disclose that C. C. Law 10 possesses a dual aspect.
In its first aspect and on its face it purports to be a statute
defining crimes and providing for the punishment of persons who violate
its provisions. It is the legislative product of the only body in
existence having and exercising general lawmaking power throughout the
Reich. The first International Military Tribunal in the case against
Goering, et al., recognized similar provisions of the IMT Charter as
binding legislative enactments. We quote:
“The making of the Charter was the exercise of the sovereign
legislative power by the countries to which the German Reich
unconditionally surrendered; and the undoubted right of these
countries to legislate for the occupied territories has been
recognized by the civilized world.”[562]
“These provisions are binding upon the Tribunal _as the law to
be applied to the case_.”[563] [Emphasis added.]
Since the IMT Charter and C. C. Law 10 are the products of legislative
action by an international authority, it follows of necessity that
there is no national constitution of any one state which could be
invoked to invalidate the substantive provisions of such international
legislation. It can scarcely be argued that a court which owes its
existence and jurisdiction solely to the provisions of a given statute
could assume to exercise that jurisdiction and then, in the exercise
thereof, declare invalid the act to which it owes its existence.
Except as an aid to construction, we cannot and need not go behind the
statute. This was discussed authoritatively by the first International
Military Tribunal in connection with the contention of defendants that
the IMT Charter was invalid because it partook of the nature of _ex
post facto_ legislation. That Tribunal said: “The Charter makes the
planning or waging of a war of aggression or a war in violation of
international treaties a crime; and _it is, therefore, not strictly
necessary to consider whether and to what extent aggressive war was a
crime before the execution of the London Agreement_.”[564] [Emphasis
added.]
As recently said by an American authority--
“The Charter was, of course, binding upon the Tribunal in the
same way that a constitutional statute would bind a domestic
court.”[565]
In its aspect as a statute defining crime and providing punishment
the limited purpose of C. C. Law 10 is clearly set forth. It is an
exercise of supreme legislative power in and for Germany. It does not
purport to establish by legislative act any new crimes of international
applicability. The London Agreement refers to the trial of “those
German officers and men and members of the Nazi Party who have been
responsible for * * * atrocities.” C. C. Law 10 recites that it was
enacted to establish a “uniform legal basis _in Germany_” for the
prosecution of war criminals. [Emphasis added.]
Military Government Ordinance No. 7 was enacted pursuant to the powers
of the Military Government for the United States Zone of Occupation
“_within Germany_.” [Emphasis added.]
We concur in the view expressed by the first International Military
Tribunal as quoted above, but we observe that the decision was
supported on two grounds. The Tribunal in that case did not stop with
the declaration that it was bound by the IMT Charter as an exercise of
sovereign legislative power. The opinion went on to show that the IMT
Charter was also “the expression of international law existing at the
time of its creation.” All of the war crimes and many, if not all, of
the crimes against humanity as charged in the indictment in the case
at bar were, as we shall show, violative of preexisting principles of
international law. To the extent to which this is true, C. C. Law 10
may be deemed to be a codification rather than original substantive
legislation. Insofar as C. C. Law 10 may be thought to go beyond
established principles of international law, its authority, of course,
rests upon the exercise of the “sovereign legislative power” of the
countries to which the German Reich unconditionally surrendered.
We have discussed C. C. Law 10 in its first aspect as substantive
legislation. We now consider its other aspect. Entirely aside from
its character as substantive legislation, C. C. Law 10, together with
Ordinance No. 7, provides procedural means previously lacking for
the enforcement within Germany of certain rules of international law
which exist throughout the civilized world independently of any new
substantive legislation. (_Ex parte Quirin_, 317 U.S. 1; 87 L. ed.
3; 63 S. Ct. 2.) International law is not the product of statute. Its
content is not static. The absence from the world of any governmental
body authorized to enact substantive rules of international law has not
prevented the progressive development of that law. After the manner of
the English common law it has grown to meet the exigencies of changing
conditions.
It must be conceded that the circumstance which gives to principles of
international conduct the dignity and authority of law is their general
acceptance as such by civilized nations, which acceptance is manifested
by international treaties, conventions, authoritative textbooks,
practice, and judicial decisions.[566]
It does not, however, follow from the foregoing statements that general
acceptance of a rule of international conduct must be manifested by
express adoption thereof by all civilized states.
“The basis of the law, that is to say, what has given to some
principles of general applicability the quality or character of
law has been the acquiescence of the several independent states
which were to be governed thereby.”[567]
[Page 5]
“The requisite acquiescence on the part of individual states
has not been reflected in formal or specific approval of every
restriction which the acknowledged requirements of international
justice have appeared, under the circumstances of the particular
case, to dictate or imply. It has been rather a yielding to
principle, and by implication, to logical applications thereof
which have begotten deep-rooted and approved practices.”
[Page 9]
“It should be observed, however, that acquiescence in a proposal
may be inferred from the failure of interested states to make
appropriate objection to practical applications of it. Thus
it is that changes in the law may be wrought gradually and
imperceptibly, like those which by process of accretion alter
the course of a river and change an old boundary. Without
conventional arrangement, and by practices manifesting a common
and sharp deviation from rules once accepted as the law, the
community of states may in fact modify that which governs its
members.”
[Page 11]
“States may through the medium of an international organization
such as the League of Nations, itself the product of agreement,
find it expedient to create and accept fresh restraints that
ultimately win widest approval and acceptance as a part of
the law of nations. The acts of the organization may thus in
fact become sources of international law, at least in case the
members thereof have by their general agreement clothed it with
power to create and put into force fresh rules of restraint.”
* * * * *
“But international law is progressive. The period of growth
generally coincides with the period of world upheavals. The
pressure of necessity stimulates the impact of natural law and
of moral ideas and converts them into rules of law deliberately
and overtly recognized by the consensus of civilized mankind.
The experience of two great world wars within a quarter of
a century cannot fail to have deep repercussions on the
senses of the peoples and their demand for an international
law which reflects international justice. I am convinced that
international law has progressed, as it is bound to progress
if it is to be a living and operative force in these days of
widening sense of humanity.”[568]
For the reasons stated by Lord Wright, this growth by accretion has
been greatly accelerated since the First World War.[569] The IMT
Charter, the IMT judgment, and C. C. Law 10 are merely “great new
cases in the book of international law.” They constitute authoritative
recognition of principles of individual penal responsibility in
international affairs which, as we shall show, had been developing for
many years. Surely C. C. Law 10, which was enacted by the authorized
representatives of the four greatest Powers on earth, is entitled
to judicial respect when it states, “Each of the following acts is
_recognized_ as a crime.” [Emphasis added.] Surely the requisite
international approval and acquiescence is established when 23 states,
including all of the great powers, have approved the London Agreement
and the IMT Charter without dissent from any state. Surely the IMT
Charter must be deemed declaratory of the principles of international
law in view of its recognition as such by the General Assembly of the
United Nations. We quote:
“The General Assembly recognizes the obligation laid upon it
by article 13, paragraph 1 (a) of the Charter, to initiate
studies and make recommendations for the purpose of encouraging
the progressive development of international law and its
codification;
“Takes note of the agreement for the establishment of an
International Military Tribunal for the prosecution and
punishment of the major war criminals of the European Axis,
signed in London on 8 August 1945, and of the Charter annexed
thereto and of the fact that similar principles have been
adopted in the Charter of the International Military Tribunal
for the trial of the major war criminals in the Far East,
proclaimed at Tokyo on 19 January 1946;
“Therefore--
“Affirms the principles of international law recognized by
the Charter of the Nuernberg Tribunal and the judgment of the
Tribunal;
“Directs the Committee on Codification of International Law
established by the resolution of the General Assembly of
* * December 1946, to treat as a matter of primary importance
plans for the formulation, in the text of a general codification
of offenses against the peace and security of mankind, or of an
International Criminal Code, of the principles recognized in the
Charter of the Nuernberg Tribunal and in the judgment of the
Tribunal.”[570]
Before the International Military Tribunal had convened for the trial
of Goering, et al., the opinion had been expressed that through the
process of accretion the provisions of the IMT Charter and consequently
of C. C. Law 10 had already, in large measure, become incorporated into
the body of international law. We quote:
“I understand the Agreement to import that the three classes
of persons which it specifies are war criminals, that the acts
mentioned in classes (_a_), (_b_), and (_c_) are
crimes for which there is properly individual responsibility;
that they are not crimes because of the Agreement of the four
Governments, but that the Governments have scheduled them as
coming under the jurisdiction of the Tribunal because they are
already crimes by existing law. On any other assumption the
Court would not be a court of law but a manifestation of power.
The principles which are declared in the Agreement are not laid
down as an arbitrary direction to the Court but are intended
to define and do, in my opinion, accurately define what is the
existing international law on these matters.”[571]
A similar view was expressed in the judgment of the International
Military Tribunal. We quote:
“The Charter is not an arbitrary exercise of power on the part
of the victorious nations, but in the view of the Tribunal,
as will be shown, it is the expression of international law
existing at the time of its creation; and to that extent is
itself a contribution to international law.”[572]
We are empowered to determine the guilt or innocence of persons accused
of acts described as “war crimes” and “crimes against humanity”
under rules of international law. At this point, in connection with
cherished doctrines of national sovereignty, it is important to
distinguish between the rules of common international law which are of
universal and superior authority on the one hand, and the provisions
for enforcement of those rules which are by no means universal on the
other. As to the superior authority of international law, we quote:
“If there exists a body of international law, which states,
from a sense of legal obligation do in fact observe in
their relations with each other, and which they are unable
individually to alter or destroy, that law must necessarily be
regarded as the law of each political entity deemed to be a
state, and as prevailing throughout places under its control.
This is true although there be no local affirmative action
indicating the adoption by the individual state of international
law.
“International law, as the local law of each state, is
necessarily superior to any administrative regulation or statute
or public act at variance with it. There can be no conflict on
an equal plane.”[573]
This universality and superiority of international law does not
necessarily imply universality of its enforcement. As to the punishment
of persons guilty of violating the laws and customs of war (war crimes
in the narrow sense), it has always been recognized that tribunals may
be established and punishment imposed by the state into whose hands the
perpetrators fall. These rules of international law were recognized
as paramount, and jurisdiction to enforce them by the injured
belligerent government, whether within the territorial boundaries of
the state or in occupied territory, has been unquestioned. (_Ex parte
Quirin, supra_; In re: Yamashita, 327 U.S. 1, 90 L. ed.) However,
enforcement of international law has been traditionally subject to
practical limitations. Within the territorial boundaries of a state
having a recognized, functioning government presently in the exercise
of sovereign power throughout its territory, a violator of the rules
of international law could be punished only by the authority of the
officials of that state. The law is universal, but such a state
reserves unto itself the exclusive power within its boundaries to apply
or withhold sanctions. Thus, notwithstanding the paramount authority
of the substantive rules of common international law, the doctrines
of national sovereignty have been preserved through the control of
enforcement machinery. It must be admitted that Germans were not the
only ones who were guilty of committing war crimes; other violators of
international law could, no doubt, be tried and punished by the state
of which they were nationals, by the offended state if it can secure
jurisdiction of the person, or by an international tribunal if of
competent authorized jurisdiction.
Applying these principles, it appears that the power to punish
violators of international law in Germany is not solely dependent on
the enactment of rules of substantive penal law applicable only in
Germany. Nor is the apparent immunity from prosecution of criminals in
other states based on the absence there of the rules of international
law which we enforce here. Only by giving consideration to the
extraordinary and temporary situation in Germany can the procedure here
be harmonized with established principles of national sovereignty. In
Germany an international body (the Control Council) has assumed and
exercised the power to establish judicial machinery for the punishment
of those who have violated the rules of the common international law, a
power which no international authority without consent could assume or
exercise within a state having a national government presently in the
exercise of its sovereign powers.
_Construction of C. C. Law 10 War Crimes and Crimes
Against Humanity_
We next approach the problem of the construction of C. C. Law 10, for
whatever the scope of international common law may be, the power to
enforce it in this case is defined and limited by the terms of the
jurisdictional act.
The first penal provision of C. C. Law No. 10, with which we are
concerned is as follows:
“Article II
“1.--Each of the following acts is recognized as a crime:
* * * * * * *
(_b_) _War Crimes._ Atrocities or offences against
persons or property constituting violations of the laws or
customs of war, including but not limited to, murder, ill
treatment or deportation to slave labour or for any other
purpose, of civilian population from occupied territory, murder
or ill treatment of prisoners of war or persons on the seas,
killing of hostages, plunder of public or private property,
wanton destruction of cities, towns or villages, or devastation
not justified by military necessity.”
Here we observe the controlling effect of common international law
as such, for the statutes by which we are governed have adopted and
incorporated the rules of international law as the rules by which war
crimes are to be identified. This legislative practice by which the
laws or customs of war are incorporated by reference into a statute
is not unknown in the United States. (See cases cited in _Ex parte
Quirin, supra_.)
The scope of inquiry as to war crimes is, of course, limited by the
provisions, properly construed, of the IMT Charter and C. C. Law 10.
In this particular, the two enactments are in substantial harmony.
Both indicate by inclusion and exclusion the intent that the term “war
crimes” shall be employed to cover acts in violation of the laws and
customs of war directed against non-Germans, and shall not include
atrocities committed by Germans against their own nationals. It will
be observed that article 6 of the IMT Charter enumerates as war crimes
acts against prisoners of war, persons on the seas, hostages, wanton
destruction of cities and the like, devastation not justified by
military necessity, plunder of public or private property (obviously
not property of Germany or Germans), and “ill-treatment or deportation
to slave labor or for any other purpose of civilian population _of
or in_ occupied territory.” [Emphasis added.] C. C. Law 10,
_supra_, employs similar language. It reads--
“ * * * ill treatment or deportation to slave labour or for
any other purpose, _of civilian population from occupied
territory_.” [Emphasis added.]
This legislative intent becomes more manifest when we consider the
provisions of the IMT Charter and of C. C. Law 10 which deal with
crimes against humanity. Article 6 of the IMT Charter defines crimes
against humanity, as follows:
“ * * * murder, extermination, enslavement, deportation, and
other inhumane acts committed against any civilian population,
before or during the war; or persecutions on political, racial
or religious grounds in execution of or in connection with any
crime within the jurisdiction of the Tribunal, whether or not in
violation of the domestic law of the country where perpetrated.”
C. C. Law 10 defines as criminal:
“ * * * Atrocities and offences, including but not limited to
murder, extermination, enslavement, deportation, imprisonment,
torture, rape, or other inhumane acts committed against any
civilian population, or persecutions on political, racial or
religious grounds whether or not in violation of the domestic
laws of the country where perpetrated.”
Obviously, these sections are not surplusage. They supplement the
preceding sections on war crimes and include within their prohibition
not only war crimes, but also acts not included within the preceding
definitions of war crimes. In place of atrocities committed against
civilians of or in or from occupied territory, these sections prohibit
atrocities “against any civilian population.” Again, persecutions on
racial, religious, or political grounds are within our jurisdiction
“whether or not in violation of the domestic laws of the country
where perpetrated.” We have already demonstrated that C. C. Law 10
is specifically directed to the punishment of German criminals. It
is therefore clear that the intent of the statute on crimes against
humanity is to punish for persecutions and the like, whether in
accord with or in violation of the domestic laws of the country where
perpetrated, to wit: Germany. The intent was to provide that compliance
with German law should be no defense. Article III of C. C. Law 10
clearly demonstrates that acts by Germans against German nationals may
constitute crimes against humanity within the jurisdiction of this
Tribunal to punish. That article provides that each occupying authority
within its zone of occupation shall have the right to cause persons
suspected of having committed a crime to be arrested and “(_d_)
shall have the right to cause all persons so arrested * * * to be
brought to trial * * *. Such Tribunal may, in the case of crimes
committed by persons of German citizenship or nationality against other
persons of German citizenship or nationality, or stateless persons, be
a German court, if authorized by the occupying authorities.”
As recently asserted by General Telford Taylor before Tribunal IV, in
the case of the United States _vs._ Flick, et al.:[574]
“This constitutes an explicit recognition that acts committed
by Germans against other Germans are punishable as crimes under
Law No. 10, according to the definitions contained therein,
since only such crimes may be tried by German courts, in the
discretion of the occupying power. If the occupying power fails
to authorize German courts to try crimes committed by Germans
against other Germans (and in the American Zone of Occupation
no such authorization has been given), then these cases are
tried only before non-German tribunals, such as these military
tribunals.”
Our jurisdiction to try persons charged with crimes against humanity
is limited in scope, both by definition and illustration, as appears
from C. C. Law 10. It is not the isolated crime by a private German
individual which is condemned, nor is it the isolated crime perpetrated
by the German Reich through its officers against a private individual.
It is significant that the enactment employs the words “against any
civilian population” instead of “against any civilian individual.”
The provision is directed against offenses and inhumane acts and
persecutions on political, racial, or religious grounds systematically
organized and conducted by or with the approval of government.
The opinion of the first International Military Tribunal in the case
against Goering, et al., lends support to our conclusion. That opinion
recognized the distinction between war crimes and crimes against
humanity, and said:
“* * * insofar as the inhumane acts charged in the indictment,
and committed after the beginning of the war, did not constitute
war crimes, they were all committed in execution of, or in
connection with, the aggressive war, and therefore constituted
crimes against humanity.”[575]
The evidence to be later reviewed establishes that certain inhumane
acts charged in count three of the indictment were committed in
execution of, and in connection with, aggressive war and were therefore
crimes against humanity even under the provisions of the IMT Charter,
but it must be noted that C. C. Law 10 differs materially from the
Charter. The latter defines crimes against humanity as inhumane acts,
etc., committed “in execution of, or in connection with, any crime
within the jurisdiction of the tribunal”, whereas in C. C. Law 10 the
words last quoted are deliberately omitted from the definition.
_THE EX POST FACTO PRINCIPLE_
The defendants claim protection under the principle _nullum crimen
sine lege_, though they withheld from others the benefit of that
rule during the Hitler regime. Obviously the principle in question
constitutes no limitation upon the power or right of the Tribunal
to punish acts which can properly be held to have been violations
of international law when committed. By way of illustration, we
observe that C. C. Law 10, article II, paragraph 1(_b_), “_War
Crimes_,” has by reference incorporated the rules by which war
crimes are to be identified. In all such cases it remains only for the
Tribunal, after the manner of the common law, to determine the content
of those rules under the impact of changing conditions.
Whatever view may be held as to the nature and source of our authority
under C. C. Law 10 and under common international law, the _ex post
facto_ rule, properly understood, constitutes no legal nor moral
barrier to prosecution in this case.
Under written constitutions the _ex post facto_ rule condemns
statutes which define as criminal, acts committed before the law
was passed, but the _ex post facto_ rule cannot apply in the
international field as it does under constitutional mandate in the
domestic field. Even in the domestic field the prohibition of the
rule does not apply to the decisions of common law courts, though the
question at issue be novel. International law is not the product of
statute for the simple reason that there is as yet no world authority
empowered to enact statutes of universal application. International
law is the product of multipartite treaties, conventions, judicial
decisions and customs which have received international acceptance
or acquiescence. It would be sheer absurdity to suggest that the
_ex post facto_ rule, as known to constitutional states, could
be applied to a treaty, a custom, or a common law decision of an
international tribunal, or to the international acquiescence which
follows the event. To have attempted to apply the _ex post facto_
principle to judicial decisions of common international law would
have been to strangle that law at birth. As applied in the field
of international law, the principle _nullum crimen sine lege_
received its true interpretation in the opinion of the IMT in the case
versus Goering, et al. The question arose with reference to crimes
against the peace, but the opinion expressed is equally applicable to
war crimes and crimes against humanity. The Tribunal said:
“In the first place, it is to be observed that the maxim
_nullum crimen sine lege_ is not a limitation of
sovereignty, but is in general a principle of justice. To assert
that it is unjust to punish those who in defiance of treaties
and assurances have attacked neighboring states without warning
is obviously untrue, for in such circumstances the attacker must
know that he is doing wrong, and so far from it being unjust to
punish him, it would be unjust if his wrong were allowed to go
unpunished.”[576]
To the same effect we quote the distinguished statesman and
international authority, Henry L. Stimson--
“A mistaken appeal to this principle has been the cause of much
confusion about the Nuremberg trial. It is argued that parts
of the Tribunal’s Charter, written in 1945, make crimes out
of what before were activities beyond the scope of national
and international law. Were this an exact statement of the
situation we might well be concerned, but it is not. It rests
on a misconception of the whole nature of the law of nations.
International law is not a body of authoritative codes or
statutes; it is the gradual expression, case by case, of the
moral judgments of the civilized world. As such, it corresponds
precisely to the common law of Anglo-American tradition. We can
understand the law of Nuremberg only if we see it for what it
is--a great new case in the book of international law, and not a
formal enforcement of codified statutes. A look at the charges
will show what I mean.
* * * * *
“It was the Nazi confidence that we would never chase and catch
them, and not a misunderstanding of our opinion of them, that
led them to commit their crimes. Our offense was thus that of
the man who passed by on the other side. That we have finally
recognized our negligence and named the criminals for what they
are is a piece of righteousness too long delayed by fear.”[577]
That the conception of retrospective legislation which prevails under
constitutional provisions in the United States does not receive
complete recognition in other enlightened legal systems is illustrated
by the decision in Phillips _vs._ Eyre, L.R. 6 Q.B. 1 [27
(1870–71)] described by Lord Wright as “a case of great authority.” We
quote:
“In fine, allowing the general inexpediency of retrospective
legislation, it cannot be pronounced naturally or necessarily
unjust. There may be occasions and circumstances involving the
safety of the state, or even the conduct of individual subjects,
the justice of which, prospective laws made for ordinary
occasions and the usual exigencies of society for want of
prevision fail to meet, and in which * * * the inconvenience and
wrong, _summum jus summa injuria_.”
We quote with approval the words of Sir David Maxwell-Fyfe:
“With regard to ‘crimes against humanity’, this at any rate is
clear. The Nazis, when they persecuted and murdered countless
Jews and political opponents in Germany, knew that what they
were doing was wrong and that their actions were crimes which
had been condemned by the criminal law of every civilized state.
When these crimes were mixed with the preparation for aggressive
war and later with the commission of war crimes in occupied
territories, it cannot be a matter of complaint that a procedure
is established for their punishment.”[578]
Concerning the mooted _ex post facto_ issue, Professor Wechsler of
Columbia University writes:
“These are, indeed, the issues that are currently mooted. But
there are elements in the debate that should lead us to be
suspicious of the issues as they are drawn in these terms. For,
most of those who mount the attack on one or another of these
contentions hasten to assure us that their plea is not one of
immunity for the defendants; they argue only that they should
have been disposed of politically, that is, dispatched out of
hand. This is a curious position indeed. A punitive enterprise
launched on the basis of general rules, administered in an
adversary proceeding under a separation of prosecutive and
adjudicative powers is, in the name of law and justice, asserted
to be less desirable than an _ex parte_ execution list or a
drumhead court martial constituted in the immediate aftermath of
the war. I state my view reservedly when I say that history will
accept no conception of law, politics or justice that supports a
submission in these terms.”
Again, he says:
“There is, indeed, too large a disposition among the defenders
of Nuremberg to look for stray tags of international
pronouncements and reason therefrom that the law of Nuremberg
was previously fully laid down. If the Kellogg-Briand Pact or
a general conception of international obligation sufficed to
authorize England, and would have authorized us, to declare war
on Germany in defense of Poland--and in this enterprise to kill
countless thousands of German soldiers and civilians--can it be
possible that it failed to authorize punitive action against
individual Germans judicially determined to be responsible
for the Polish attack? To be sure, we would demand a more
explicit authorization for punishment in domestic law, for we
have adopted for the protection of individuals a prophylactic
principle absolutely forbidding retroactivity that we can afford
to carry to that extreme. International society, being less
stable, can afford less luxury. We admit that in other respects.
Why should we deny it here?”[579]
Many of the laws of the Weimar era which were enacted for the
protection of human rights have never been repealed. Many acts
constituting war crimes or crimes against humanity as defined in C.
C. Law 10 were committed or permitted in direct violation also of the
provisions of the German criminal law. It is true that this Tribunal
can try no defendant merely because of a violation of the German penal
code, but it is equally true that the rule against retrospective
legislation, as a rule of justice and fair play, should be no defense
if the act which he committed in violation of C. C. Law 10 was also
known to him to be a punishable crime under his own domestic law.
As a principle of justice and fair play, the rule in question will
be given full effect. As applied in the field of international law
that principle requires proof before conviction that the accused knew
or should have known that in matters of international concern he was
guilty of participation in a nationally organized system of injustice
and persecution shocking to the moral sense of mankind, and that he
knew or should have known that he would be subject to punishment
if caught. Whether it be considered codification or substantive
legislation, no person who knowingly committed the acts made punishable
by C. C. Law 10 can assert that he did not know that he would be
brought to account for his acts. Notice of intent to punish was
repeatedly given by the only means available in international affairs,
namely, the solemn warning of the governments of the states at war
with Germany. Not only were the defendants warned of swift retribution
by the express declaration of the Allies at Moscow of 30 October
1943. Long prior to the Second World War the principle of personal
responsibility had been recognized.
“The Council of the Conference of Paris of 1919 undertook, with
the aid of the Commission on the Responsibility of the Authors
of the War and on Enforcement of Penalties, to incorporate
in the treaty of peace arrangements for the punishment
of individuals charged with responsibility for certain
offenses.”[580]
That Commission on Responsibility of Authors of the War found that--
“The war was carried on by the central empires, together with
their allies, Turkey and Bulgaria, by barbarous or illegitimate
methods in violation of the established laws and customs of war
and the elementary laws of humanity.”[581]
As its conclusion, the Commission solemnly declared:
“All persons belonging to enemy countries, however high their
position may have been, without distinction of rank, including
Chiefs of States, who have been guilty of offences against the
laws and customs of war or the laws of humanity, are liable to
criminal prosecution.”[582]
The American members of that Commission, though in substantial accord
with the finding, nevertheless expressed a reservation as to “the laws
of humanity.” The express wording of the London Charter and of C. C.
Law 10 constitutes clear evidence of the fact that the position of the
American Government is now in harmony with the Declaration of the Paris
Commission concerning the “laws of humanity.” We quote further from the
report of the Paris Commission:
“Every belligerent has, according to international law, the
power and authority to try the individuals alleged to be guilty
of the crimes of which an enumeration has been given in chapter
II on Violations of the Laws and Customs of War, if such persons
have been taken prisoners or have otherwise fallen into its
power. Each belligerent has, or has power to set up, pursuant to
its own legislation, an appropriate tribunal, military or civil,
for the trial of cases.”[583]
According to the Treaty of Versailles, article 228, the German
Government itself “recognized the right to the Allied and associated
powers to bring before military tribunals persons accused of offenses
against the laws and customs of war. Such persons who might be found
guilty were to be sentenced to punishments ‘laid down by law’.”[584]
Some Germans were, in fact, tried for the commission of such crimes.
The foregoing considerations demonstrate that the principle _nullum
crimen sine lege_, when properly understood and applied, constitutes
no legal or moral barrier to prosecution in the case at bar.
CRIMES AGAINST HUMANITY AS VIOLATIVE
OF INTERNATIONAL LAW
C. C. Law 10 is not limited to the punishment of persons guilty of
violating the laws and customs of war in the narrow sense; furthermore,
it can no longer be said that violations of the laws and customs of
war are the only offenses recognized by common international law. The
force of circumstance, the grim fact of world-wide interdependence, and
the moral pressure of public opinion have resulted in international
recognition that certain crimes against humanity committed by Nazi
authority against German nationals constituted violations not alone of
statute but also of common international law. We quote:
“If a state is unhampered in its activities that affect the
interests of any other, it is due to the circumstance that the
practice of nations has not established that the welfare of the
international society is adversely affected thereby. Hence that
society has not been incited or aroused to endeavor to impose
restraints; and by its law none are imposed. The Covenant of the
League of Nations takes exact cognizance of the situation in
its reference to disputes ‘which arise out of a matter which by
international law is solely within the domestic jurisdiction’
of a party thereto. It is that law which as a product of the
acquiescence of states permits the particular activity of the
individual state to be deemed a domestic one.
“In as much as changing estimates are to be anticipated, and
as the evolution of thought in this regard appears to be
constant and is perhaps now more obvious than at any time since
the United States came into being, the circumstance that at
any given period the solution of a particular question is by
international law deemed to be solely within the control or
jurisdiction of one state, gives frail assurance that it will
always be so regarded.“[585]
“The family of nations is not unconcerned with the life and
experience of the private individual in his relationships with
the state of which he is a national. Evidence of concern has
become increasingly abundant since World War I, and is reflected
in treaties through which that conflict was brought to a close,
particularly in provisions designed to safeguard the racial,
linguistic and religious minorities inhabiting the territories
of certain states, and in the terms of part XIII of the Treaty
of Versailles, of June 28, 1919, in respect to labour, as well
as in article XXIII of that treaty embraced in the Covenant of
the League of Nations.”[586]
“The nature and extent of the latitude accorded a state in the
treatment of its own nationals has been observed elsewhere. It
has been seen that certain forms or degrees of harsh treatment
of such individuals may be deemed to attain an international
significance because of their direct and adverse effect upon
the rights and interests of the outside world. For that reason
it would be unscientific to declare at this day that tyrannical
conduct, or massacres, or religious persecutions are wholly
unrelated to the foreign relations of the territorial sovereign
which is guilty of them. If it can be shown that such acts
are immediately and necessarily injurious to the nationals of
a particular foreign state, grounds for interference by it
may be acknowledged. Again, the society of nations, acting
collectively, may not unreasonably maintain that a state
yielding to such excesses renders itself unfit to perform its
international obligations, especially in so far as they pertain
to the protection of foreign life and property within its
domain.[587] The property of interference obviously demands in
every case a convincing showing that there is in fact a causal
connection between the harsh treatment complained of, and the
outside state that essays to thwart it.
The international concern over the commission of crimes against
humanity has been greatly intensified in recent years. The fact of
such concern is not a recent phenomenon, however. England, France, and
Russia intervened to end the atrocities in the Greco-Turkish warfare in
1827.[588]
President Van Buren, through his Secretary of State, intervened with
the Sultan of Turkey in 1840 in behalf of the persecuted Jews of
Damascus and Rhodes.[589]
The French intervened and by force undertook to check religious
atrocities in Lebanon, in 1861.[590]
Various nations directed protests to the governments of Russia and
Rumania with respect to pogroms and atrocities against Jews. Similar
protests were made to the government of Turkey on behalf of the
persecuted Christian minorities. In 1872 the United States, Germany,
and five other powers protested to Rumania; and in 1915, the German
Government joined in a remonstrance to Turkey on account of similar
persecutions.[591]
In 1902 the American Secretary of State, John Hay, addressed to Rumania
a remonstrance “in the name of humanity” against Jewish persecutions,
saying, “This government cannot be a tacit party to such international
wrongs.”
Again, in connection with the Kishenef [Kishinev] and other massacres
in Russia in 1903, President Theodore Roosevelt stated:
“* * * Nevertheless there are occasional crimes committed on so
vast a scale and of such peculiar horror as to make us doubt
whether it is not our manifest duty to endeavor at least to show
our disapproval of the deed and our sympathy with those who have
suffered by it. The cases must be extreme in which such a course
is justifiable. * * * The cases in which we could interfere by
force of arms as we interfered to put a stop to intolerable
conditions in Cuba are necessarily very few. * * *”[592]
Concerning the American intervention in Cuba in 1898, President
McKinley stated:
“First. In the cause of humanity and to put an end to the
barbarities, bloodshed, starvation, and horrible miseries now
existing there, and which the parties to the conflict are either
unable or unwilling to stop or mitigate. It is no answer to say
this is all in another country, belonging to another nation,
and therefore none of our business. It is specially our duty,
for it is right at our door.”[593]
The same principle was recognized as early as 1878 by a learned German
professor of law, who wrote:
“States are allowed to interfere in the name of international
law if ‘humanity rights’ are violated to the detriment of any
single race.”[594]
Finally, we quote the words of Sir Hartley Shawcross, the British Chief
Prosecutor at the trial of Goering, et al.:
“The rights of humanitarian intervention on behalf of the
rights of man trampled upon by a state in a manner shocking
the sense of mankind has long been considered to form part of
the [recognized] law of nations. Here, too, the Charter merely
develops a preexisting principle.”[595]
We hold that crimes against humanity as defined in C. C. Law 10
must be strictly construed to exclude isolated cases of atrocity or
persecution whether committed by private individuals or by governmental
authority. As we construe it, that section provides for punishment of
crimes committed against German nationals only where there is proof
of conscious participation in systematic government organized or
approved procedures amounting to atrocities and offenses of the kind
specified in the act and committed against populations or amounting to
persecutions on political, racial, or religious grounds.
Thus, the statute is limited by construction to the type of criminal
activity which prior to 1939 was and still is a matter of international
concern. Whether or not such atrocities constitute technical violations
of laws and customs of war, they were acts of such scope and
malevolence, and they so clearly imperiled the peace of the world that
they must be deemed to have become violations of international law.
This principle was recognized although it was misapplied by the Third
Reich. Hitler expressly justified his early acts of aggression against
Czechoslovakia on the ground that the alleged persecution of racial
Germans by the government of that country was a matter of international
concern warranting intervention by Germany. Organized Czechoslovakian
persecution of racial Germans in Sudetenland was a fiction supported
by “framed” incidents, but the principle invoked by Hitler was the one
which we have recognized, namely, that government organized racial
persecutions are violations of international law.
As the prime illustration of a crime against humanity under C. C.
Law 10, which by reason of its magnitude and its international
repercussions has been recognized as a violation of common
international law, we cite “genocide” which will shortly receive our
full consideration. A resolution recently adopted by the General
Assembly of the United Nations is in part as follows:
“Genocide is a denial of the right of existence of entire
human groups, as homicide is a denial of the right to live of
individual human beings; such denial of the right of existence
shocks the conscience of mankind, results in great losses
to humanity in the form of cultural and other contributions
represented by these human groups, and is contrary to moral law
and to the spirit and aims of the United Nations.
“Many instances of such crimes of genocide have occurred when
racial, religious, political, and other groups have been
destroyed, entirely or in part.
“The punishment of the crime of genocide is a matter of
international concern.
“The General Assembly therefore--
“Affirms that genocide is a crime under international law which
the civilized world condemns, and for the commission of which
principals and accomplices--whether private individuals, public
officials, or statesmen, and whether the crime is committed
on religious, racial, political or any other grounds--are
punishable; * * *.”[596]
The General Assembly is not an international legislature, but it is
the most authoritative organ in existence for the interpretation of
world opinion. Its recognition of genocide as an international crime is
persuasive evidence of the fact. We approve and adopt its conclusions.
Whether the crime against humanity is the product of statute or of
common international law, or, as we believe, of both, we find no
injustice to persons tried for such crimes. They are chargeable with
knowledge that such acts were wrong and were punishable when committed.
The defendants contend that they should not be found guilty because
they acted within the authority and by the command of German laws and
decrees. Concerning crimes against humanity, C. C. Law 10 provides for
punishment whether or not the acts were in violation of the domestic
laws of the country where perpetrated (C. C. Law 10, art. II, par.
1(_c_)). That enactment also provides “the fact that any person
acted pursuant to the order of his Government or of a superior does not
free him from responsibility for a crime, but may be considered in
mitigation.” (C. C. Law 10, art. II, par. 4(_b_).)
The foregoing provisions constitute a sufficient, but not the
entire, answer to the contention of the defendants. The argument
that compliance with German law is a defense to the charge rests
on a misconception of the basic theory which supports our entire
proceedings. The Nuernberg Tribunals are not German courts. They are
not enforcing German law. The charges are not based on violation
by the defendants of German law. On the contrary, the jurisdiction
of this Tribunal rests on international authority. It enforces the
law as declared by the IMT Charter and C. C. Law 10, and within the
limitations on the power conferred, it enforces international law as
superior in authority to any German statute or decree. It is true,
as defendants contend, that German courts under the Third Reich
were required to follow German law (i.e., the expressed will of
Hitler) even when it was contrary to international law. But no such
limitation can be applied to this Tribunal. Here we have the paramount
substantive law, plus a Tribunal authorized and required to apply it
notwithstanding the inconsistent provisions of German local law. The
very essence of the prosecution case is that the laws, the Hitlerian
decrees and the Draconic, corrupt, and perverted Nazi judicial system
themselves constituted the substance of war crimes and crimes against
humanity and that participation in the enactment and enforcement
of them amounts to complicity in crime. We have pointed out that
governmental participation is a material element of the crime against
humanity. Only when official organs of sovereignty participated in
atrocities and persecutions did those crimes assume international
proportions. It can scarcely be said that governmental participation,
the proof of which is necessary for conviction, can also be a defense
to the charge.
Frank recognition of the following facts is essential. The
jurisdictional enactments of the Control Council, the form of the
indictment, and the judicial procedure prescribed for this Tribunal
are not governed by the familiar rules of American criminal law and
procedure. This Tribunal, although composed of American judges schooled
in the system and rules of the common law, is sitting by virtue of
international authority and can carry with it only the broad principles
of justice and fair play which underlie all civilized concepts of law
and procedure.
No defendant is specifically charged in the indictment with the
murder or abuse of any particular person. If he were, the indictment
would, no doubt, name the alleged victim. Simple murder and isolated
instances of atrocities do not constitute the gravamen of the charge.
Defendants are charged with crimes of such immensity that mere
specific instances of criminality appear insignificant by comparison.
The charge, in brief, is that of conscious participation in a nation
wide government-organized system of cruelty and injustice, in violation
of the laws of war and of humanity, and perpetrated in the name of
law by the authority of the Ministry of Justice, and through the
instrumentality of the courts. The dagger of the assassin was concealed
beneath the robe of the jurist. The record is replete with evidence
of specific criminal acts, but they are not the crimes charged in the
indictment. They constitute evidence of the intentional participation
of the defendants and serve as illustrations of the nature and effect
of the greater crimes charged in the indictment. Thus it is that the
apparent generality of the indictment was not only necessary but
proper. No indictment couched in specific terms and in the manner of
the common law could have encompassed within practicable limits the
generality of the offense with which these defendants stand charged.
The prosecution has introduced evidence concerning acts which occurred
before the outbreak of the war in 1939. Some such acts are relevant
upon the charges contained in counts two, three, and four, but as
stated by the prosecution, “None of these acts is charged as an
independent offense in this particular indictment.” We direct our
consideration to the issue of guilt or innocence after the outbreak of
the war in accordance with the specific limitations of time set forth
in counts two, three, and four of the indictment. In measuring the
conduct of the individual defendants by the standards of C. C. Law 10,
we are also to be guided by article II, paragraph 2 of that law, which
provides that a person “is deemed to have committed a crime as defined
in paragraph 1 of this article, if he was (_a_) a principal or
(_b_) was an accessory to the commission of any such crime or
ordered or abetted the same or (_c_) took a consenting part
therein or (_d_) was connected with plans or enterprises involving
its commission or (_e_) was a member of any organization or group
connected with the commission of any such crime * * *.”
Before considering the progressive degeneration of the judicial system
under Nazi rule, it should be observed that at least on paper the
Germans had developed, under the Weimar republic, a civilized and
enlightened system of jurisprudence. A few illustrations will suffice.
The power of judicial appointment and the independence of the judges
was jealously guarded by the individual states within the Reich. The
following acts were declared criminal under the provisions of the
German criminal code:
The acceptance of bribes or inducements by a judge, offered for
the purpose of influencing his decision--Section 334.
Action by an official, who, in the conduct or decision of a
case, deliberately makes himself guilty of diverting the law to
the disadvantage of one of the parties--Section 336.
The securing of a confession by duress--Section 343.
The act of an official who, in the exercise of his duty in a
criminal proceeding, knowingly causes any person to escape
penalty provided by law--Section 346.
Action by a superior officer who intentionally induces * * * his
subordinate to commit a punishable act in office, or knowingly
connives at such a punishable offense on the part of his
subordinate--Section 357.
In the Weimar constitution it was provided that “the generally accepted
rules of international law are to be considered as binding, integral
parts of the law of the German Reich.” (Art. 4.)
The Constitution also guaranteed to all Germans--
Equality before the law (Art. 109);
Citizenship, the right of travel and emigration (Arts. 110, 111, and 112);
Freedom of person (Art. 114);
Freedom of speech, assembly, and association (Arts. 118, 123, and 124);
Right of just compensation for property expropriated (Art. 153);
Right of inheritance (Art. 154);
There were, however, in the Weimar constitution the germs of the
disease from which it died. In article 48 of the constitution it was
provided:
“The Reich President may, if the public safety and order of the
German Reich are considerably disturbed or endangered, take such
measures as are necessary to restore public safety and order. If
necessary, he may intervene with the help of the armed forces.
For this purpose he may temporarily suspend, either partially or
wholly, the fundamental rights established in articles 114, 115,
117, 118, 123, 124, and 153.”
A review of the evidence will disclose that substantially every
principle of justice which was enunciated in the above-mentioned laws
and constitutional provisions was after 1933 violated by the Hitler
regime.
The first step in the march toward absolutism was of necessity the
assumption and consolidation of power. It was deemed essential that
the government be authorized to make laws by decree, unhampered by
the limitations of the Weimar republic, by the Reichstag, or by
the independent action of the several German States (Laender). To
accomplish this end on 28 February 1933 a decree was promulgated over
the signature of President von Hindenburg, Chancellor Hitler, Reich
Minister of the Interior Frick, and Reich Minister of Justice Guertner.
Briefly stated, this decree expressly suspended the provisions of the
Weimar constitution guaranteeing personal liberty, free speech, press,
assembly, association, privacy of communication, freedom of search, and
inviolability of property rights. The decree further provided that the
Reich government might, to restore public security, temporarily take
over the powers of the highest State authority. It was declared in the
preamble that the decree was passed “in virtue of article 48 (2) of
the Weimar constitution.” This is the article to which we previously
referred and which authorized the Reichspraesident to suspend the very
provisions which were in fact stricken down by the Hitler decree of 28
February. The decree was reinforced on 24 March 1933 by the act of an
intimidated Reichstag. The enactment was subtly drawn to accomplish a
double purpose. It provided that “laws decreed by the government may
deviate from the constitution”, but the act did not stop there; it also
provided that “laws of the Reich can be decreed by the government apart
from the procedure provided by the Constitution.” We quote in part--
“Article 1.--Laws of the Reich can be decreed, apart from the
procedure provided by the constitution of the Reich, also by the
government of the Reich. This also applies to the laws mentioned
in articles 85, paragraph 2, and 87 of the constitution of the
Reich.
“Article 2.--The laws decreed by the government of the Reich may
deviate from the constitution of the Reich as far as they do not
concern the institution of the Reichstag and the Reich council
as such. The rights of the Reichspraesident remain untouched.
“Article 3.--Articles 68 through 77 of the constitution of the
Reich do not apply to laws decreed by the government of the
Reich.”
Though the Enabling Act expressly repealed only a small portion of the
constitution, nevertheless that portion which was repealed cleared the
procedural way for the nullification of the rest if and when decrees
should be promulgated by “the government.” On 14 July 1933 a law was
passed declaring the Nationalsozialistische Deutsche Arbeiterpartei
(NSDAP) to be the only political party and making it a crime to
maintain or form any other political party.[597] Thus, it was made
doubly sure that any legislation thereafter enacted by the Reichstag
would be in harmony with the will of the government.
Although the process by which the Hitler regime came into power was
tainted with illegality and duress, nevertheless the power thus
seized was later consolidated and the regime thereafter did receive
the organized support of the German people and recognition by foreign
powers. On 30 January 1934, more than 10 months after the enactment
of the enabling act, and subsequent to the Reichstag election of
12 November 1933, the Reichstag passed an act by unanimous vote
providing that “the sovereign powers of the Laender are transferred
to the Reich,” and further providing that “the Reich government may
issue new constitutional laws.” The act was regularly signed by Reich
President von Hindenburg, and by Reich Chancellor Hitler, and Minister
Frick.[598] The provisions of the Enabling Act were renewed by acts of
the Reichstag on 30 January 1937 and again on 30 January 1939.
On 14 June 1942, Dr. Lammers, Reich Minister and Chief of the Reich
Chancellery, stated that they would “stress the fact that the Fuehrer
himself and the Reich cabinet should not be eliminated from the powers
of legislation.”
The conduct of the defendants must be seen in a context of preparation
for aggressive war, and must be interpreted as within the framework
of the criminal law and judicial system of the Third Reich. We shall,
therefore, next consider the legal and judicial process by which the
entire judicial system was transformed into a tool for the propagation
of the National Socialist ideology, the extermination of opposition
thereto, and the advancement of plans for aggressive war and world
conquest. Though the overt acts with which defendants are charged
occurred after September 1939, the evidence now to be considered will
make clear the conditions under which the defendants acted and will
show knowledge, intent, and motive on their part, for in the period of
preparation some of the defendants played a leading part in molding the
judicial system which they later employed.
Beginning in 1933, there developed side by side two processes by which
the Ministry of Justice and the courts were equipped for terroristic
functions in support of the Nazi regime. By the first, the power
of life and death was ever more broadly vested in the courts. By
the second, the penal laws were extended in such inconclusive and
indefinite terms as to vest in the judges the widest discretion in the
choice of law to be applied, and in the construction of the chosen law
in any given case. In 1933, by the law for the “Protection against
Violent Political Acts,” the death sentence was authorized, though not
required, as to a number of crimes “whenever milder penalty has been
prescribed hitherto.”[599]
On 24 April 1934, the definition of high treason was greatly expanded
and the death sentence was authorized, though not required, in numerous
instances. The manner in which this law was applied renders it
all-important. The following provisions, among others, illustrate the
scope of the amended law and the discretionary power of the judge:
“83. Whoever publicly incites to or solicits an undertaking of
high treason shall be punished by confinement in a penitentiary
not to exceed 10 years.
“Whoever prepares an undertaking of high treason in any other
way shall be punished in like manner.
“The death penalty, or confinement in a penitentiary for life,
or for not less than 2 years, shall be inflicted:
“(1) if the act was directed toward establishing or maintaining
an organized combination for the preparation of high treason or
* * * * * * *
“(3) if the act was directed toward influencing the masses by
making or distributing writings, recordings, or pictures, or by
the installation of wireless telegraph or telephone, or
“(4) if the act was committed abroad or was committed in such
a manner that the offender undertook to import writings,
recordings, or pictures from abroad or for the purpose of
distribution within the country.”[600]
On 20 December 1934, the government promulgated the following enactment
“Law on Treacherous Acts against State and Party and for the Protection
of Party Uniforms,” which provided in part as follows:
“Chapter 1. Article 1. (1) Unless heavier punishment is
sanctioned under the authority of a law previously established,
imprisonment not to exceed 2 years shall be imposed upon anybody
deliberately making false or grievous statements, fit to injure
the welfare or the prestige of the government of the Reich, the
National Socialist Workers’ Party, or its agencies. If such
statements are made or circulated in public, imprisonment for
not less than 3 months shall be imposed.
“Article 2. (1) Anyone who makes or circulates statements
proving a malicious, baiting or low-minded attitude toward
leading personalities of the State or the NSDAP, or toward
orders issued by them or toward institutions created by
them--fit to undermine the confidence of the people in its
political leadership--shall be punished with imprisonment.
“(2) Statements of this kind which are not made in public shall
warrant the same punishment--provided the offender figures on
his statements eventually being circulated in public.”
A decisive step was taken by the “Law to Change the Penal Code,” which
was promulgated on 28 June 1935 by Adolf Hitler as Fuehrer and Reich
Chancellor, and by Dr. Guertner as Reich Minister of Justice. Article 2
of that enactment is as follows:
“Article 2. Whoever commits an act which the law declares
as punishable or which deserves punishment according to the
fundamental idea of a penal law and the sound concept of
the people, shall be punished. If no specific penal law can
be directly applied to this act, then it shall be punished
according to the law whose underlying principle can be most
readily applied to the act.”
In substance, this edict constituted a complete repudiation of the rule
that criminal statutes should be definite and certain and vested in the
judge a wide discretion in which Party political ideology and influence
were substituted for the control of law as the guide to judicial
decision.
Section 90 (f) of the Penal Code, as enacted on 24 April 1934, provided:
“Whoever publicly, or as a German staying abroad, causes serious
danger to the reputation of the German nation by an untrue or
grossly inaccurate statement of a factual nature, shall be
punished by confinement in a penitentiary.”
The act was amended on 20 September 1944 as follows:
“In especially serious cases a German may be punished by
death.”[601]
By the act of 28 June 1935 it was provided:
“Whoever publicly profanes the German National Socialist Labor
Party, its subdivisions, symbols, standards, and banners, its
insignia or decorations, or maliciously and with premeditation
exposes them to contempt shall be punished by imprisonment.
“The offense shall be prosecuted only upon order of the Reich
Minister of Justice who shall issue such order in agreement with
the Fuehrer’s deputy.”[602]
By the law of 28 June 1935 it was provided:
“If the main proceedings show that the defendant committed an
act which deserves punishment according to the common sense of
the people but which is not declared punishable by the law, then
the court must investigate whether the underlying principle of a
penal law applies to this act and whether justice can be helped
to triumph by the proper application of this penal law. (Article
2 of the Penal Code.)”[603]
A decree of 1 December 1936 provides in part as follows:
“Section 1. (1) A German citizen who consciously and
unscrupulously, for his own gain or for other low motives,
contrary to legal provisions smuggles property abroad or leaves
property abroad and thus inflicts serious damage to German
economy is to be punished by death. His property will be
confiscated. The perpetrator is also punishable, if he commits
the misdeed abroad.”[604]
On 17 August 1938, more than a year before the invasion of Poland, a
decree was promulgated against undermining German military efficiency.
It provided in part:
“Section 5. (1) The following shall be guilty of undermining
German military efficiency, and shall be punished by death:
“1. Whoever openly solicits or incites others to evade the
fulfillment of compulsory military service in the German or an
allied armed force, or otherwise openly seeks to paralyze or
undermine the will of the German people or an allied nation to
self-assertion by bearing arms; * * *.”[605]
Under this law the death sentence was mandatory.
By the decree of 1 September 1939 the ears of the German people were
stopped lest they hear the truth:
“Section 1.--Deliberate listening to foreign stations is
prohibited. Violations are punishable by hard labor. In less
severe cases there can be a sentence of imprisonment. The radio
receivers used will be confiscated.
“Section 2.--Whoever deliberately spreads news from foreign
radio stations which is designed to undermine German military
efficiency will be punished by hard labor and in particularly
severe cases by death.”[606]
It is important to note that discretion as to penalty was vested in the
court.
On 5 September 1939, by the Decree Against Public Enemies, it was
provided that looting in liberated territory may be punished by
hanging. The following additional provisions are of importance because
of the arbitrary manner in which the instrument was construed and
applied by the courts. The provisions are as follows:
“Section 2.--Whoever commits a crime or offense against life,
limb or property, taking advantage of air raid protection
measures, is punishable by hard labor of up to 15 years or for
life, and in particularly severe cases punishable by death.
“Section 3.--Whoever commits arson or any other crime of public
danger, thereby undermining German military efficiency, will be
punished by death.
“Section 4.--Whoever commits a criminal act exploiting the
extraordinary conditions caused by war is punishable beyond the
regular punishment limits with hard labor of up to 15 years
or for life, or is punishable by death if the sound common
sense of the people requires it on account of the crime being
particularly despicable.”[607]
On 25 November 1939 the death penalty was authorized as punishment for
intentionally or negligently causing damage to war materials and the
like, if it endangers the fighting power of the German armed forces.
The death penalty was also authorized in case of anyone who “disturbs
or imperils” the ordinary function of an enterprise essential to the
defense of the Reich or to the supply of the population.[608]
On 5 December 1939 the death penalty was authorized for various crimes
of violence and it was provided that “this decree is also applicable to
crimes committed before it became valid”.
On 4 September 1941 the Criminal Code was supplemented and changed to
provide the death penalty for dangerous habitual criminals and sex
criminals “if necessitated for the protection of the national community
or by the desire for just expiation”. The decree was signed by Adolf
Hitler and by the defendant Dr. Schlegelberger in charge of the Reich
Ministry of Justice.
By the decree of 5 May 1944, the judges were substantially freed from
all restrictions as to the penalty to be invoked in criminal cases.
That decree reads as follows:
“With regard to all offenders who are guilty of causing serious
prejudice or seriously endangering the conduct of war, or the
security of the Reich, through an intentional criminal act, a
penalty may be imposed in excess of the regular penal limits
up to the statutory maximum for a given type of punishment, or
hard labor for a term or for life, or death, if the regular
statutory maximum limits are insufficient for expiation of the
act according to the sentiment of the people. The same shall
also apply to all offenses committed by negligence by which
one made himself guilty of a particularly grave prejudice or a
particularly serious danger to the conduct of war, or to the
security of the Reich.”[609]
On 20 August 1942 Hitler issued the famous decree which marks the
culmination of his systematic campaign to change the German judicial
system into an instrumentality of the NSDAP. The decree was as follows:
“A strong administration of justice is necessary for the
fulfillment of the tasks of the great German Reich. Therefore,
I commission and empower the Reich Minister of Justice to
establish a National Socialist Administration of Justice and to
take all necessary measures in accordance with my directives
and instructions made in agreement with the Reich Minister and
Chief of the Reich Chancellery and the Leader of the Party
Chancellery. He can hereby deviate from any existing law.”[610]
The statutes which we have reviewed were merely steps in the process
of increased severity of the criminal law and in the development of a
loose concept concerning the definition of crime. The latter concept
was especially evident in the statutes concerning the “sound sentiment
of the people”, crime by analogy, and undermining the military
efficiency of the nation. In place of the control of law there was
substituted the control of National Socialist ideology as a guide to
judicial action.
The Draconic laws to which we have referred were upon their face,
of general applicability. The discriminations on political, racial,
and religious grounds are to be found not in the text, but in the
application of the text.
But the Nazis were not content with statutes of a nondiscriminatory
nature even in view of the discriminatory manner in which they were
enforced. Coincidentally with the development of these laws and
decrees there arose another body of substantive law which expressly
discriminated against minority groups both within and without the
Reich, and which formed the basis for racial, religious, and political
persecution on a vast scale. On 7 April 1933, a decree by the Reich
government provided in part that--
“Article 2. Persons who, according to the Law for the
Restoration of the Professional Civil Service of 7 April
1933,[611] are of non-Aryan descent, may be refused permission
to practice law, even if there exists none of the reasons
enumerated in the Regulations for Lawyers. The same rule applies
in cases, as where a lawyer described in section 1, clause 2,
wishes to be admitted to another court. * * *”
“Article 3. Persons who are active in the Communistic sense are
excluded from the admission to the bar. Admissions already given
have to be revoked.”[612]
The act was implemented by the power of injunction. The fact that the
license to practice law had been canceled was also stated as a ground
for the cancellation of employment contracts and office leases.
On 15 September 1935, the Reichstag enacted the “Law for the Protection
of German Blood and Honor.” We quote--
“Article 1. (1) Marriages of Jews and citizens of German or
related blood are prohibited. Marriages which are concluded
nevertheless, are void even if they were concluded abroad in
order to circumvent this law.
“(2) Only the district attorney can sue for nullification of
marriage.
“Article 2. Sexual intercourse (except in marriage) between
Jews and German nationals of German or German-related blood is
forbidden.”
By other laws, as amended from time to time, non-Aryans were almost
completely expelled from public service. The number of non-Aryans in
schools and higher institutions of learning was restricted.[613] Jews
were excluded from the homestead law concerning peasantry.[614] Jewish
religious communities were regulated.[615] Jews were excluded from
certain industrial enterprises[616] and their rights as tenants were
restricted.[617]
By the act of 2 November 1942 it was provided--
“Section 1. A Jew who has his domicile abroad cannot be a
citizen of the Protectorate of Bohemia and Moravia. Domicile
abroad is established if a Jew was abroad under circumstances
which indicated that his tenure there is not of a temporary
nature.
“Section 2. A Jew loses his citizenship status in the
Protectorate if--
“(a) As of the effective date of this decree, he has an
established domicile abroad;
“(b) At a date subsequent to the effective date of this decree,
he establishes a domicile abroad.”
And by act of 25 November 1941 it was provided--
“Section 3. (1) The property of the Jew who is losing his
nationality under this amendment shall be forfeited for the
benefit of the Reich at the moment he loses his nationality. The
Reich further confiscates the property of Jews who are stateless
at the moment this amendment becomes effective, and who were
last of German nationality, if they have or take up their
regular residence abroad.
(2) The property thus forfeited shall serve the furthering of
all purposes in connection with the solution of the Jewish
question.
* * * * * * *
“Section 8. (1) It is for the chief of the Security Police and
the SD (of Reich Leader SS) to decide whether the conditions for
confiscation of property are given.
(2) The administration and liquidation of the forfeited property
is up to the Chief of the Regional Finance Office, Berlin.”[618]
The decree of 4 December 1941 “concerning the organization and criminal
jurisdiction against Poles and Jews in the Incorporated Eastern
Territories”,[619] marks perhaps the extreme limit to which the Nazi
government carried its statutory and decretal persecution of racial
and religious minorities, but it also introduces another element of
great importance. We refer to the extension of German laws to occupied
territory, to purportedly annexed territory, and to territory of the
so-called protectorates. The decree provides--
“(1) Poles and Jews in the Incorporated Eastern Territories
are to conduct themselves in conformity with the German laws
and with the regulations introduced for them by the German
authorities. They are to abstain from any conduct liable to
prejudice the sovereignty of the German Reich or the prestige of
the German people.
“(2) The death penalty shall be imposed on any Pole or Jew if he
commits an act of violence against a German on account of his
being of German blood.
“(3) A Pole or Jew shall be sentenced to death, or in less
serious cases to imprisonment, if he manifests anti-German
sentiments by malicious activities or incitement, particularly
by making anti-German utterances, or by removing or defacing
official notices of German authorities or offices, or if he,
by his conduct, lowers or prejudices the prestige or the well
being of the German Reich or the German people.
“(4) The death penalty, or in less serious cases imprisonment,
shall be imposed on any Jew or Pole:
* * * * * * *
“3. If he urges or incites to disobedience to any decree or
regulation issued by the German authorities;
“4. If he conspires to commit an act punishable under paragraphs
(2), (3) and (4), subsections 1 to 3, _or if he seriously
contemplates the carrying out of such an act_, or if he
offers himself to commit such an act, or accepts such an offer,
or if he obtains credible information of such act, or of the
intention of committing it, and fails to notify the authorities
or any person threatened thereby at a time when danger can still
be averted. [Emphasis added.]
“II. Punishment shall also be imposed on Poles or Jews if they
act contrary to German criminal law or commit any act for which
they deserve punishment in accordance with the fundamental
principles of German criminal law and in view of the interests
of the State in the Incorporated Eastern Territories.
“III. * * * (2) The death sentence shall be imposed in all cases
where it is prescribed by the law. Moreover, in these cases
where the law does not provide for the death sentence, it may
and shall be imposed if the offense points to particularly grave
for other reasons; the death sentence may also be passed upon
juvenile offenders.
* * * * * * *
“XIV. (1) The provisions contained in sections I-IV of this
decree apply also to those Poles and Jews who on 1 September
1939 were domiciled or had their residence within the territory
of the former Polish State, and who committed criminal offenses
in any part of the German Reich other than the Incorporated
Eastern Territories. * * *”
It will be observed that the title of the foregoing act refers to
“Poles and Jews in the Incorporated Eastern Territories”, but Article
XIV makes the decree also applicable to acts by Poles and Jews within
any part of the German Reich, if on 1 September 1939 they were
domiciled within the former Polish State. This section was repeatedly
employed by the courts in the prosecution of Poles.
There was promulgated a thirteenth regulation under the Reich
citizenship law which illustrates the increasing severity by means of
which the government was attempting to reach a “solution of the Jewish
problem” under the impulsion of the progressively adverse military
situation. This regulation, under date of 1 July 1943, provides:
“Article 1. (1) Criminal actions committed by Jews shall be
punished by the police.
“(2) The provision of the Polish penal laws of 4 December 1941
(RGBl. I, p. 759) shall no longer apply to Jews.
“Article 2. (1) The property of a Jew shall be confiscated by
the Reich after his death.
* * * * * * *
“Article 3. The Reich Minister of the Interior with the
concurrence of the participating higher authorities of the Reich
shall issue the legal and administrative provisions for the
administration and enforcement of this regulation. In doing so
he shall determine to what extent the provisions shall apply to
Jewish nationals of foreign countries.”
By Article 4 it was provided that in the Protectorate of Bohemia and
Moravia the regulation shall apply where German administration and
German courts have jurisdiction. (1943 RGBl. I, p. 372.)
Not only did the Nazis enact special discriminatory laws against Poles
and Jews and political minorities; they also enacted discriminatory
laws in favor of members of the Party. By the decree of 17 October
1939, it was provided that “for the area of the Greater German Reich,
special jurisdiction in penal matters will be established for--
“1. Professional members of the Reich leadership of the SS.
“2. Professional members of the staffs of those Higher SS and
Police Chiefs who possess the authority of issuing orders in
those units which have been specially designated under numbers 3
to 6 below:
“3. Members of the SS units for special purposes;
“4. Members of the SS Death Head units (including their
reinforcements);
“5. Members of the SS Junker schools;
“6. Members of police units for special purposes.”
On 12 March 1938, the German Army invaded Austria. The methods
employed “were those of an aggressor.”[620] On the next day Austria
was incorporated in the German Reich. As a result of the Munich pact
of 29 September 1938, and of threatened invasion, Czechoslovakia
was compelled to cede the Sudetenland to Germany,[621] and on 16
March 1939, Bohemia and Moravia were incorporated in the Reich as a
protectorate. On 1 September 1939, Poland was invaded and thereafter
occupied and, later on, Germany, by military force, occupied all or
portions of Denmark, Norway, Belgium, the Netherlands, Luxembourg,
Yugoslavia, Greece, and Russia. These occupations and annexations
furnished the motive for an extension into many areas outside the old
Reich of the draconic and discriminatory German laws which had been
put in force within the old Reich. By the act of 14 April 1939, it was
provided:
“Article II, section 6 (2). Persons who are not German nationals
are subject to German jurisdiction for offenses--
“(a) to which German criminal law applies,
“(b) if they are prosecuted under a private action provided the
action has been brought by a German national.
* * * * * * *
“Section 7. German jurisdiction in the Protectorate of Bohemia
and Moravia excludes jurisdiction by the courts of the
Protectorate unless otherwise provided.”
The decree of 5 September 1939 against public enemies, _supra_,
was made “applicable in the Protectorate of Bohemia and Moravia and
also for those persons who are not German citizens.”
By a decree of 25 November 1939 concerning damage to war material, it
is provided in part:
“Section 2. Whoever disturbs or imperils the ordinary function
of an enterprise essential to the defense of the Reich or to
the supply of the population in that he made a thing serving
the enterprise completely or partially unusable or put it out
of commission, shall be punished by hard labor or in especially
serious cases by death.
* * * * * * *
“Section 6. In the Protectorate of Bohemia and Moravia the
provisions of sections 1, 2, * * * and 5 of this decree are
valid also for persons who are not nationals of the German
state.”
The “decree on the extension of the application of criminal law of 6
May 1940” provided in part:
[Article I, section 4] “German criminal law will be applied
to the following crimes committed by a foreigner abroad,
independently of the laws of the place of commitment:
“1. Crimes committed while holding a German governmental office,
as a German soldier or as member of the Reich Labor Service
(Reichsarbeitsdienst) or committed against a holder of a German
office of the State or the Party, against a German soldier or a
member of the Reich Labor Service, while on duty or relating to
his duty;
“2. Actions constituting treason or high treason against
Germany; * * *.”
* * * * * * *
[Article II] “Paragraph 153. * * * A crime committed by a
foreigner abroad will be prosecuted by the public prosecutor
only if so demanded by the Reich Ministry of Justice. The
public prosecutor may abstain from the prosecution of a crime
if the same crime has already been punished abroad and if the
punishment has been carried out and the sentence to be expected
in Germany would, after deducting the time served abroad, not be
heavy.”
The act of 25 November 1941, _supra_, concerning the confiscation
of Jewish property was made applicable in the Protectorate of Bohemia
and Moravia and in the Incorporated Eastern Territories.[622] Of
greatest significance in this category was the law against Poles and
Jews already cited in another connection. The thirteenth regulation
under the Reich Citizenship Law of 1 July 1943, _supra_, was also
made applicable within the Protectorate of Bohemia and Moravia “where
German administration and German courts have jurisdiction”. It was also
made applicable to Jews “who are citizens of the Protectorate”. (Sec.
4.)
Thus far we have taken note of the substantive criminal law and its
extension to occupied and annexed territories, but these laws were not
self-executing. For the accomplishment of the ends of aggressive war,
the elimination of political opposition and the extermination of Jews
in all of Europe, it was deemed necessary to harness the Ministry of
Justice and the entire court system for the enforcement of the penal
laws in accordance with National Socialist ideology.
By decree of 21 March 1933 Special Courts were established within
the district of every court of appeal. Their jurisdiction was
rapidly extended. It included the trial of cases arising under the
decree relating to the defense against insidious attacks against the
government of the national revolution.
The decree of 21 March 1933 provided in part:
“Section 3. (1) The Special Courts shall also be competent
if a crime within their jurisdiction represents also another
punishable deed.
“(2) If another punishable act is factually connected with
a crime within the jurisdiction of the Special Courts, the
proceedings on that other punishable deed against delinquents
and participants may be referred to the Special Court by way of
connection.”
* * * * * * *
“Section 9. (1) No hearings relating to the warrant of arrest
will be held.
* * * * * * *
“Section 10. For the defendant who has not yet chosen counsel,
counsel has to be appointed at the time when the date for the
trial is fixed.
“Section 11. A preliminary court investigation will not take
place. * * *
“Section 12. * * * (4) The term of the summons (section 217 of
the Code of Criminal Procedure) is 3 days. It can be shortened
to 24 hours.
“Section 13. The Special Court can refuse any offer of evidence,
if the court has come to the conviction that the evidence is not
necessary for clearing up the case.
“Section 14. The Special Court has to pass sentence even if
the trial results in showing the act of which the defendant is
accused, as not being under the jurisdiction of the Special
Court. This does not apply if the act constitutes a crime or
offense under the jurisdiction of the Supreme Court or the
courts of appeal; in this case the Special Court has to proceed
according to section 270, paragraph 1–2 of the Code of Criminal
Procedure.
“Section 16. (1) There is no legal appeal against decisions of
the Special Courts.
“(2) Applications for a reopening of the trial are to be
decided upon by the criminal chamber of the district court. The
reopening of the trial in favor of the defendant will also take
place if there are circumstances which point to the necessity of
reexamining the case in the ordinary procedure. The stipulation
of section 363 of the Code of Criminal Procedure remains
unaffected. If the application for the reopening of the trial
is justified, the trial will be ordered to take place before
the competent ordinary court.”[623]
Special Courts were also vested with jurisdiction under the law for the
protection against violent political acts of 4 April 1933 under which
the death penalty was authorized.[624]
On 1 September 1939 the Special Courts were given jurisdiction under
the law concerning listeners to foreign radio broadcasts, and the death
sentence was authorized in certain cases.[625] On 5 September 1939
jurisdiction of the Special Court was extended to cases of looting, and
the death sentence was authorized. Jurisdiction was also extended to
cases of criminal acts exploiting the extraordinary conditions caused
by the war. That act further provided:
[Article 5] “In all trials by Special Courts the verdict must
be pronounced at once without observation of time limitations
if the perpetrator is caught redhanded or if guilt is otherwise
obvious”.[626]
On 21 February 1940 the Special Courts were expressly given
jurisdiction concerning--
[Article 13] “1. Crime and offenses committed under the law of
20 December 1934 concerning treacherous attacks against State
and Party, and concerning protection of Party uniforms;
“2. Crimes under section 239a of the Reich Criminal Code and
under the law of 22 June 1938 concerning highway robbery by
means of highway traps;
“3. Crimes under the decree [1 September 1939] concerning
extraordinary measures in regard to radio;
“4. Crimes and offenses under the war economy decree of 4
September 1939;
“5. Crimes under section 1 of the decree of 5 September 1939
against public enemies;
“6. Crimes under sections 1 and 2 of the decree of 5 December
1939 against violent criminals.”[627]
The decree further provided:
[Article 14] (1) “The Special Court also has jurisdiction over
other crimes and offenses, if the prosecution is of the opinion
that immediate sentencing by the Special Court is indicated by
the gravity or the outrageousness of the act, on account of the
thereby-aroused public sentiment or in consideration of serious
threat to public order or security.”
[Article 23] “(1) In all proceedings before a Special Court the
sentence must be passed immediately without observation of any
reprieves, if the delinquent was caught in the very act or if
his guilt is self-evident otherwise.
“(2) In all other cases the term of summons shall be 24 hours.
(Articles 217, 218 of the Reich Code of Criminal Procedure
(Reichsstrafprozessordnung)).”
[Article 25] “(1) The Special Court must hand down a decision
in a case, even if the trial shows that the act with which the
accused is charged is of such a nature that the Special Court
is not competent to deal with it. If, however, the trial shows
that the act comes under the jurisdiction of the People’s Court,
the Special Court refers the matter to the latter court, by
decision; Article 270, section 2, of the Reich Code of Criminal
Procedure is applicable accordingly.
[Article 26] “(1) There is no legal appeal against a decision of
the Special Court.”
[Article 34] “The chief public prosecutor may lodge a petition
for nullification with the Supreme Court (Reichsgericht) against
a final judgment of a judge of the criminal court of the Special
Court, within 1 year from the date of its becoming final, if the
judgment is not justified because of an erroneous application of
law on the established facts.
[Article 35] “(1) The petition for nullification must be
submitted in writing to the Supreme Court. This court will
decide thereon by judgment based on a trial. With the consent of
the chief public prosecutor it can also reach a decision without
trial.
“2. The Supreme Court may order a postponement or an
interruption of the execution. It may order arrest or internment
even prior to the decision on the petition for nullification.
The criminal senate (Strafsenat) composed of three members
including the president, will decide thereon without a trial,
with reservations as to the regulations of article 124, section
3 of the Reich Code of Criminal Procedure.”[628]
The speed with which the Special Courts acted is of significance. In
view of the congested dockets of the Special Courts, Freisler, acting
for the Minister of Justice, ordered, “a Special Court is, as a rule,
to be considered overloaded if a monthly average of more than forty new
indictments has been filed with it.”
On 4 December 1941, in the law against Poles and Jews, _supra_, it
was provided:
“IV. The State prosecutor shall prosecute a Pole or a Jew if he
considers that punishment is in the public interest.
“V. (1) Poles and Jews shall be tried by a Special Court or by
the district judge.
* * * * * * *
“VI. (1) Every sentence will be enforced without delay. The
State prosecutor may, however, appeal from the sentence of a
district judge to the court of appeal. The appeal has to be
lodged within 2 weeks.
“(2) The right to lodge complaints which are to be heard by the
court of appeal is reserved exclusively to the State prosecutor.
“VII. Poles and Jews cannot challenge a German judge on account
of alleged partiality.
“VIII. * * * (2) During the preliminary inquiry, the State
prosecutor may order the arrest and any other coercive measures
permissible.
“IX. Poles and Jews are not sworn in as witnesses in criminal
proceedings. If the unsworn deposition made by them before the
court is found false, the provisions as prescribed for perjury
and false statements shall be applied accordingly.
“X. (1) Only the State prosecutor may apply for the reopening
of a case. In a case tried before a Special Court, the decision
concerning an application for the reopening of the proceedings
rests with this court.
“(2) The right to lodge a plea of nullity rests with the State
prosecutor general. The decision on the plea rests with the
court of appeal.
“XI. Poles and Jews are not entitled to act as prosecutors
either in a principal or a subsidiary capacity.
“XII. The court and the State prosecutor shall conduct
proceedings within their discretion and according to the
principles of the German law of procedure. They may, however,
deviate from the provisions of the German law on the
organization of courts and on criminal procedure, whenever this
may appear to them advisable for the rapid and more efficient
conduct of proceedings.
* * * * * * *
“XV. Within the meaning of this decree, the term ‘Poles’
includes ‘Schutzangehoerige’ or those who are stateless.”[629]
It will be noted that the procedural rules became progressively more
summary and severe as the military situation became progressively more
critical.
A major development in the Nazification of the judicial system appears
in the establishment of the “People’s Court” which was subdivided into
a number of senates or departments. We quote:
“When the Supreme Court acquitted three of the four defendants
charged with complicity in the Reichstag fire, its jurisdiction
in cases of treason was thereafter taken away and given to a
newly established ‘People’s Court’ consisting of two judges and
five officials of the Party.”[630]
The act of 24 April 1934 which established the highly flexible
definitions of high treason also provided new judicial machinery for
enforcement.
“Article III, section 1. (1) For the trial of cases of high
treason the People’s Court is established.
“(2) Decisions of the People’s Court are made by five members
during the trial, by three members outside the trial. This
includes the president. The president and one further
member must be qualified judges. Several senates may be
established.”[631]
In section 3 (1) of article III it is provided that “the People’s Court
is competent for the investigation and decision in the first and last
instance in cases of high treason * * *”, and in other specified cases.
“Article III, section 3. (2) The People’s Court is also
competent in such cases where crimes or offenses subject to its
competence constitute at the same time another punishable act.
“(3) If another punishable act is in factual connection with a
crime or offense subject to the jurisdiction of the People’s
Court, the trial against the perpetrators and participants of
the other punishable act may be brought before the People’s
Court by way of combination of the respective cases.”
* * * * * * *
“[Article III] section 5. (2) Against the decisions of the
People’s Court no appeal is permitted.”
On 1 December 1936, the jurisdiction of the People’s Court was
extended to include violation of the law against economic sabotage.
(_supra._)
On 14 April 1939, the system was extended to Bohemia and Moravia. We
quote:
“[Section 1] (2) Furthermore, the Supreme Reich Court and the
People’s Court will carry out jurisdiction for the Protectorate
Bohemia and Moravia.”[632]
The extent of jurisdiction was defined as follows:
“Section 6. (1) German nationals are subject to German
jurisdiction in the Protectorate of Bohemia and Moravia.
“(2) Persons who are not German nationals are subject to German
jurisdiction for offenses--
“_1._ to which German criminal law applies,
“_2._ if they are prosecuted under a private action
provided the action has been brought by a German national.
* * * * * * *
“Section 7. German jurisdiction in the Protectorate of Bohemia
and Moravia excludes jurisdiction by the courts of the
Protectorate unless otherwise provided.
“Section 8. The German courts in the Protectorate of Bohemia
and Moravia administer justice in the name of the German
people.”[633]
By the law of 16 September 1939, provision was made for extraordinary
appeal against final judgments. We quote in part:
“Article 2, section 3. (1) Against legally valid sentences in
criminal proceedings the senior Reich prosecutor at the Reich
Supreme Court can file an appeal within one year after they have
been pronounced, if, because of serious misgiving, concerning
the justness of the sentence, he considers a new trial and a new
decision in the cases necessary.
“(2) On the basis of the appeal, the Special Penal Senate of the
Reich Supreme Court will try the cases a second time.
“(3) If the first sentence was passed by the People’s Court,
the appeal is to be filed by the senior Reich prosecutor at
the People’s Court, and the second trial is to be held by the
Special Senate of the People’s Court. The same applies to the
sentences of courts of appeal in cases which the senior Reich
prosecutor at the People’s Court had transferred to the public
prosecutor attached to the court of appeals, or which the
People’s Court had transferred for trial and sentencing to the
courts of appeal.
* * * * * * *
“Section 5. (1) The Special Senate of the People’s Court
consists of the president and of four members.”[634]
On 21 February 1940 the jurisdiction of the People’s Court was
redefined and again extended to cover high treason, treason, severe
cases of damaging war material, failure to report an intended crime,
crimes under section 5 (1) of the decree of 28 February 1933 concerning
protection of people and State; crimes of economic sabotage, crime of
undermining German military efficiency, and others.
On 6 May 1940 a broad decree was issued concerning the jurisdiction of
German courts for the “territory of the Greater German Reich.” That
decree provided:
“German criminal law will be applied to the crime of a German
national, no matter whether it is committed in Germany or
abroad. For a crime committed abroad, which according to the
laws of the place of commitment is not punishable, German
criminal law will not be applied, unless such action would
constitute a crime according to the sound sentiment for justice
of the German people on account of the particular conditions
prevailing at the place of commitment.”[635]
* * * * * * *
“Paragraph 4. German criminal law will be applied also in case
of crimes committed by a foreigner in Germany.
“German criminal law will be applied to crimes committed by a
foreigner abroad, if they are punishable according to the penal
code of the territory where they are committed, or if such
territory is not subject to any jurisdiction and if--
“1. the criminal has obtained German nationality after the
crime, or
“2. the crime is directed against the German people or a German
national, or
“3. the criminal is apprehended in Germany and is not
extradited, although the nature of his crime would permit an
extradition.
“German criminal law will be applied to the following crimes
committed by a foreigner abroad, independently of the laws of
the place of commitment:
“1. Crimes committed while holding a German governmental office,
as a German soldier or as a member of the Reich Labor Service
(Reichsarbeitsdienst) or committed against a holder of a German
office or the State or the Party, against a German soldier or a
member of the Reich Labor Service, while on duty or relating to
his duty;
“2. Actions constituting treason or high treason against
Germany,” and in other special cases.
Certain additional provisions intimately affecting the rights of
accused persons deserve special mention.
“Section 10. For the defendant, who has not yet chosen counsel,
counsel has to be appointed at the time when the date for the
trial is fixed.
“Section 11. A preliminary court investigation will not take
place. * * *”[636]
By a decree of the Reich Minister of Justice, Dr. Thierack, on 13
December 1944, it was provided:
“Article 2, paragraph 12. Limited admittance of defense counsel.
“(1) In any one criminal case, several lawyers or professional
representatives may not act side by side as chosen counsel for
one defendant.
“(2) The rules about obligatory representation by defense
counsel do not apply. The presiding judge appoints a defense
counsel for the whole or part of the proceedings if the
difficulty of the material or legal problems require assistance
by a defense counsel, or if the defendant, in due consideration
of his personality, is unable to defend himself personally. * *
*”[637]
On 16 February 1934 it was provided that:
“Article 2. The president of the Reich has the prerogatives for
_nulle prosequi_ and clemency (formerly held by the States).
“Amnesties can be promulgated only by Reich law.”[638]
This centralization of the clemency powers marks a radical departure
from the system which prevailed prior to 1933 and was the means by
which the will of Hitler became a dominating force in the Ministry of
Justice and in the courts. Other provisions are as follows:
“Even if the judgment has been contested only by the defendant
or his legal representative, or by the prosecution in his favor,
it can be changed against the interests of the defendant.[639]
“In penal matters for which the People’s Court, the superior
district court, or the court of assizes are competent,
preexamination is conducted upon application of the prosecution,
if, after due consideration, the prosecution thinks it necessary.
“In other penal matters as well, preexamination takes place on
application of the prosecution. The prosecution should make
such an application only if unusual circumstances make it
necessary to have a judge conduct such preexamination.”[640]
An illuminating comment on the law is made by a German text writer.
“A criminal case on which verdict has been passed must not
again become the subject of another criminal proceeding. This
exclusive effect pertains to the subject of the case both as
regards the crime and the criminal. * * * According to the
findings of the German supreme court and to the prevailing
theory in accord with these findings, the effect of _ne bis
in idem_ includes the history of the case submitted to
the court for verdict. * * * This theory, however, leads to
unbearable consequences. In order to avoid these unbearable
consequences some courts, recently, have permitted the breach of
the principle against double jeopardy in exceptional cases where
jeopardy of a second trial is necessitated by the sound sense of
justice. * * *”[641]
On 21 March 1942 Adolf Hitler promulgated a decree regarding the
simplification of the administration of justice. We quote the following
excerpts:
“In penal cases, * * * the formal opening of the main proceeding
must be eliminated. * * * (Sec. I.)
“Indictments and judicial decisions must be more tersely written
by restricting them to the absolutely necessary. (Sec. II.)
“The cooperation of professional associate judges in judicial
decisions must be restricted. (Sec. III.)
“I commission the Reich Minister of Justice, in agreement
with the Reich Minister and Chief of the Reich Chancellery
and with the Chief of the Party Chancellery, to issue the
legal provisions necessary for the execution of this decree.
I empower the Reich Minister of Justice to make the necessary
administrative provisions and to decide any doubtful questions
by administrative means. (Sec. VI.)”
On 13 August 1942 a decree was issued by the defendant
Schlegelberger as Reich Minister of Justice in charge of the
Ministry--
“Article 4. * * * Decisions by the criminal court, the Special
Court, and the criminal senate of the circuit courts of appeal
may be made solely by the president or his regular deputy, if
he considers the cooperation of his associates dispensable in
view of the simplicity of the nature and the legal status of the
case, and if the public prosecutor agrees.
“Article 5. Main proceeding without public prosecutor--In the
proceeding before the district judge, the public prosecutor may
renounce his participation in the main proceeding.
“Article 7 (2). The validity of an objection is decided on by
the president of the deciding court. The admissibility of an
appeal is decided on by the president of the court of appeal
(Berufungsstrafkammer); he is also authorized to bring about a
decision of the court. These decisions are not subject to any
proof, and are incontestable.
“Article 7 (3). Further objections will not be admitted.”
We have already quoted at length from the decree of 4 December 1941
concerning the organization of criminal jurisdiction against Poles
and Jews in the Incorporated Eastern Territories. That decree also
contained provisions for the establishment of martial law from which we
quote:
“Article XIII (1). Subject to the consent of the Reich Minister
of the Interior and the Reich Minister of Justice, the Reich
governor may, until further notice, enforce martial law in the
Incorporated Eastern Territories, either in the whole area under
his jurisdiction or in parts thereof, upon Poles and Jews guilty
of grave excesses against the Germans or of other offenses which
seriously endanger the German work of reconstruction.
“(2) The courts established under martial law impose the death
sentence. They may, however, dispense with punishment and refer
the case to the Secret State Police (Gestapo).”
A final step in the development of summary criminal procedure was taken
on 15 February 1945 by a decree of the Reich Minister of Justice, Dr.
Thierack. The decree provided:
“II. 1. The court martial consists of a judge of a criminal
court as president and of a member of the political leader
corps, or of a leader of another structural division of the
NSDAP and an officer of the Wehrmacht, the Waffen SS, or the
police, as associate judges. * * *
“III. 1. The courts martial have jurisdiction for all kinds of
crimes endangering the German fighting power or undermining the
people’s military efficiency. * * *
“IV. 1. The sentence of the court martial will be either death,
acquittal, or commitment to the regular court. The consent of
the Reich defense commissar is required. He gives orders for the
time, place, and kind of execution. * * *”[642]
Pursuant to a decree of the Fuehrer of 16 March 1939, the defendant
Schlegelberger, as Reich Minister of Justice in charge, together with
the Minister of the Interior and the Chief of the Armed Forces, Keitel,
issued a decree which reads in part as follows:
“Section 1. In case of direct attack by a non-German citizen
against the SS or the German Police or against any of their
members, the Reich Leader of the SS and the Chief of the German
Police in the Reich Ministry of the Interior may establish
the jurisdiction of a combined SS court and police court, by
declaring that special interests of parts of the SS or of the
Police require that judgment be given by an SS and police court.
“This declaration shall be sent to the Reich Protector of
Bohemia and Moravia. The SS and police court, which shall have
jurisdiction in individual cases, shall be specified by the
Reich Leader of the SS and Chief of the German Police in the
Reich Ministry of the Interior.
“Section 2. If the offense directly injures the interests of the
armed forces, the Reich Leader of the SS and chief of the German
Police in the Reich Ministry of the Interior, and the chief of
the Supreme Command of the Armed Forces shall reach an agreement
as to whether the case shall be prosecuted by an SS and police
court or by a military court.[643]
“Article II. Exemption of the Reich court from being bound
to precedent sentence: The Reich Court as the highest German
tribunal must consider it its duty to effect an interpretation
of the law which takes into account the change of ideology and
of legal concepts which the new State has brought about. In
order to be able to accomplish this task without having to show
consideration for the jurisdiction of the past brought about by
other ideology and other legal concepts, it is ruled as follows:
“When a decision is made about a legal question, the Reich Court
can deviate from a decision laid down before this law went into
effect.”[644]
_THE LAW IN ACTION_
We pass now from the foregoing incomplete summary of Nazi legislation
to a consideration of the law in action, and of the influence of the
“Fuehrer principle” as it affected the officials of the Ministry of
Justice, prosecutors, and judges. Two basic principles controlled
conduct within the Ministry of Justice. The first concerned the
absolute power of Hitler in person or by delegated authority to enact,
enforce, and adjudicate law. The second concerned the incontestability
of such law. Both principles were expounded by the learned Professor
Jahrreiss, a witness for all of the defendants. Concerning the first
principle, Dr. Jahrreiss said:
“If now in the European meaning one asks about legal
restrictions, and first of all one asks about restrictions
of the German law, one will have to say that restrictions
under German law did not exist for Hitler. He was _legibus
solutus_ in the same meaning in which Louis XIV claimed that
for himself in France. Anybody who said something different
expresses a wish that does not describe the actual legal facts.”
Concerning the second principle, Jahrreiss supported the opinion of
Gerhard Anschuetz, “crown jurist of the Weimar Republic”, who holds
that if German laws were enacted by regular procedure, judicial
authorities were without power to challenge them on constitutional or
ethical grounds. Under the Nazi system, and even prior thereto, German
judges were also bound to apply German law even when in violation of
the principles of international law. As stated by Professor Jahrreiss:
“To express it differently, whether the law has been passed
by the State in such a way that it was inconsistent with
international law on purpose or not, that could not play
any part at all; and that was the legal state of affairs,
regrettable as it may be.”
This, however, is not to deny the superior authority of international
law. Again we quote a statement of extraordinary candor by Professor
Jahrreiss:
“On the other hand, certainly there were legal restrictions
for Hitler under international law. * * * He was bound by
international law. Therefore, he could commit acts violating
international law. Therefore, he could issue orders violating
international law to the Germans.”
The conclusion to be drawn from the evidence presented by the
defendants themselves is clear: In German legal theory Hitler’s law was
a shield to those who acted under it, but before a tribunal authorized
to enforce international law, Hitler’s decrees were a protection
neither to the Fuehrer himself nor to his subordinates, if in violation
of the law of the community of nations.
In German legal theory, Hitler was not only the supreme legislator,
he was also the supreme judge. On 26 April 1942 Hitler addressed the
Reichstag in part as follows:
“I do expect one thing: That the nation gives me the right to
intervene immediately and to take action myself wherever a
person has failed to render unqualified obedience. * * *”
“I therefore ask the German Reichstag to confirm expressly that
I have the legal right to keep everybody to his duty and to
cashier or remove from office or position without regard for
his person, or his established rights, whoever, in my view and
according to my considered opinion, has failed to do his duty.”
“* * * From now on, I shall intervene in these cases and remove
from office those judges who evidently do not understand the
demand of the hour.”
On the same day the Greater German Reichstag resolved in part as
follows:
“* * * the Fuehrer must have all the rights postulated by him
which serve to further or achieve victory. Therefore--without
being bound by existing legal regulations--in his capacity as
leader of the nation, Supreme Commander of the Armed Forces,
governmental chief and supreme executive chief, as supreme
justice[645], and leader of the Party--the Fuehrer must be in a
position to force with all means at his disposal every German,
if necessary, whether he be common soldier or officer, low or
high official or judge, leading or subordinate official of
the Party, worker or employee, to fulfill his duties. In case
of violation of these duties, the Fuehrer is entitled after
conscientious examination, regardless of so-called well-deserved
rights, to mete out due punishment, and to remove the offender
from his post, rank and position, without introducing prescribed
procedures.”
The assumption by Hitler of supreme governmental power in all
departments did not represent a new development based on the emergency
of war. The declaration of the Reichstag was only an echo of Hitler’s
declaration of 13 July 1934. After the mass murders of that date (the
Roehm purge) which were committed by Hitler’s express orders, he said:
“Whenever someone reproaches me with not having used the
ordinary court for their sentencing, I can only say: ‘In this
hour I am responsible for the fate of the German nation and
hence the supreme law lord[645] of the German people.’”
The conception of Hitler as the supreme judge was supported by the
defendant Rothenberger. We quote (_NG-075, Pros. Ex. 27_):
“However, something entirely different has occurred; with the
Fuehrer a man has risen within the German people who awakens the
oldest, long forgotten times. Here is a man who in his position
represents the ideal of the judge in its perfect sense, and
the German people elected him for their judge--first of all,
of course, as ‘judge’ over their fate in general, but also as
‘supreme magistrate[645] and judge.’”
In the same document the defendant Rothenberger expounded the National
Socialist theory of judicial independence. He said:
“Upon the fact that the judge can use his own discretion is
founded the magic of the word ‘judge.’”
He asserted that “every private and Party official must abstain from
all interference or influence upon the judgment,” but this statement
appears to be mere window-dressing, for after his assertion that a
judge “must judge like the Fuehrer”, he said:
“In order to guarantee this, a direct liaison officer without
any intermediate agency must be established between the Fuehrer
and the German judge, that is, also in the form of a judge, the
supreme judge in Germany, the ‘Judge of the Fuehrer’. He is to
convey to the German judge the will of the Fuehrer by authentic
explanation of the laws and regulations. At the same time he
must upon the request of the judge give binding information in
current trials concerning fundamental political, economic, or
legal problems which cannot be surveyed by the individual judge.”
Thus, it becomes clear that the Nazi theory of the judicial
independence was based upon the supreme independence of the Fuehrer,
which was to be channelized through the proposed liaison officer from
Fuehrer to judge.
On 13 November 1934, Goering, in an address before the Academy of
German Law, expressed similar sentiments concerning the position of
Hitler.
“Gentlemen, for the German nation this matter was settled by the
words of the judge in this hour, the Fuehrer, who stated that in
this hour of uttermost danger he alone, the Fuehrer elected by
the people, was the supreme and only judge of the German nation.”
The defendant Schlegelberger, on 10 March 1936 said:
“It should be emphasized, however, that in the sphere of the
law, also, it is the Fuehrer and he alone who sets the pace of
development.”
To the same effect we quote Reich Minister of Justice Dr. Thierack,
who, on 5 January 1943 said:
“So also with us the conviction has grown in these 10 years in
which the Fuehrer has led the German people that the Fuehrer is
the chief justice and the supreme judge of the German people.”
On 17 February 1943 the defendant Under Secretary Dr. Rothenberger
summed up his legal philosophy with the words (_NG-415, Pros. Ex.
26_):
“The judge is on principle bound by the law. The laws are the
orders of the Fuehrer.”
As will be seen, the foregoing pronouncement by the leaders in the
field of Nazi jurisprudence were not mere idle theories. Hitler did, in
fact, exercise the right assumed by him to act as supreme judge, and
in that capacity in many instances he controlled the decision of the
individual criminal cases.
The evidence demonstrates that Hitler and his top-ranking associates
were by no means content with the issuance of general directives for
the guidance of the judicial process. They tenaciously insisted upon
the right to interfere in individual criminal sentences. In discussing
the right to refuse confirmation of sentences imposed by criminal
courts, Martin Bormann, as Chief of the Party Chancellery, wrote to Dr.
Lammers, Chief of the Reich Chancellery, as follows (_NG-102, Pros.
Ex. 75_):
“When the Fuehrer has expressly requested the right of
direct interference over all formal legal provisions, this
is emphasizing the very importance of the modification of a
judicial sentence.”
The Ministry of Justice was acutely conscious of the interference
by Hitler in the administration of criminal law. On 10 March 1941
Schlegelberger wrote to Reich Minister Lammers in part as follows
(_NG-152, Pros. Ex. 63_):
“It has come to my knowledge that just recently a number of
sentences passed have roused the strong disapproval of the
Fuehrer. I do not know exactly which sentences are concerned,
but I have ascertained for myself that now and then sentences
are pronounced, which are quite untenable. In such cases I
shall act with the utmost energy and decision. It is, however,
of vital importance for justice and its standing in the Reich,
that the head of the Ministry of Justice should know to which
sentences the Fuehrer objects, * * *.”
On the same date Schlegelberger wrote to Hitler in part as follows
(_NG-152, Pros. Ex. 63_):
“In the course of the verdicts pronounced daily, there are
still judgments which do not entirely comply with the necessary
requirements. In such cases I will take the necessary steps. * *
*
“Apart from this it is _desirable to educate the judges more
and more to a correct way of thinking, conscious of the national
destiny_. For this purpose it would be invaluable, if you, my
Fuehrer, could let me know if a verdict does not meet with your
approval. The judges are responsible to you, my Fuehrer; they
are conscious of this responsibility, and are firmly resolved
to discharge their duties accordingly. * * * Heil, my Fuehrer!”
[Emphasis added.]
Hitler not only complied with the foregoing request, but proceeded
beyond it. Upon his personal orders persons who had been sentenced to
prison terms were turned over to the Gestapo for execution. We quote
briefly from the testimony of Dr. Hans Gramm, who for many years was
personal Referent to the defendant Schlegelberger, and who testified in
his behalf.
“Q. Do you know anything about transfers of condemned persons to
the police, or to the Gestapo?
“A. I know that it frequently occurred that Hitler gave orders
to the police to call for people who had been sentenced to
prison terms. To be sure, it was an order from Hitler directed
to the police to the effect that the police had to take such and
such a man into their custody. These orders had rather short
limits. As a rule, there was only a time limit of 24 hours
before execution by the police, after which the police had to
report that it had been executed. These transfers, as far as
I can remember, took place only during the war.” (_Tr. pp.
4717–4718._)
This procedure was well-known in the Ministry of Justice. Gramm was
informed by the defendant Schlegelberger that the previous Reich
Minister of Justice, Dr. Guertner, had protested to Dr. Lammers against
this procedure and had received the reply--
“That the courts could not stand up to the special requirements
of the war, and that therefore these transfers would have to
continue.”
The only net result of the protest was that “from that time on in every
individual case when such a transfer had been ordered, the Ministry of
Justice was informed about that.”
The witness, Dr. Lammers, former Chief of the Reich Chancellery, whose
hostility toward the prosecution and evasiveness were obvious, conceded
that the practice was continued under Schlegelberger, though Lammers
stated that Schlegelberger never agreed to it.
By reference to case histories we will illustrate three different
methods by which Hitler, through the Ministry of Justice, imposed
his will in disregard of judicial proceedings. One, Schlitt, had
been sentenced to a prison term, as a result of which Schlegelberger
received a telephone call from Hitler protesting the sentence. In
response the defendant Schlegelberger on 24 March 1942 wrote in part as
follows (_NG-152, Pros. Ex. 63_):
“I entirely agree with your demand, my Fuehrer, for very severe
punishment for crime, and I assure you that the judges honestly
wish to comply with your demand. Constant instructions in order
to strengthen them in this intention and the increase of threats
of legal punishment have resulted in a considerable decrease of
the number of sentences to which objections have been made from
this point of view, out of a total annual number of more than
300,000.
“I shall continue to try to reduce this number still more, and
if necessary, I shall not shrink from personal measures, as
before.
“In the criminal case against the building technician, Ewald
Schlitt, from Wilhelmshaven, I have applied through the public
prosecutor for an extraordinary plea for nullification against
the sentence, at the special senate of the Reich Court. I will
inform you of the verdict of the special senate immediately it
has been given.”
On 6 May 1942, Schlegelberger informed Hitler (_NG-102, Pros. Ex.
75_) that the 10-year sentence against Schlitt was “quashed within
10 days;” and that “Schlitt was sentenced to death and executed at
once.”
In the case against Anton Scharff, the sentence of 10 years’ penal
servitude had been imposed. Thereupon, on 25 May 1941, Bormann wrote to
Dr. Lammers (_NG-611, Pros. Ex. 64_): “The Fuehrer believes this
sentence entirely incomprehensible * * *. The Fuehrer requests that you
inform State Secretary Schlegelberger again of his point of view.”
On 28 June 1941, defendant Schlegelberger wrote Dr. Lammers (_NG-611,
Pros. Ex. 64_): “I am very obliged to the Fuehrer for informing me,
on my request, of his conception of atonements of black-out crimes in
reference to the sentence of the Munich Special Court against Anton
Scharff.
“I shall reinstruct the presidents of the courts of appeal and
the chief public prosecutors of this conception of the Fuehrer
as soon as possible.”
As a final illustration of a general practice, we refer to the case of
the Jew Luftgas, who had been sentenced to 2½ years imprisonment for
hoarding eggs. On 25 October 1941, Lammers notified Schlegelberger:
“The Fuehrer wishes that Luftgas be sentenced to death.” On 29 October
1941, Schlegelberger wrote Lammers: “* * * I have handed over to the
Gestapo for the purpose of execution the Jew Markus Luftgas who had
been sentenced to 2½ years of imprisonment * * *”.
Although Hitler’s personal intervention in criminal cases was a
matter of common occurrence, his chief control over the judiciary was
exercised by the delegation of his power to the Reich Minister of
Justice, who on 20 August 1942 was expressly authorized “to deviate
from any existing law.”
Among those of the Ministry of Justice who joined in the constant
pressure upon the judges in favor of more severe or more discriminatory
administration of justice, we find Thierack, Schlegelberger, Klemm,
Rothenberger, and Joel. Neither the threat of removal nor the sporadic
control of criminal justice in individual cases was sufficient to
satisfy the requirements of the Ministry of Justice. As stated by the
defendant Rothaug, “only during 1942, after Thierack took over the
Ministry, the ‘guidance’ of justice was begun. * * * There was an
attempt to guide the administration of justice uniformly from above.”
In September 1942 Thierack commenced the systematic distribution to the
German judges of Richterbriefe. The first letter to the judges under
date of 1 October 1942 called their attention to the fact that Hitler
was the supreme judge and that “leadership and judgeship have related
characters.” We quote (_NG-298, Pros. Ex. 81_):
“A corps of judges like this will not slavishly use the crutches
of law. It will not anxiously search for support by the law,
but, with a satisfaction in its responsibility, it will find
within the limits of the law the decision which is the most
satisfactory for the life of the community.”
In the Judges’ Letters Thierack discussed particular decisions which
had been made in the various courts and which failed to conform to
National Socialist ideology. As an illustration of the type of guidance
which was furnished by the Ministry of Justice to the German judiciary,
we cite a few instances from the Richterbriefe.
A letter to the judges of 1 October 1942 discusses a case decided in a
district court on 24 November 1941. A special coffee ration had been
distributed to the population of a certain town. A number of Jews
applied for the coffee ration, but did not receive it, being “excluded
from the distribution _per se_”. The food authorities imposed
fines upon the Jews for making the unsuccessful application. In 500
cases the Jews appealed to the court and the judge informed the food
authorities that the imposition of a fine could not be upheld for
legal reasons, one of which was the statute of limitations. In deciding
favorably to the Jews, the court wrote a lengthy opinion stating that
the interpretation on the part of the food authorities was absolutely
incompatible with the established facts. We quote, without comment, the
discussion of the Reich Minister of Justice concerning the manner in
which the case was decided (_NG-298, Pros. Ex. 81_):
“The ruling of the district court, in form and content matter,
borders on embarrassing a German administrative authority to
the advantage of Jewry. The judge should have asked himself
the question: What is the reaction of the Jew to this 20-page
long ruling, which certifies that he and the 500 other Jews
are right and that he won over a German authority, and does
not devote one word to the reaction of our own people to this
insolent and arrogant conduct of the Jews. Even if the judge was
convinced that the food office had arrived at a wrong judgment
of the legal position, and if he could not make up his mind
to wait with his decision until the question, if necessary,
was clarified by the higher authorities, he should have chosen
a form for his ruling which under any circumstances avoided
harming the prestige of the food office and thus putting the Jew
expressly in the right toward it.”
One of the Richterbriefe also discusses the case of a Jew who, after
the “Aryanization of his firm,” attempted to get funds transferred
to Holland without a permit. He also attempted to conceal some of
his assets. Concerning this case the judges of Germany received the
following “guidance” (_NG-298, Pros. Ex. 81_):
“The court applies the same criteria for the award of punishment
as it would if it were dealing with a German fellow citizen as
defendant. This cannot be sanctioned. The Jew is the enemy of
the German people, who has plotted, stirred up, and prolonged
this war. In doing so, he has brought unspeakable misery upon
our people.
“Not only is he of a different race, but he is also of inferior
race. Justice, which must not measure different matters by the
same standard, demands that just this racial aspect must be
considered in the award of punishment.”
Space does not permit the citation of other instances of this form of
perverted political guidance of the courts. Notwithstanding solemn
protestations on the part of the minister that the independence of
the judge was not to be affected, the evidence satisfies us beyond a
reasonable doubt that the purpose of the judicial guidance was sinister
and was known to be such by the Ministry of Justice and by the judges
who received the directions. If the letters [the Judges’ Letters]
had been written in good faith with the honest purpose of aiding
independent judges in the performance of their duties, there would
have been no occasion for the carefully guarded secrecy with which
the letters were distributed. A letter of 17 November 1942 instructs
the judges that the letters are to be “carefully locked up to avoid
that they get into the hands of unauthorized persons. The receivers
are subject to official secrecy as far as the contents of the judges’
letters are concerned.”
In a letter of 17 November 1942 Thierack instructs the judges that
“in cases where judges and prosecutors are suspected of political
unreliability they are to be excluded in a suitable manner from the
list of subscribers to the Judges’ Letters.”
Not being content with regimenting the judges and chief prosecutors and
making them subservient to the National Socialist administration of
justice, Dr. Thierack next took up the regimentation of the lawyers.
On 11 March 1943 he wrote to the various judges and prosecutors
announcing the proposed distribution of confidential lawyers’ letters.
An examination of those letters convinces the Tribunal that the actual,
though undeclared purpose, was to suggest to defense counsel that they
avoid any criticism of National Socialist justice and refrain from too
much ardor in the defense of persons charged with political crimes.
Not only did Thierack exert direct influence upon the judges, but he
employed as his representative the most sinister, brutal, and bloody
judge in the entire German judicial system. In a letter to Freisler,
president of the People’s Court, Thierack said that the judgment of
the People’s Court must be “in harmony with the leadership of the
State”. He urges Freisler to have every charge submitted to him and
to recognize the cases in which it was necessary “in confidential and
convincing discussion with the judge competent for the verdict to
emphasize what is necessary from the point of view of the State.” He
continues:
“As a general rule, the judge of the People’s Court must
get used to regarding the ideas and intentions of the State
leadership as the primary factor and the individual fate which
depends on him as only a secondary factor. * * *”
He continues:
“I will try to illustrate this with individual cases.
“1. If a Jew--and a leading Jew at that--is charged with high
treason--even if he is only an accomplice therein, he has behind
him the hate and the will of Jewry to exterminate the German
people. As a rule this will therefore be _high treason_ and
must be punished by the death penalty.”
He concludes with the following admonition to Freisler, which appears
to have been wholly unnecessary:
“In case you should ever be in doubt as to which line to follow
or which political necessities to take into consideration,
please address yourself to me in all confidence.”
It will be recalled that on 26 April 1942 Hitler stated that he would
remove from office “those judges who evidently do not understand the
demand of the hour.” The effect of this pronouncement upon such judges
as still retained ideals of judicial independence can scarcely be
overestimated. The defendant Rothenberger stated it was “absolutely
crushing.”
In a private letter to his brother, the defendant Oeschey expressed his
view of the situation created by Hitler’s interference in the following
words:
“After the well known Fuehrer speech things developed in a
frightful manner. I was never a supporter of the stubborn
doctrine of the independence of the judge which granted the
judge within the frame of the law the position of a public
servant, only subordinated to his conscience but otherwise
‘neutral’, that is, politically completely independent. * *
* Now it is an absurdity to tell the judge in an individual
case which is subject to his decision how he has to decide.
Such a system would make the judge superfluous; such things
have now come to pass. Naturally it was not done in an open
manner; but even the most camouflaged form could not hide the
fact that a directive was to be given. Thereby the office of
judge is naturally abolished and the proceedings in a trial
become a farce. I will not discuss who bears the guilt of such a
development.”
The threat alone of the removal was sufficient to impair the
independence of the judges, but the evidence discloses that measures
were actually carried out for the removal or transfer of judges
who proved unsatisfactory from the Party standpoint. On 29 March
1941 Schlegelberger received a letter from the chief of the Reich
Chancellery protesting against the sentence which had been imposed
against the Polish farmhand Wojcieck. The court at Lueneburg had
recognized some extenuating circumstances in the case. Schlegelberger
was advised as follows:
“The Fuehrer urges you immediately to take the steps necessary
to preclude repetition in other courts of the view of the
Lueneburg court.”
On 1 April 1941 Schlegelberger wrote to the Chief of the Reich
Chancellery informing him that “by means of a circular with the order
for immediate transmittal to all judges and public prosecutors, I
brought the mistake in the viewpoint as it is shown in this passage
of the court’s statement to the knowledge of the penal justice without
delay. I consider it impossible that such an incident will occur again.”
Schlegelberger ordered the responsible president of the appellate court
and the judges concerned in the case to report to him on the next day,
and on the third day of April 1941 he advised as follows:
“* * * I beg to inform you that the presiding judge of the
criminal division which passed the sentence in the case of the
Polish farmhand Wolay Wojciesk, is no longer chairman, and the
two associate judges have been replaced by other associate
judges.”
There is substantial evidence to the effect that the witness
Ostermeier, who was a judge on the Special Court in Nuernberg, was
removed from his office because of his lenient attitude in criminal
cases.
In a letter addressed to the Chief of the Reich Chancellery and to the
head of the Party Chancellery on 20 October 1942, Thierack discussed
the necessity of the removal or the transfer of officials in the
Ministry of Justice who are “not suited for the new tasks” and adds
that it may become necessary “in some particular cases to transfer or
retire such judges as cannot be kept in their present positions.” He
therefore asked approval “so that in urgent cases judges and officials
of the Reich administration of justice may be transferred by me to
other positions * * * or may be retired by me.”
On 3 March 1942 Bormann gave his approval in general terms to
Thierack’s proposal. A like approval was given by Dr. Lammers on 13
November 1942.
In connection with the discussion of removals, we find a list of
proposed staff reductions in which seventy-five judges and prosecutors
are named. Among the reasons stated for reduction we find the
following: persons of Jewish ancestry, 4; persons having a Jewish wife,
4; lack of cooperation with Party, 4; religious grounds, 1; not a Party
member, 20; pro-Jewish or pro-Pole, 4.
The conception of the national leadership of the Reich concerning the
function of the law under the influence of the Party ideology must also
be briefly noted.
On 22 July 1942 Reich Minister Dr. Goebbels addressed the members
of the People’s Court. The speech was reported in part as follows
(_NG-417, Pros. Ex. 23_):
“While making his decisions the judge had to proceed less from
the law than from the basic idea that the offender was to be
eliminated from the community. During a war it was not so much a
matter of whether a judgment was just or unjust but only whether
the decision was expedient. The State must ward off its internal
foes in the most efficient way and wipe them out entirely. The
idea that the judge must be convinced of the defendant’s guilt
must be discarded completely. The purpose of the administration
of the law was not in the first place retaliation or even
improvement but maintenance of the State. One must not proceed
from the law but from the resolution that the man must be wiped
out.”
On 14 September 1935 Hans Frank, Reichsleiter of the Nazi Party and
president of the Academy of German law, said (_NG-777, Pros. Ex.
19_):
“By means of the law of 18 June 1935, the liberalist foundation
of the old penal code ‘no penalty without a law’ was definitely
abandoned and replaced by the postulate, ‘no crime without
punishment’, which corresponds to our conception of the law.
“In the future, criminal behavior, even if it does not fall
under formal penal precepts, will receive the deserved
punishment if such behavior is considered punishable according
to the healthy feelings of the people.”
This is the Hans Frank (since hanged) who at his trial testified
concerning the racial persecution in which he had participated. He said:
“A thousand years will pass and this guilt of Germany will still
not be erased.”
On 10 March 1936 the defendant Schlegelberger said (_NG-538, Pros.
Ex. 21_):
“In the sphere of criminal law the road to a creation of justice
in harmony with the moral concepts of the new Reich has been
opened up by a new wording of section 2 of the criminal code,
whereby a person is also to be punished even if his deed is not
punishable according to the law, but if he deserves punishment
in accordance with the basic concepts of criminal law and the
sound instincts of the people. This new definition became
necessary because of the rigidity of the norm in force hitherto.”
Reich Minister Thierack on 5 January 1943 said (_NG-275, Pros Ex.
25_):
“The inner law of the guardian of justice is national socialism;
the written law is only to be an aid to the interpretation of
National Socialist ideas.”
In the words of the defendant Rothenberger the project was “to
‘organize’ Europe anew and to create a new world philosophy.” Again, he
said (_NG-075, Pros. Ex. 27_):
“* * * this reaction of ‘antagonism toward law’ is justified
because the _present moment_ absolutely demands a rigid
restriction of the power of law. He who is striding gigantically
toward a new world order cannot move in the limitation of an
orderly administration of justice.”
Strangely enough we find the Nazi judicial system condemned by a judge
who in practice was its most fanatical adherent. The defendant Rothaug
testified as follows:
“As of every other civil servant, of the judge there was
demanded not only obedience but also loyalty and an inner
connection with the doctrine of the State. The change-over
of the judiciary to that different intellectual level was
attempted _via_ the political factor of the administration
of justice, and that was when things came to grief; and it was
then that the notorious ‘back door’ which I have mentioned, took
effect.”
After discussing the extraordinary legal remedies by which final
judgments in criminal cases were set aside by means of the
nullification plea and the extraordinary objection, Rothaug said:
“As far as that went no objections could be made. What was more
dangerous was the influence by means of Judges’ Letters and the
guidance of jurisdiction.”
To the domination by Hitler and the political “guidance” of the
Ministry of Justice must be added the direct pressure of Party
functionaries and police officials. The record is replete with
testimony of specific instances of interference in the administration
of justice by officials of Party and police. But for the demonstration
of the viciousness and universality of the practice it is only
necessary to cite the words of the defendants themselves.
The defendant Rothenberger describes the manner in which the
“administration of justice was burdened by the Party and by the SS”,
and referred in his testimony to the “thousand little Hitlers who every
day jeopardized the independence of the individual judge.”
The defendant Schlegelberger spoke with more caution:
“If in a trial, testimonials of political conduct were submitted
for the characterization of the accused, it has to be left to
the judge’s dexterity to avoid conflict with the department
which furnishes the testimonial of political conduct.”
The defendant Lautz testified concerning attempted interference
with his duties by the SS. We have already quoted the opinion of the
defendant Oeschey as expressed in a letter to his brother.
A reliable witness, Dr. Hanns Anschuetz, testified:
“After the issuance of the German Civil Service Code, strong
pressure was brought to bear upon all officials, including
judges, to join the NSDAP, or not to reject requests to join;
otherwise there existed the danger that they might be retired
or dismissed. But once a Party member, a judge was under Party
discipline and Party jurisdiction, which dominated his entire
life as official and as private person.”
The witness Wilhelm Oehlicker, formerly a justice official and at
present judge in Hamburg, testified, that, “the longer the war
proceeded, in my opinion the more and more they (Party officials) tried
to interfere with the courts and influence the courts directly.”
The final degradation of the judiciary is disclosed in a secret
communication by Ministerial Director Letz of the Reich Ministry of
Justice to Dr. Vollmer, also a ministerial director in the department.
Not only were the judges “guided” and at times coerced; they were spied
upon. We quote:
“Moreover, I know from documents, which the minister produces
from time to time out of his private files, that the Security
Service takes up special problems of the administration of
justice with thoroughness and makes summarized situation reports
about them. As far as I am informed, a member of the Security
Service is attached to each judicial authority. This member is
obliged to give information under the seal of secrecy. This
procedure is secret and the person who gives the information is
not named. In this way we get, so to say, anonymous reports.
Reasons given for this procedure are of State political
interest. As long as the direct interests of the State security
are concerned, nothing can be said against it, especially in
wartime.”
In view of the conclusive proof of the sinister influences which were
in constant interplay between Hitler, his ministers, the Ministry
of Justice, the Party, the Gestapo, and the courts, we see no merit
in the suggestion that Nazi judges are entitled to the benefit of
the Anglo-American doctrine of judicial immunity. The doctrine that
judges are not personally liable for their judicial actions is based
on the concept of an independent judiciary administering impartial
justice. Furthermore, it has never prevented the prosecution of a judge
for malfeasance in office. If the evidence cited _supra_ does
not demonstrate the utter destruction of judicial independence and
impartiality, then we “never writ nor no man ever proved.” The function
of the Nazi courts was judicial only in a limited sense. They more
closely resembled administrative tribunals acting under directives from
above in a quasi-judicial manner.
In operation the Nazi system forced the judges into one of two
categories. In the first we find the judges who still retained ideals
of judicial independence and who administered justice with a measure
of impartiality and moderation. Judgments which they rendered were
set aside by the employment of the nullity plea and the extraordinary
objection. The defendants they sentenced were frequently transferred
to the Gestapo on completion of prison terms and were then shot or
sent to concentration camps. The judges themselves were threatened and
criticized and sometimes removed from office. In the other category
were the judges who with fanatical zeal enforced the will of the Party
with such severity that they experienced no difficulties and little
interference from party officials. To this group the defendants Rothaug
and Oeschey belonged.
We turn to a consideration and classification of the evidence. The
prosecution has introduced captured documents in great number which
establish the Draconic character of the Nazi criminal laws and prove
that the death penalty was imposed by courts in thousands of cases.
Cases in which the extreme penalty was imposed may in large measure be
classified in the following groups:
1. Cases against habitual criminals.
2. Cases of looting in the devastated areas of Germany; committed after
air raids and under cover of black-out.
3. Crimes against the war economy--rationing, hoarding, and the like.
4. Crimes amounting to an undermining of the defensive strength of the
nation; defeatist remarks, criticisms of Hitler, and the like.
5. Crimes of treason and high treason.
6. Crimes of various types committed by Poles, Jews, and other
foreigners.
7. Crimes committed under the Nacht und Nebel program, and similar
procedures.
Consideration will next be given to the first four groups as above set
forth. The Tribunal is keenly aware of the danger of incorporating in
the judgment as law its own moral convictions or even those of the
Anglo-American legal world. This we will not do. We may and do condemn
the Draconic laws and express abhorrence at the limitations imposed by
the Nazi regime upon freedom of speech and action, but the question
still remains unanswered: “Do those Draconic laws or the decisions
rendered under them constitute war crimes or crimes against humanity?”
Concerning the punishment of habitual criminals, we think the answer
is clear. In many civilized states statutory provisions require
the courts to impose sentences of life imprisonment upon proof of
conviction of three or more felonies. We are unable to say in one
breath that life imprisonment for habitual criminals is a salutary
and reasonable punishment in America in peace times, but that the
imposition of the death penalty was a crime against humanity in Germany
when the nation was in the throes of war. The same considerations apply
largely in the case of looting. Every nation recognizes the absolute
necessity of more stringent enforcement of the criminal law in times
of great emergency. Anyone who has seen the utter devastation of the
great cities of Germany must realize that the safety of the civilian
population demanded that the werewolves who roamed the streets of the
burning cities, robbing the dead, and plundering the ruined homes
should be severely punished. The same considerations apply, though in a
lesser degree, to prosecutions to hoarders and violators of war economy
decrees.
Questions of far greater difficulty are involved when we consider the
cases involving punishment for undermining military efficiency. The
limitations on freedom of speech which were imposed in the enforcement
of these laws are revolting to our sense of justice. A court would have
no hesitation in condemning them under any free constitution, including
that of the Weimar republic, if the limitations were applied in time
of peace; but even under the protection of the Constitution of the
United States a citizen is not wholly free to attack the Government or
to interfere with its military aims in time of war. In the face of a
real and present danger, freedom of speech may be somewhat restricted
even in America. Can we then say that in the throes of total war and in
the presence of impending disaster those officials who enforced these
savage laws in a last desperate effort to stave off defeat were guilty
of crimes against humanity?
It is persuasively urged that the fact that Germany was waging a
criminal war of aggression colors all of these acts with the dye of
criminality. To those who planned the war of aggression and who were
charged with and were guilty of the crime against the peace as defined
in the IMT Charter, this argument is conclusive, but these defendants
are not charged with crimes against the peace nor has it been proven
here that they knew that the war which they were supporting on the
home front was based upon a criminal conspiracy or was _per se_
a violation of international law. The lying propaganda of Hitler and
Goebbels concealed even from many public officials the criminal plans
of the inner circle of aggressors. If we should adopt the view that
by reason of the fact that the war was a criminal war of aggression
every act which would have been legal in a defensive war was illegal
in this one, we would be forced to the conclusion that every soldier
who marched under orders into occupied territory or who fought in the
homeland was a criminal and a murderer. The rules of land warfare
upon which the prosecution has relied would not be the measure of
conduct and the pronouncement of guilt in any case would become a mere
formality. In the opinion of the Tribunal the territory occupied and
annexed by Germany after September 1939 never became a part of Germany,
but for that conclusion we need not rest upon the doctrine that the
invasion was a crime against the peace. Such purported annexations in
the course of hostilities while armies are in the field are provisional
only, and dependent upon the final successful outcome of the war. If
the war succeeds, no one questions the validity of the annexation.
If it fails, the attempt to annex becomes abortive. In view of our
clear duty to move with caution in the recently charted field of
international affairs, we conclude that the domestic laws and judgments
in Germany which limited free speech in the emergency of war cannot be
condemned as crimes against humanity merely by invoking the doctrine
of aggressive war. All of the laws to which we have referred could be
and were applied in a discriminatory manner and in the case of many,
the Ministry of Justice and the courts enforced them by arbitrary and
brutal means, shocking to the conscience of mankind and punishable
here. We merely hold that under the particular facts of this case we
cannot convict any defendant merely because of the fact, without more,
that laws of the first four types were passed or enforced.
A different situation is presented when we consider the cases which
fall within types 5, 6, and 7.
_TREASON AND HIGH TREASON_
We have expressed the opinion that the purported annexation of
territory in the East which occurred in the course of war and while
opposing armies were still in the field was invalid and that in point
of law such territory never became a part of the Reich, but merely
remained in German military control under belligerent occupancy. On 27
October 1939 the Polish Ambassador at Washington informed the Secretary
of State that the German Reich had decreed the annexation of part of
the territory of the Polish republic. In acknowledging the receipt
of this information, Secretary Hull stated that he had “taken note
of the Polish government’s declaration that it considers this act as
illegal and therefore null and void.”[646] The foregoing fact alone
demonstrates that the Polish Government was still in existence and was
recognized by the Government of the United States. Sir Arnold D. McNair
expressed a principle which we believe to be incontestable in the
following words:
“A purported incorporation of occupied territory by a military
occupant into his own kingdom during the war is illegal and
ought not to receive any recognition. * * *”[647]
We recognize that in territory under belligerent occupation the
military authorities of the occupant may, under the laws and customs
of war, punish local residents who engage in fifth column activities
hostile to the occupant. It must be conceded that the right to punish
such activities depends upon the specific acts charged and not upon the
name by which these acts are described. It must also be conceded that
Poles who voluntarily entered the Alt [old] Reich could, under the laws
of war, be punished for the violation of nondiscriminatory German penal
statutes.
These considerations, however, do not justify the action of the Reich
prosecutors who in numerous cases charged Poles with high treason
under the following circumstances: Poles were charged with attempting
to escape from the Reich. The indictments in these cases alleged that
the defendants were guilty of attempting, by violence or threat of
violence, to detach from the Reich territory belonging to the Reich,
contrary to the express provisions of section 80 of the law of 24 April
1934. The territory which defendants were charged with attempting
to detach from the Reich consisted of portions of Poland, which the
Reich had illegally attempted to annex. If the theory of the German
prosecutors in these cases were carried to its logical conclusion it
would mean that every Polish soldier from the occupied territories
fighting for the restoration to Poland of territory belonging to it
would be guilty of high treason against the Reich and on capture, could
be shot. The theory of the Reich prosecutors carries with it its own
refutation.
Prosecution in these cases represented an unwarrantable extension of
the concept of high treason, which constituted in our opinion a war
crime and a crime against humanity. The wrong done in such prosecutions
was not merely in misnaming the offense of attempting to escape from
the Reich; the wrong was in falsely naming the act high treason and
thereby invoking the death penalty for a minor offense.
_MEMBERSHIP IN CRIMINAL ORGANIZATIONS_
C. C. Law 10, article II, paragraph 1(_d_), provides:
“1. Each of the following acts is recognized as a crime:
* * * * * * *
“(_d_) Membership in categories of a criminal group or
organization declared criminal by the International Military
Tribunal.”
Article 9 of the IMT Charter provides:
“At the trial of any individual member of any group or
organization the Tribunal may declare (in connection with any
act of which the individual may be convicted) that the group or
organization of which the individual was a member was a criminal
organization.”
Article 10 of the IMT Charter is as follows:
“In cases where a group or organization is declared criminal
by the Tribunal, the competent national authority of any
Signatory shall have the right to bring individuals to trial
for membership therein before national, military or occupation
courts. In any such case the criminal nature of the group or
organization is considered proved and shall not be questioned.”
Concerning the effect of the last quoted section, we quote from the
opinion of the IMT in the case of United States, et al., _vs._
Goering, et al., as follows:
“Article 10 of the Charter makes clear that the declaration of
criminality against an accused organization is final and cannot
be challenged in any subsequent criminal proceeding against a
member of the organization.”[648]
We quote further from the opinion in that case:
“In effect, therefore, a member of an organization which the
Tribunal has declared to be criminal may be subsequently
convicted of the crime of membership and be punished for that
crime by death. This is not to assume that international or
military courts which will try these individuals will not
exercise appropriate standards of justice. This is a far
reaching and novel procedure. Its application, unless properly
safeguarded, may produce great injustice.”
* * * * *
“A criminal organization is analogous to a criminal conspiracy
in that the essence of both is cooperation for criminal
purposes. There must be a group bound together and organized for
a common purpose. The group must be formed or used in connection
with the commission of crimes denounced by the Charter. Since
the declaration with respect to the organizations and groups
will, as has been pointed out, fix the criminality of its
members, that definition should exclude persons who had no
knowledge of the criminal purposes or acts of the organization
and those who were drafted by the state for membership, unless
they were personally implicated in the commission of acts
declared criminal by article 6 of the Charter as members of the
organization. Membership alone is not enough to come within the
scope of these declarations.”[649]
The Tribunal in that case recommended uniformity of treatment so far as
practicable in the administration of this law, recognizing, however,
that discretion in sentencing is vested in the courts. Certain groups
of the Leadership Corps, the SS, the Gestapo, the SD, were declared to
be criminal organizations by the judgment of the first International
Military Tribunal. The test to be applied in determining the guilt of
individual members of a criminal organization is repeatedly stated in
the opinion of the First International Military Tribunal. The test is
as follows: Those members of an organization which has been declared
criminal “who became or remained members of the organization with
knowledge that it was being used for the commission of acts declared
criminal by article 6 of the Charter, or who were personally implicated
as members of the organization in the commission of such crimes” are
declared punishable.
Certain categories of the Leadership Corps are defined in the First
International Military Tribunal judgment as criminal organizations. We
quote:
“The Gauleiter, the Kreisleiter, and the Ortsgruppenleiter
participated, to one degree or another, in these criminal
programs. The Reichsleitung as the staff organization of the
Party is also responsible for these criminal programs as well as
the heads of the various staff organizations of the Gauleiter
and Kreisleiter. The decision of the Tribunal on these staff
organizations includes only the Amtsleiter who were heads of
offices on the staffs of the Reichsleitung, Gauleitung, and
Kreisleitung. With respect to other staff officers and Party
organizations attached to the Leadership Corps other than
the Amtsleiter referred to above, the Tribunal will follow
the suggestion of the prosecution in excluding them from the
declaration.”[650]
In like manner certain categories of the SD were defined as criminal
organizations. Again, we quote:
“In dealing with the SD the Tribunal includes Aemter III, VI,
and VII of the RSHA, and all other members of the SD, including
all local representatives and agents, honorary or otherwise,
whether they were technically members of the SS or not, but not
including honorary informers who were not members of the SS and
members of the Abwehr who were transferred to the SD.”[651]
In like manner certain categories of the SS were declared to constitute
criminal organizations:
“In dealing with the SS the Tribunal includes all persons who
had been officially accepted as members of the SS including the
members of the Allgemeine SS, members of the Waffen SS, members
of the SS Totenkopf-Verbaende, and the members of any of the
different police forces who were members of the SS. The Tribunal
does not include the so-called SS riding units.”[652]
C. C. Law 10 provides that we are bound by the findings as to the
criminal nature of these groups or organizations. However, it should be
added that the criminality of these groups and organizations is also
established by the evidence which has been received in the pending
case. Certain of the defendants are charged in the indictment with
membership in the following groups or organizations which have been
declared and are now found to be criminal, to wit: The Leadership
Corps, the SD, and the SS. In passing upon these charges against the
respective defendants, the Tribunal will apply the tests of criminality
set forth above.
_CRIMES UNDER THE NIGHT AND FOG DECREE_
[_NACHT UND NEBEL ERLASS_]
Paragraph 13 of count two of the indictment charges in substance that
the Ministry of Justice participated with the OKW and the Gestapo in
the execution of the Hitler decree of Night and Fog whereby civilians
of occupied countries accused of alleged crimes in resistance
activities against German occupying forces were spirited away for
secret trial by special courts of the Ministry of Justice within the
Reich; that the victim’s whereabouts, trial, and subsequent disposition
were kept completely secret, thus serving the dual purpose of
terrorizing the victim’s relatives and associates and barring recourse
to evidence, witnesses, or counsel for defense. If the accused was
acquitted, or if convicted, after serving his sentence, he was handed
over to the Gestapo for “protective custody” for the duration of the
war. These proceedings resulted in the torture, ill treatment, and
murder of thousands of persons. These crimes and offenses are alleged
to be war crimes in violation of certain established international
rules and customs of warfare and as recognized in C. C. Law 10.
Paragraph 25 of count three of the indictment incorporates by reference
paragraph 13 of count two of the indictment and alleges that the same
acts, offenses, and crimes are crimes against humanity as defined by C.
C. Law 10. The same facts were introduced to prove both the war crimes
and crimes against humanity and the evidence will be so considered by
us.
Paragraph 13 of count two of the indictment which particularly
describes the Hitler NN plan or scheme, charges the defendants
Altstoetter, von Ammon, Engert, Joel, Klemm, Mettgenberg, and
Schlegelberger with “special responsibility for and participation in
these crimes”, which are alleged to be war crimes.
Paragraph 8 of count two of the indictment charges all of the
defendants with having committed the war crimes set forth in paragraphs
9 to 18 inclusive of count two, in that they were principals in,
accessories to, ordered, abetted, took a consenting part in, and were
connected with plans and enterprises involving the commission of
atrocities and offenses against persons, including but not limited to
murder, illegal imprisonment, brutalities, atrocities, transportation
of civilians, and other inhumane acts which were set out in paragraphs
9 to 18 inclusive of the indictment as war crimes against the civilian
population in occupied territories.
Paragraph 20 of count three of the indictment charges all of the
defendants with having committed the same acts as contained in
paragraph 8 of count two as being crimes against humanity. Paragraphs
21 to 30 inclusive of count three refer to and adopt the facts alleged
in paragraphs 9 to 18 inclusive of count two, and thus all defendants
are charged with having committed crimes against humanity upon the same
allegations of facts as are contained in paragraphs 9 to 18 inclusive
of count two.
In the foregoing manner all of the defendants are charged with having
participated in the execution or carrying out of the Hitler NN decree
and procedure either as war crimes or as crimes against humanity, and
all defendants are charged with having committed numerous other acts
which constitute war crimes and crimes against humanity against the
civilian population of occupied countries during the war period between
1 September 1939 and April 1945.
The Night and Fog decree arose as the plan or scheme of Hitler to
combat so-called resistance movements in occupied territories. Its
enforcement brought about a systematic rule of violence, brutality,
outrage, and terror against the civilian populations of territories
overrun and occupied by the Nazi armed forces. The IMT treated the
crimes committed under the Night and Fog decree as war crimes and found
as follows:
“The territories occupied by Germany were administered in
violation of the laws of war. The evidence is quite overwhelming
of a systematic rule of violence, brutality, and terror. On 7
December 1941 Hitler issued the directive since known as the
‘Nacht und Nebel Erlass’ (Night and Fog decree), under which
persons who committed offenses against the Reich or the German
forces in occupied territories, except where the death sentence
was certain, were to be taken secretly to Germany and handed
over to the SIPO and SD for trial and punishment in Germany.
This decree was signed by the defendant Keitel. After these
civilians arrived in Germany, no word of them was permitted to
reach the country from which they came, or their relatives; even
in cases when they died awaiting trial the families were not
informed, the purpose being to create anxiety in the minds of
the families of the arrested person. Hitler’s purpose in issuing
this decree was stated by the defendant Keitel in a covering
letter, dated 12 December 1941, to be as follows:
“‘Efficient and enduring intimidation can only be achieved
either by capital punishment or by measures by which the
relatives of the criminal and the population do not know the
fate of the criminal. This aim is achieved when the criminal is
transferred to Germany.’
* * * * * * *
“The brutal suppression of all opposition to the German
occupation was not confined to severe measures against suspected
members of resistance movements themselves, but was also
extended to their families.”[653]
The Tribunal also found that:
“One of the most notorious means of terrorizing the people
in occupied territories was the use of the concentration
camps.”[654]
Reference is here made to the detailed description by the IMT judgment
of the manner of operation of concentration camps and to the appalling
cruelties and horrors found to have been committed therein. Such
concentration camps were used extensively for the NN prisoners in the
execution of the Night and Fog decree as will be later shown.
The IMT further found that the manner of arrest and imprisonment of
Night and Fog prisoners before they were transferred to Germany was
illegal, as follows:
“The local units of the Security Police and SD continued their
work in the occupied territories after they had ceased to be
an area of operations. The Security Police and SD engaged in
widespread arrests of the civilian population of these occupied
countries, imprisoned many of them under inhumane conditions,
and subjected them to brutal third degree methods, and sent many
of them to concentration camps. Local units of the Security
Police and SD were also involved in the shooting of hostages,
the imprisonment of relatives, the execution of persons charged
as terrorists and saboteurs without a trial, and the enforcement
of the Nacht und Nebel decree under which persons charged with
a type of offenses believed to endanger the security of the
occupying forces were either executed within a week or secretly
removed to Germany without being permitted to communicate with
their family and friends.”[655]
The foregoing quotations from the IMT judgment will suffice to show the
illegality and cruelty of the entire NN plan or scheme. The transfer of
NN prisoners to Germany and the enforcement of the plan or scheme did
not cleanse it of its iniquity or render it legal in any respect.
The evidence herein adduced sustains the foregoing findings and
conclusions of the IMT. In fact the same documents, or copies thereof,
referred to and quoted from in the IMT judgment were introduced
in evidence in this case. In addition, a large number of captured
documents and oral testimony were introduced showing the origin and
purpose of the Night and Fog plan or scheme, and showing without
dispute that certain of the defendants with full knowledge of the
illegality of the plan or scheme under international law of war and
with full knowledge of the intended terrorism, cruelty, and other
inhumane principles of the plan or scheme became either a principal, or
aided and abetted, or took a consenting part in, or were connected with
the execution of the illegal, cruel, and inhumane plan or scheme.
Hitler’s decree was signed by Keitel on 7 December 1941 and was
enclosed in Keitel’s covering letter of 12 December 1941, which was
referred to and quoted from in the IMT judgment. The Hitler decree
states that since the opening of the Russian campaign Communist and
anti-German elements have increased their assaults against the Reich
and the occupation power in the occupied territories and that the most
severe measures should be directed against these malefactors “to
intimidate them”. The decree further declares in substance (_1733-PS,
Pros. Ex. 303_):
“1. Criminal acts committed by non-German civilians directed
against the Reich or occupation forces endangering their safety
or striking power should require the application of the death
penalty in principle.
“2. Such criminal acts will be tried in occupied territories
only when it appears probable that the death sentence will be
passed and carried out without delay. Otherwise the offenders
will be carried to Germany.
“3. Offenders taken to Germany are subject to court martial
procedures there only in case that particular military concern
should require it. German and foreign agencies will declare upon
inquiries of such offenders that the state of the proceedings
would not allow further information.
“4. Commanders in chief in occupied territories and the
justiciaries within their jurisdiction will be held personally
responsible for the execution of this decree.
“5. The chief of the OKW will decide in which of the occupied
territories this decree will be applied. He is authorized to
furnish explanations and further information and to issue
directives for its execution.”
In addition to the Hitler decree there were also enclosed in Keitel’s
letter of 12 December 1941 the “First Decree” of directives concerning
the prosecution of crimes against the Reich or occupation power in
occupied territories under the Hitler decree. This first Decree was
signed by Keitel and was marked “Secret.” It contains seven sections
relating to the crimes intended to be prosecuted under the Hitler
decree and the manner and place of trials and execution of sentences.
Section I of the first decree declares that the directive will be as a
rule applicable in cases of: (_671-PS, Pros. Ex. 304._)
1. Assault with intent to kill.
2. Espionage.
3. Sabotage.
4. Communist activity.
5. Crimes likely to disturb the peace.
6. Favoritism toward the enemy, the following means: Smuggling of men
and women; the attempt to enlist in an enemy army; and the support of
members of the enemy army (parachutists, etc.).
7. Illegal possession of arms.
Section II of the secret decree declares that the culprits are not to
be tried in occupied territories unless it is probable that a death
sentence will be pronounced, and it must be possible to carry out the
execution of the death sentence at once; in general, a week after the
capture of the culprit. It further states:
“Special political scruples against the immediate execution of
the death sentence should not exist.”
Section III of the first directive declares that the judge in agreement
with the intelligence office of the Wehrmacht decides whether the
condition for a trial in occupied territories exists.
Section IV declares that the culprits who are to be taken to Germany
will be subjected there to military court proceedings if the OKW or the
superior commanding officer declares decisions according to section III
(above) that special military reasons require the military proceedings.
In such instances the culprits are to be designated “prisoners of the
Wehrmacht” to the Secret Field Police. If such declaration is not made,
the order that the culprit is to be taken to Germany will be treated as
transferring according to the intentions of the decree.
Section V declares that “the judicial proceedings in Germany will be
carried out under strictest exclusion of the public because of the
danger for the State’s security. Foreign witnesses may be questioned at
the main proceedings only with the permission of the Wehrmacht.”
Section VI of the first decree declares that former decrees concerning
the situation in Norway and concerning Communists and rebel movements
in the occupied territories are superseded by these directives and
executive order.
Section VII of the secret decree declares that the directives will
become effective 3 weeks after they are signed and that the directives
will be applied in all occupied territories with the exception of
Denmark until further notice. The orders issued for the newly occupied
Eastern territories are not affected by these directives. The order was
expressly made effective in Norway, Holland, France, Bohemia, Moravia,
and the Ukraine occupied areas. In actual operation, Belgium and all
other of the western occupied countries came within the decree.
The Hitler decree was sent to the Reich Minister of Justice on 12
December 1941 endorsed for the attention of defendant Schlegelberger.
On the same day (12 December 1941) Keitel informed other ministries of
Hitler’s decree, directing that all such information proceedings were
to be conducted in absolute secrecy.
On 16 December 1941, officials of the Ministry of Justice (Schaefer and
Grau, associates of defendant Mettgenberg in Department III) drafted
a proposed order for the execution of the Hitler NN decree by the
Ministry of Justice, the courts, and the Reich prosecution. This was
forwarded to General Lehmann, head of the OKW legal department for his
approval.
Other correspondence took place between the Reich Ministry of Justice
and the OKW relating to the final draft of the Night and Fog order.
This correspondence occurred between 16 December and 25 December 1941.
It related to the reservation of the competency of the Ministry of
Justice or Under Secretary of State Freisler in the execution of the
Hitler decree. These reservations were incorporated in a circular
decree dated 6 February 1942, supplementing NN regulations as follows
(_NG-232, Pros. Ex. 308_):
“Circular Decree:
“On the execution of the executive decree of 6 February 1942,
relating to the directives issued by the Fuehrer and Supreme
Commander of the Wehrmacht for the prosecution of criminal
acts against the Reich or the occupation power in the occupied
territories.
“For the further execution of the directives mentioned before I
ordain:
“1. Competent for the handling of the cases transferred to
ordinary courts including their eventual retrial are: the
Special Court and the chief prosecutor in Cologne as far as they
originate from the occupied Belgian and Netherlands territories,
the Special Court and the chief prosecutor in Dortmund; as far
as they originate from the occupied Norwegian territories, the
Special Court and the chief prosecutor in Kiel; for the rest,
the Special Court and the attorney general at the county court,
Berlin. In special cases I reserve for myself the decision of
competence for each individual case.
“2. The chief prosecutor will inform me of the indictment, the
intended plea, and the sentence as well as of his intention to
refrain from any accusation in a specific case.
“3. The choice of a defense counsel will require the agreement
of the presiding judge who makes his decision only with the
consent of the prosecutor. The agreement may be withdrawn.
“4. Warrants of arrests will be suspended only with my
consent. If such is intended, the prosecutor will report to me
beforehand. He will furthermore ask for my decision before using
foreign evidence or before agreeing to its being used by the
tribunal.
“5. Inquiries concerning the accused person or the pending trial
from other sources than those Wehrmacht and police agencies
dealing with the case will be answered by merely stating that
* * * is arrested and the state of the trial does not allow
further information.”
This supplementary decree was signed for Dr. Freisler by chief
secretary of the ministerial office.
The letter of the same Dr. Freisler to Minister of Justice Thierack
dated 14 October 1942, shows that in accordance with his promise
to Thierack he had conducted preliminary proceedings through Reich
departmental officials and with Lehmann, Chief of the Legal Division
of the OKW, concerning the matter of the Ministry of Justice taking
over the Night and Fog proceedings under the Hitler decree. Such top
secret negotiations had lasted for several months. The last conference
was held on 7 February 1942. On that day the final decree was
drafted, approved, and was “the decree of 7 February 1942, signed by
Schlegelberger” as Acting Minister of Justice. Defendant Schlegelberger
testified that he signed the decree. He thereby brought about the
enforcement by the Ministry of Justice, the courts, and the prosecutors
of a systematic rule of violence, brutality, outrage, and terror
against the civilian population of territories overrun by the Nazi
armed forces resulting in the ill-treatment, death, or imprisonment of
thousands of civilians of occupied territories.
The taking over of the enforcement of the Hitler NN decree was based
solely upon the afore-mentioned secret agreement, plan, or scheme. All
of the defendants who entered into the plan or scheme, or who took part
in enforcing or carrying it out knew that its enforcement violated
international law of war. They also knew, which was evident from the
language of the decree, that it was a hard, cruel, and inhumane plan
or scheme and was intended to serve as a terroristic measure in aid of
the military operations and the waging of war by the Nazi regime. We
will at this point let some of those who originated the plan or scheme
or who took part in its execution relate its history and its illegal,
cruel, and inhumane purposes.
Rudolf Lehmann, who was Chief of the Legal Division of the OKW,
testified concerning the Nacht und Nebel Decree of 7 December 1941. He
stated that even before the beginning of the war and more particularly
after the beginning of the war, there was a controversy between Hitler
and his generals on the one part and between Hitler and the Gestapo on
the other part as to the part which should be performed by the military
department of justice. He testified:
“Hitler held it against the administration of justice by the
armed forces and within the armed forces that they did not
sufficiently support his manner of conducting the war.”
He further testified that Hitler had--
“Used the expression that the military justice indeed sabotaged
his conduct of war. These reproaches first emanated from the
Polish campaign. There the military justice--the justice
administration of the armed forces--was reprimanded that it had
not acted sufficiently severe against members of bands. The next
reprimands of that kind occurred during the French campaign.”
Lehmann further testified that Keitel had passed on to him a directive
which he had received from Hitler in October of 1941. This directive
was quite long in which Hitler referred to the resistance movement in
France, which he stated was a tremendous danger for the German troops
and that new means would have to be found to combat this danger.
There was therefore a discussion of the resistance movement. The army
was opposed to the plan because it involved them in violations of
international law of war. It was then suggested in the discussion that
the Gestapo should be given that power. But even in this Hitler’s ideas
were overruled. It was at this point that he, Lehmann, suggested that
the matters--
“Should continue to be dealt with by judges, and since the
aversion of Hitler against the armed forces justice was known,
it could be assumed that he would still prefer civilian courts
than us.”
Lehmann further testified that Hitler--
“Attributed a higher political reliability to civilian justice
later because later he took all political criminal cases away
from us and gave it to civilian justice.”
At this point Lehmann discussed the matter with Under Secretary
Freisler because Freisler dealt with the criminal cases in the
Ministry. He was told by Freisler that the matter would have to be
taken up with Schlegelberger. Lehmann further testified:
“I discussed with him the proposition that the cases which
the military courts in France would not keep should be taken
over and dealt with by and tried by the civilian justice
administration. I can only say that Freisler told me that first
he had to think it over; and secondly, he had to discuss it with
Under Secretary Schlegelberger who was at that time in charge of
the Ministry. * * * Freisler told me that he had to ask the man
who was in charge of the Ministry, the acting minister * * * for
permission and authority on behalf of the Ministry of Justice
to try the Nacht und Nebel cases. * * * As I was informed about
the routine in the Ministry, Schlegelberger, who was then acting
Minister of Justice, was in my opinion the only person who could
consent to take over these Nacht und Nebel cases by the Ministry
of Justice.”
Lehmann further testified:
“I have stated that * * * the plan had to be rejected for
manifold reasons--for reasons of international law, for reasons
of justice, and policy of justice, and primarily, because I
said the administration of justice should never do anything
secretly. I put to him, ‘What kind of suspicion would have to
arise against our administration of justice if these people,
inhabitants of other countries, brought to Germany, would
disappear without a trace’? In my mind, and in the minds of all
others concerned, everything revolted against this particular
part of the plan, which seemed to us to have much more grave
consequence than the question of who should, in the end, deal
with it. That was also the opinion of the leading jurists of the
armed forces * * *.”
Defendant Mettgenberg held the position of Ministerialdirigent in
Departments III and IV of the Reich Ministry of Justice. In Department
III, for penal legislation, he dealt with international law,
formulating secret, general, and circular directives. He handled Night
and Fog cases and knew the purpose and procedure used in such cases,
and that the decree was based upon the Fuehrer’s order of 7 December
1941 to the OKW. In his affidavit Mettgenberg states (_NG-696, Pros.
Ex. 336_):
“The ‘Night and Fog’ section within my subdivision, was headed
by Ministerial Counsellor von Ammon. This matter was added to
my subdivision because of its international character. I know,
of course, that a Fuehrer decree to the OKW was the basis for
this ‘Night and Fog’ procedure and that an agreement had been
reached between the OKW and the Gestapo, that the OKW had also
established relations with the Minister of Justice and that the
handling of this matter was regulated accordingly.
“I was not present at the original discussion with Freisler,
in which the ‘Night and Fog’ matters were first discussed on
the basis of the Fuehrer decree. If I had been present at this
discussion, and if I had had an occasion to present my opinion,
I would, at any rate, have spoken against the taking over of
the ‘Night and Fog’ matters by the justice administration.
It went against my training as a public servant to have the
administration of justice misused for things which were bound to
be incompatible with its basic principles.
“Whenever Mr. von Ammon had doubts concerning the handling of
individual cases, we talked these questions over together,
and when they had major importance, referred them to higher
officials for decision. When he had no doubts, he could decide
all matters himself. We got these cases originally from the
Wehrmacht and later from the Gestapo. The distribution of these
cases to the competent Special Courts or to the People’s Court,
von Ammon decided independently. Von Ammon also had to review
the indictments and sentences and to obtain the minister’s
decision concerning the execution of death sentences. The
question posed by the exclusion of foreign means of evidence
was a legal problem of the first order. Since it had been
prescribed from above, the Ministry of Justice had no freedom of
disposition in this matter. This is another one of the reasons
why we should not have taken over these things.”
Defendant von Ammon was ministerial councillor in Mettgenberg’s
subdivision in charge of the Night and Fog matters. The two acted
together on doubtful matters and referred difficult questions to
competent officials in the Reich Ministry of Justice and the Party
Chancellery, since both of these offices had to give their “agreement”
in cases of malicious attacks upon the Reich or Nazi Party, or in Night
and Fog cases, which came originally from the Wehrmacht, and later from
the Gestapo, and jurisdiction of which were assigned to Special Courts
at several places in Germany and to the People’s Court at Berlin by
defendant von Ammon. In his affidavit he states (_NG-486, Pros. Ex.
337_):
“The decree of 7 February 1942, signed by Schlegelberger,
contained, among others, the following provisions: Foreign
witnesses could be heard in these special cases only with the
approval of the public prosecutor, since it was to be avoided
that the fate of NN prisoners became known outside of Germany.
“The presiding judges of the courts concerned had to notify
the public prosecutor if they intended to deviate from their
notion for a sentence. Freisler noted in this connection that
this constituted the utmost limit of what could be asked of the
courts. The special nature of this procedure made it necessary
to make such provisions.
“Later, when Thierack entered the Reich Ministry of Justice, he
changed the decree in such a manner that the courts no longer
had to declare their dissenting views to the public prosecutor,
but that the acquitted NN prisoners or those who had served
their sentences had to be handed over by the court authorities
to the Gestapo for protective custody. Under Secretary of State
Schlegelberger himself was not present at the conference, but
Under State Secretary Freisler left the conference briefly in
order to secure the signature of Schlegelberger.
“I must admit that, in dealing with these matters, I did not
particularly feel at ease. It was my intention to get the best
out of this thing and to emphasize humanitarian considerations
as much as possible in these hard measures. I have seen from the
first Nuernberg trials that the court has declared the ‘Night
and Fog’ decree as being against international law and that
Keitel, too, declared that he had been aware of the illegal
nature of this decree. Freisler, though, represented it to us in
such a manner as to create the impression that the decree was
very hard but altogether admissible.”
Mettgenberg and von Ammon were sent to the Netherlands occupied
territory because some German courts set up there were receiving
Night and Fog cases in violation of the decree that they should be
transferred to Germany. They held a conference at The Hague with the
highest military justice authorities and the heads of the German courts
in the Netherlands, which resulted in a report of the matter to the OKW
at Berlin, which agreed with Mettgenberg and von Ammon that--
“The same procedure should be used in the Netherlands as in
other occupied territories, that is, that all Night and Fog
matters should be transferred to Germany.”
With respect to the effectiveness and cruelty of the NN decree, the
defendant von Ammon commented thus:
“The essential point of the NN procedure, in my estimation,
consisted of the fact that the NN prisoners disappeared from the
occupied territories and that their subsequent fate remained
unknown.”
The distribution of the NN cases to the several competent Special
Courts and the People’s Court was decided upon by defendant von Ammon.
A report of 9 September 1942, signed by von Ammon, addressed to
defendant Rothenberger, to be submitted to the Minister of Justice and
the defendant Mettgenberg, stated that there are pending in Special
Courts Night and Fog cases as follows: At Kiel, nine cases with 262
accused; at Essen, 180 cases with 863 accused; and at Cologne, 177
cases with 331 accused. By November 1943 there were turned over at
Kiel, 12 cases with 442 accused; at Essen, 474 cases with 2,613
accused; and at Cologne, 1,169 cases with 2,185 accused.
A note dated Berlin, 26 September 1942, for the attention of defendant
Rothenberger, signed by defendant von Ammon, stated that by order of
the Reich Minister the hitherto--
“Exclusive jurisdiction of the Special Courts over NN cases is
to some extent to be replaced by the People’s Court of justice.”
A letter dated 14 October 1942 to Minister of Justice Thierack from
Freisler, then president of the People’s Court, states that he
understood that a conference held on 14 October 1942 extended the
jurisdiction of the People’s Court over NN cases. Freisler states that
he conducted the preliminary proceedings with Ministerial Director
Lehmann of the OKW with regard to the Ministry of Justice taking over
the Night and Fog proceedings. He explains that the Night and Fog
proceedings were top secret and no file or records were made in order
to be quite sure that under no circumstances should any information
be obtained by the outside world with regard to the fate of the alien
prisoners. He also emphasizes the fact that under no circumstances
could any other sentence than the one proposed by the public prosecutor
be passed and to make sure of this in the technical routine it was
decided that--
“1. The prosecutor should be entitled to withdraw the charges
until the pronouncement of the sentence.
“2. The court was to be instructed to give the prosecutor
another chance to give his point of view, in case their view
should diverge from his.”
Freisler further states:
“In fulfillment of my promise I deemed it necessary to inform
you of this, dear sir, as these facts were not permitted to
be recorded in the files and are probably unknown in the
department.”
By his supplemental directive of 28 October 1942, Thierack made note
of the fact that the “jurisdiction of the People’s Court (No. 1, 1
and 2 of the additional circular directives of 14 October 1942)”
had been extended to NN cases. Thierack’s letter, dated 25 October
1942 to defendant Lautz, copy to von Ammon, established and expanded
jurisdiction of the People’s Court over NN cases.
Thereafter the People’s Court handled many Night and Fog cases,
convicting the accused in secret sessions with no records whatsoever
made of any evidence adduced and no record was made of the sentence
pronounced. The defendant von Ammon testified that about one-half of
the Night and Fog prisoners tried by the People’s Court were executed.
Later NN cases were sent to German Special Courts at Breslau and
Katowice, Poland, and to Silesia and other places as will be shown
herein.
_Concentration Camps_
The use of concentration camps for NN prisoners was shown by a letter
dated 18 August 1942, signed by Gluecks, SS Brigadefuehrer and General
Major of the SS, which contained enclosures for information and
execution by officials in charge of concentration camps, including
Mauthausen, Auschwitz, Flossenbuerg, Dachau, Ravensbrueck, Buchenwald,
and numerous others. The letter states that such prisoners will be
transferred under the Keitel decree from the occupied countries to
Germany for transfer to Special Courts. Should that for any reason
be impossible, the accused will be put into one of the above-named
concentration camps. Those in charge of the camps were instructed that
absolute secrecy of such prisoners’ detention was to be maintained
including the prevention of any means of communication with the outside
world either before or after the trial.
The following is illustrative of inhumane prison conditions for NN
prisoners. The affidavit of Ludwig Schirmer, warden in the prison at
Ebrach, confirmed by his oral testimony, states:
“The Ebrach prison which was used for criminal convicts had a
capacity of 595 prisoners. In 1944, however, the prison became
overcrowded and finally held a maximum of from 1,400 to 1,600
prisoners in 1945.
“This crowding had been caused by numerous NN prisoners from
France and Belgium. Among them was the French General Vaillant
who died in the prison of old age and of a heart disease. Owing
to the overcrowding of the penitentiary, it was impossible to
avoid the frequent outbreak of diseases, such as pulmonary
tuberculosis, consumption, and, of course many cases of
undernourishment. The very poor medical care was a serious
disadvantage; the doctor showed up only two or three times a
week. Sixty-two inmates died during the last months of the war.
Many of them, of course, came in already sick. During the last
months, a criminal convict was employed as physician. He was a
morphinomaniac and a man of very low character.
“Although there were stocks of food at hand, the feeding of
prisoners was bad; people got only soup and turnips for weeks.
NN prisoners were crowded together, four in a single cell. From
time to time a certain number of the prisoners was transferred
to the concentration camp.”
The affidavit of Josef Prey, head guard at the Amberg prison,
confirmed by his oral testimony, states that foreigners, Jews, and NN
prisoners at Amberg prison, which had a capacity of 900 to 1,100 were
incarcerated there. Yet shortly before the collapse there were 2,000
prisoners of whom 800 to 900 prisoners were Polish, and NN prisoners
who included Frenchmen, Dutchmen, and Belgians. From time to time by
secret decree prisoners were transferred to the concentration camps
at Mauthausen. Defendant Engert, the official representative of the
department of justice, visited and officially inspected the prison and
knew of these conditions.
By his affidavit Engert states that Thierack told him the Night and
Fog prisoners had to be treated with special precaution, not allowed
any correspondence, locked up hermetically from the outer world, and
that care should be taken that their real names remain unknown to the
lower prison personnel. Engert further states that these orders were
the result of the Fuehrer decree of 7 December 1941 and that Thierack
told him the Night and Fog prisoners were accused of resistance and
violence against the armed forces. He did not know what became of these
NN prisoners at the various prison camps. He did know that an agreement
existed with the Gestapo that the bodies of Night and Fog prisoners
should be given to them for secret burial. It was shown by other
testimony that defendant Engert was ministerial director, who handled
and investigated the Night and Fog prisoners and that he was in charge
of the task of transferring prisoners and knew their nationality and
the character of crime charged against them.
On 14 June 1944 defendant von Ammon wrote Bormann, Chief of the Party
Chancellery, a letter sent by way of defendant Mettgenberg, requesting
permission of the Fuehrer to inform NN women held under death sentence
of the fact that such sentence has been reprieved, since he considers
it to be unnecessarily cruel to keep these “condemned women” in
suspense for years as to whether their death sentence will be carried
out.
Mrs. Solf, the widow of a former distinguished German cabinet officer
and ambassador, testified that she was tried and held as a political
prisoner of the Nazi regime for several years in Ravensbrueck
concentration camp and other prisons where a large number of foreign
women were imprisoned. Concerning the ill-treatment of these women and
the prison conditions under which they were incarcerated, Mrs. Solf
testified:
“As to the prisoners who were with me at Ravensbrueck, as far
as I can remember there was only an Italian woman of Belgian
descent who was treated well, better than we were. However, in
the penitentiary of Cottbus, as well as in the prison of Moabit,
I met many foreigners. In the penitentiary of Cottbus, there
alone were 300 French women who were sentenced to death, and
five Dutch women sentenced to death who after a week or two were
pardoned to penitentiary terms and whom
I saw in the courtyard. The 300 French women sentenced to death
were sent to Ravensbrueck at the end of November 1944. The night
before they were transported they had to sleep on a bare stone
floor. One of the auxiliary wardens, who was also an interpreter
for them and who had a great deal of courage and a kind heart,
came to me in order to ask us political prisoners to give them
our blankets, which we certainly did.”
She further testified:
“I know and have seen for myself that, for instance, in Moabit,
some of the brutal wardens kicked them and shouted at them for
reasons which seemed very, very unjust because these women did
not understand what they were supposed to do.”
The Night and Fog decree was from time to time implemented by several
plans or schemes, which were enforced by the defendants. One plan or
scheme was the transfer of alleged resistance prisoners or persons
from occupied territories who had served their sentences or had been
acquitted to concentration camps in Germany where they were held
incommunicado and were never heard from again. Another scheme was the
transfer of the inhabitants of occupied territories to concentration
camps in Germany as a substitute for a court trial. Defendant Engert
made such an order.
_Trials under NN Decree_
The evidence establishes beyond a reasonable doubt that in the
execution of the Hitler NN decree the Nazi regime’s Ministry of
Justice, Special Courts, and public prosecutors agreed to and
acted together with the OKW and Gestapo in causing to be arrested,
transported to Germany, tried, sentenced to death and executed, or
imprisoned under the most cruel and inhumane conditions in prisons
and concentration camps, thousands of the civilian population of the
countries overrun and occupied by the Nazi regime’s military forces
during the prosecution of its criminal and aggressive war.
The trials of the accused NN persons did not approach even a semblance
of fair trial or justice. The accused NN persons were arrested and
secretly transported to Germany and other countries for trial. They
were held incommunicado. In many instances they were denied the right
to introduce evidence, to be confronted by witnesses against them, or
to present witnesses in their own behalf. They were tried secretly
and denied the right of counsel of their own choice, and occasionally
denied the aid of any counsel. No indictment was served in many
instances and the accused learned only a few moments before the trial
of the nature of the alleged crime for which he was to be tried. The
entire proceedings from beginning to end were secret and no public
record was allowed to be made of them. These facts are proved by
captured documents and evidence adduced on the trial, to some of which
we now advert.
The first trial of NN cases took place at Essen. A letter from the
prosecutor, dated 20 August 1942, addressed to the Reich Minister of
Justice, was received on 27 August 1942, states that five defendants
were to be tried and that two of them were to get prison terms and
that--
“In the remaining cases the death sentence is to be ordered
and inquiries made whether they should be executed by the
guillotine.”
These sentences were later pronounced.
In response to several inquiries from prosecutors at Special Courts
in Essen, Kiel, and Cologne citing pending NN cases, the defendants
Mettgenberg and von Ammon replied that, in view of the regulation for
the keeping of NN trials absolutely secret, defense counsel chosen by
NN defendants would not be permitted.
In these same inquiries, it is stated that if defense counsel were
carefully selected from those who were recognized as unconditionally
reliable, pro-State and judicially efficient lawyers, no difficulty
should arise with respect to the secrecy of such proceedings. It is
suggested that if an attorney should inquire concerning representation
of an NN defendant, he should be informed that it is not permissible to
investigate whether or not there was any proceeding pending against the
accused. This inquiry related to 16 NN French defendants who were to
be tried at Cologne. Other evidence introduced in the case showed that
this practice was followed.
The foreign countries department of the Wehrmacht High Command reported
to defendant von Ammon on 15 October 1942 a list of 224 alleged spies
arrested in France in the execution of what was known as “Action
porto”, of whom 220 had already been transported to Germany. Inquiry
was made whether these prisoners should be regarded as coming under
Hitler’s NN Decree. A later directive issued 6 March 1943, which was
initialed by defendant Mettgenberg and sent to the SS Chief Himmler,
states that orders and regulations covering NN prisoners in general
will be applied to “porto action” groups. The circular decree states
further that in case of death of “porto action” prisoners, the same
procedure is followed with respect to secrecy as is followed in NN
cases, and that the estates of “porto action” prisoners are to
be retained by the penal institution for the time being, and that
relatives are not to be informed about the death of such prisoners,
especially not of their execution.
A letter dated 9 February 1943, Berlin, to the president of the
People’s Court, chief public prosecutor at Kiel and Cologne, and Chief
Public Prosecutor at Hamm, states that for the purpose of carrying out
the Night and Fog decree or directive (_NG-253, Pros. Ex. 317_):
“In trials (before the Landesgericht), in which according to
the regulations, defense counsel has to be provided for the
defendant, the regulation may be ignored when the president of
the court can conscientiously state that the character of the
accused and the nature of the charge make the presence of a
defense counsel superfluous.”
In connection with the foregoing matter, a secret note to defendant von
Ammon, dated 18 January 1941, suggests that a regulation concerning
counsel for NN prisoners should be drafted. A letter dated 4 January
1943 states that in accordance with the power granted under the
Fuehrer’s order of 7 December 1941 (_NG-253, Pros. Ex. 317_):
“Article IV, paragraph 32 of the Competence Decree of 21
February 1940 (relating to appointment of defense counsel) is
cancelled. The president of the court will order defendant to
be represented only if he is unable to defend himself or for
any special reason it seems desirable that defendant should be
represented.”
A letter dated 21 April 1943, Berlin, by Thierack, Minister of Justice,
states that (_NG-256, Pros. Ex. 320_):
“Your ordinance of 21 December 1942 decreed that in criminal
cases concerning criminal actions against the Reich and the
occupation authority in the occupied territories, defense
counsel of one’s own choice should not be approved of on
principle.”
A letter by Thierack to the president of the People’s Court, Berlin,
dated 13 May 1943, states that (_NG-256, Pros. Ex. 320_):
“The directives given by the Fuehrer on 7 December 1941 for the
prosecution of criminal actions committed against the Reich
or the occupation authorities in the occupied territories are
applicable, according to their meaning and their tenor, to
foreigners only, and not to German nationals or provisional
Germans.”
A draft of an extensive secret order or directives of the Reich
Minister of Justice, dated 6 March 1943, covering secret NN procedure
was sent to and initialed by or for heads of Ministry Departments III
and IV (the defendant Mettgenberg), Department V (headed by defendant
Engert), [initialed by Marx] and Department VI (headed by defendant
Altstoetter). The directives instructed all so concerned to take
further measures “in order not to endanger necessary top secrecy of NN
procedure”. Separate copies of this order, dated 6 March 1943, were
sent to the afore-mentioned ministry departments, including Department
VI, headed by defendant Altstoetter, who admits having seen and
executed the directives, to defendant von Ammon and to, among others,
the chief Reich prosecutor at the People’s Court (defendant Lautz); the
attorneys general in Celle, Duesseldorf, Frankfurt on Main, Hamburg,
Hamm, Kiel, and Cologne; and the attorney general at the Prussian Court
of Appeal; and for the attention of presidents of the People’s Court,
district courts of appeal at Hamm, Kiel, and Cologne, and the Prussian
court of appeal at Berlin. Among the measures of secrecy included
in the order or directives were the following (_NG-269, Pros. Ex.
319_):
“The cards used for investigations for the Reich criminal
statistics need not be filled in. Likewise, notification of the
penal records office will be discontinued until further notice.
However, sentences will have to be registered in lists or on a
card index in order to make possible an entry into the penal
records in due course.
“In case of death, especially in cases of execution of NN
prisoners, as well as in cases of female NN prisoners giving
birth to a child, the registrar must be notified as prescribed
by law. However, the following remark has to be added:
“‘By order of the Reich Minister of the Interior, the entry into
the death (birth) registry must bear an endorsement, saying
that examination of the papers, furnishing of information and
of certified copies of death (birth) certificates is only
admissible with the consent of the Reich Minister of Justice.’”
Department VI headed by defendant Altstoetter handled matters relating
to registration of deaths and births. The order further provides:
“Farewell letters by NN prisoners as well as other letters must
not be mailed. They have to be forwarded to the prosecution who
will keep them until further notice.
“If an NN prisoner who has been sentenced to death and informed
of the forthcoming execution of the death sentence desires
spiritual assistance by the prison padre, this will be granted.
If necessary, the padre must be sworn to secrecy.
“The relatives will not be informed of the death and especially
of the execution of an NN prisoner. The press will not be
informed of the execution of a death sentence, nor must the
execution of a death sentence be publicly announced by posters.
“The bodies of executed NN prisoners or prisoners who died from
other causes have to be turned over to the State Police for
burial. Reference must be made to the existing regulations on
secrecy. It must be pointed out especially that the graves of NN
prisoners must not be marked with the names of the deceased.
“The bodies must not be used for teaching or research purposes.
“Legacies of NN prisoners who have been executed or died from
other causes must be kept at the prison where the sentence was
served.”
Later, in some instances the right to spiritual assistance was denied
and a later directive authorized the turning over of bodies of NN
persons to institutes for experimental purposes.
A letter dated 3 June 1943, from the Reich Ministry of Justice to the
People’s Court justices and the Chief Public Prosecutors, initialed
by defendant Mettgenberg, deals with the subject of trials under the
NN decree of foreigners who were nationals of other countries than
those occupied by the Nazi forces. The difficulty obviously involved a
violation of international law as to such nationals of other countries.
In particular, the difficulty arose as to the regulation for the
maintenance of secrecy of such trials and whether the secrecy with
regard to NN cases should apply. The reply was that they were to be
tried in accordance with the circular decrees of 6 February 1942 and
14 October 1942, and the regulations issued for the amendment of these
circular decrees to be entitled “NN Prisoners Taken by Mistake”. This
decree provides that if the trial of such foreigners could not be
carried out separately from the trial of the nationals of the occupied
countries for reasons pertaining to the presentation of evidence, then
the trials were to be strictly in accordance with the provisions of NN
procedure; otherwise said foreign nationals would obtain knowledge of
the course of the trial against their accomplices.
A note signed by the defendant von Ammon, dated 7 October 1943, states
that NN prisoners were often ignorant of charges against them until a
few moments before the trial. He further states that Chief Reich Public
Prosecutor Lautz asked him whether there were any objections to the
translation of the indictment into the language of the defendant, which
would then be handed to him. Defendant von Ammon replied that there
would be no objection to the proceeding and stated (_NG-281, Pros.
Ex. 323_):
“It proved rather awkward that defendants learned the details of
their charges only during the trial. Also, the interpretation
by defense counsel is not always sufficient because their French
mostly is not good enough and defendants were brought to the
place of trial only shortly before it was held.”
The same difficulty arose as to Czech defendants.
A report on a conference with respect to new procedure in treatment of
Night and Fog cases originating in the Netherlands, signed “von Ammon”
and “Mettgenberg, 9 November 1943”, addressed to Ministerial Director
Engert and others, states that while returning from The Hague to Berlin
the undersigned representative of the Reich Ministry of Justice held on
5 November as scheduled, a conference with the head officials of the
court of appeals at Hamm and that defendant Joel thought the housing of
NN prisoners, also such of Dutch nationality, at Papenburg, would be
possible and unobjectionable. This was later carried out.
A secret letter dated 29 December 1943, addressed to defendant von
Ammon from the presiding judge and chief prosecutor of Hamm Court
of Appeals notified von Ammon of an imminent conference concerning
transfer of the NN trials to the NN Special Courts at Oppeln and
Katowice.
A letter from Breslau dated 10 January 1944, signed by Dr. Sturm, asks
that ministerial councillor, defendant von Ammon, be available for a
meeting at Breslau between 15 and 31 January 1944 to discuss routine
proceedings for handling NN cases.
A letter addressed to the German commander of the French occupied
zone states that effective from 15 November 1943 all cases of crimes
committed against the Reich or the occupation forces in occupied French
zones hitherto submitted to the ordinary legal authorities were to be
taken over by the Special Court and attorney general in Cologne and
Breslau.
The defendant von Ammon attended conferences with public prosecutors in
Breslau and Katowice (Poland) on 18 and 19 February 1944, concerning
housing of NN prisoners and possibility of transferring NN cases from
the Netherlands, Belgium, and northern France to Special Courts in
Poland for trial; von Ammon reported the results of these conferences
in detail to, among others, the defendant Klemm (under secretary)
and personally wrote on his report that he had secured appropriate
Gauleiter’s concurrence to the proposed transfer. Shortly thereafter
the Ministry of Justice issued a decree endorsed to the defendant
Mettgenberg for signature, and submitted twice to von Ammon, for
information and cosignature, whereby these Dutch, Belgian, and
northern French NN cases were to be transferred to Silesia for trial.
In response to this decree, von Ammon was personally notified that
the defendant Joel (then general public prosecutor at Hamm) feared
objections from the Wehrmacht because of the longer transportation
involved in the transfer.
A directive by the Reich Minister of Justice with respect to treatment
of NN prisoners, dated Berlin, 21 January 1944, initialed by defendant
von Ammon, to the president of the People’s Court, to the Reich Leader
SS, Reich prosecutor of the People’s Court (defendant Lautz), to the
Chief Public Prosecutor at Hamm (defendant Joel), and others, states
that when an NN prisoner had been acquitted by a general court, if
it appears that the accused is innocent or if his guilt has not been
established sufficiently, then he has to be handed over to the Secret
Police. The directive further states:
“If in the main trial of an NN proceeding it appears that the
accused is innocent or if his guilt has not been sufficiently
established, then he is to be handed over to the Secret State
Police; the public prosecutor informs the Secret State Police
about his opinion whether the accused can be released and return
into the occupied territories, or whether he is to be kept under
detention. The Secret State Police decide which further actions
are to be taken.
“Accused who were acquitted, or whose proceedings were closed in
the main trial, or who served a sentence during the war, are to
be handed over to the Secret State Police for detention for the
duration of the war.”
A letter dated 21 January 1944, Berlin, to the OKW and the Judge
Advocate General Department, dispatched 22 January 1944 (copy to
Dr. Mettgenberg with request for approval) complains of lack of
coordination in NN cases between military courts and justice officials.
This complaint relates primarily to transfer of NN cases.
In answer to the objections to the transfer of NN cases arising in
France from Cologne to Breslau, dated 18 January 1944, the defendants
Mettgenberg and von Ammon insisted that the transfer is necessary and
directed its accomplishment. Three days later a letter endorsed by
Mettgenberg informed Himmler that this transfer of NN cases had taken
place.
On 24 April 1944 von Ammon reported in detail on a trip he made to
Paris previously referred to. This official visit served particularly
to obtain information of the security situation in France and to
determine whether the NN procedures of the Breslau Special Court
were approved by the army. This meeting occurred in the office of
the Chief Justice of the German Military Governor of Paris, General
von Stuelpnagel. Von Ammon submitted this report both to Klemm and
Mettgenberg who initialed it.
A letter from Hamm (Westphalia), 26 January 1944, to the Reich Minister
Thierack, signed by defendant Joel, suggests the speeding up of
proceedings to avoid delays in NN cases, and suggests that:
“The Chief Public Prosecutor submits record to the chief
Reich prosecutor only if, according to previous experience or
according to directives laid down by the chief Reich prosecutor,
it is to be expected that he will take over, or partly take over
the case.
“As a rule, even now when the draft of the indictment is
submitted for approval to the Reich Minister of Justice, the
records are not enclosed. The decision rests with me, to whom
the documents are brought by courier.”
A note signed by Dr. Reicholt, 20 April 1944, copy to defendant von
Ammon, expresses the same difficulty experienced by defendant Joel and
asks that Chief Public Prosecutor at the People’s Court decide quickly
which of the accused persons he wanted to keep so that they may be
transferred as quickly as possible.
The foregoing requests for speed in handling NN cases were due to
disturbances caused by air raids. The Reich Minister of Justice
replied, 26 April 1944, that in the main “the delay in the proceedings
is unavoidable.”
Defendant von Ammon reported on a conference with German occupying
forces of Belgium and northern France, held in Oppeln on 29 and 30 June
1944. Von Ammon stated that since the Allied invasion had not caused
undue tension as yet, it was unnecessary at that time to make penalties
in NN cases more severe. This report was initialed by defendant
Mettgenberg.
_Disposition of NN Cases_
A statistical survey of NN cases as of 1 November 1943 made to
Ministerial Director Dr. Vollmer, Berlin, 22 November 1943, shows cases
and sentences passed on NN prisoners as follows:
1. Turned over by the Wehrmacht authorities to senior public
prosecutors at Kiel, 12 cases with 442 defendants; at Essen, 474 cases
with 2,613 defendants; at Cologne, 1,169 cases with 2,185 defendants.
2. Charges filed by senior public prosecutors as follows: At Kiel, nine
cases with 175 defendants; at Essen, 254 cases with 860 defendants; at
Cologne, 173 cases with 257 defendants; by chief public prosecutor at
the People’s Court (Lautz), 111 cases with 494 defendants.
3. Sentences passed by Special Courts at Kiel, eight on 168 defendants;
at Essen, 221 cases with 475 defendants; at Cologne, 128 cases with
183 defendants; at People’s Court, 84 cases with 304 defendants.
The defendant von Ammon testified that about one-half of all defendants
tried by the People’s Court were given the death penalty and were
executed. The foregoing documents show that defendant Lautz was Chief
Public Prosecutor at the People’s Court at the time the 304 sentences
were pronounced in the Night and Fog cases.
A similar survey, 5 months later (30 April 1944), shows that of a total
of 8,639 NN defendants transferred to the various Special Courts and
the People’s Court in Germany, 3,624 were indicted, and 1,793 were
sentenced. Defendant von Ammon initialed this survey.
The foregoing statistical reports as to time are obviously incomplete.
They do not show the number of NN cases tried at Breslau, Katowice, and
other places. The foregoing documents show that at these places great
difficulty was experienced because of lack of prisons for the large
number of NN prisoners who were sent to these areas. Nor do they show
the number of NN prisoners committed to concentration camps without
trial. They do not show the number of residue NN prisoners who were
at the end of the control of NN matters by the Minister of Justice
committed to concentration camps and never heard from thereafter.
_Use of NN Prisoners in Armament Industry_
In file of reports for the years 1943 and 1944 of NN cases still
pending in the Ministry of Justice, the attorney general at Katowice
(Poland) stated to the Ministry of Justice the following (_NG-264,
Pros. Ex. 334_):
“NN prisoners held within the jurisdiction of the Court of
Appeal of Katowice are already employed to a large extent in
the armament industry, regardless of whether they are being
held for questioning or punishment. They are quartered there in
special camps at or near the place of the respective industrial
enterprise. In this way it is intended, if possible, to place
all NN prisoners at the disposal of the armament industry.
“It has been disclosed that the NN prisoners already employed
in the armament industry, as for instance the 400-odd prisoners
working in Laband, have done a very good job and excel in
particular as skilled workers. The armament industry therefore
wants to retain the employed NN prisoners also after their
acquittal or after they have served their sentence.
“I ask for a decision on whether and, if so, how that demand can
be complied with. Considerable doubts arise from the fact that
there is no legal right to confine them further and that the
judicial authorities would thus take preventive police measures.
There is the question, however, whether the situation of the
Reich does not justify even such extraordinary measures.”
This request was handled by defendant von Ammon, who endorsed it as
follows:
“Submitted * * * first to Department V (headed by defendant
Engert) with the request for an opinion. If you have no
objections I intend to contact the RSHA in accordance with the
report of the attorney general at Katowice.”
_Clemency in the NN Cases_
As Under Secretary, defendant Klemm was required to pass upon clemency
matters either while acting with or in the absence of the Minister of
Justice. He admits passing upon clemency pleas in NN death cases and
refusing all of them. Fourteen documents concerning NN matters passed
through defendant Klemm after he became under secretary of State. He
knew of the transfer of NN cases from Essen to Silesia and knew of
“routine” NN matters which passed through his department.
In the fall of 1944 Hitler ordered the discontinuance of the NN
proceedings by the justice and the OKW courts and transferred the
entire problem to the Gestapo, the NN prisoners being handed over
to the Gestapo at the same time. In later conferences attended by
defendant von Ammon, the Ministry of Justice agreed to and later
actually carried out the transfer by committing them from the
Ministry’s prisons to the Gestapo’s custody. Defendant Lautz was
ordered to suspend People’s Court proceedings against NN prisoners and
transfer them to the Gestapo. The witness Hecker stated that those NN
prisoners of the Berlin district, of which he had knowledge, were sent
to Oranienburg.
The final order of the Ministry of Justice committing all NN prisoners
on hand to the Gestapo and the concentration camps was one of extreme
cruelty.
The foregoing documents and the undisputed facts show that Hitler and
the high ranking officials of the armed forces and of the Nazi Party,
including several Reich Ministers of Justice and other high officials
in the Ministry of Justice, judges of the Nazi regime’s courts, the
public prosecutors at such courts, either agreed upon, consented to,
took a consenting part in, ordered, or abetted, were connected with the
Hitler NN plan, scheme, or enterprise involving the commission of war
crimes and crimes against humanity during the waging of the recent war
against the Allied nations and other neighboring nations of Germany.
The foregoing documents and facts show without dispute that several
of the defendants participated to one degree or another either as a
principal; or ordered, or abetted, took a consenting part in, or were
connected with the execution or carrying out of the Hitler NN scheme or
plan. The defendants so participating will be later discussed in the
summation of the evidence.
The Night and Fog decree originated with Hitler as a plan or scheme
to combat alleged resistance movements against the German occupation
forces but it was early extended by the Ministry of Justice to include
offenses against the German Reich. Often the offenses had nothing to
do with the security of the armed forces in the occupied territories.
Many of them occurred after military operations had ceased and in areas
where there were no military operations. The first secret decree of the
Ministry of Justice for the execution or carrying out of the NN decree
provided for:
“1. The prosecution of criminal offenses against the Reich or,
”2. The occupation troops in occupied areas.”
It declared that the directive will be as a rule applicable to the
seven above listed general types of offenses or crimes, including
“Communist activity”. The term “Communist activity” is general and
political in nature. The evidence shows that political prisoners in
occupied territories were tried and sentenced to death under the NN
proceedings. Pertinent here with respect to the so-called resistance
activities is the finding of the IMT that:
“The local units of the Security Police and SD continued their
work in the occupied territories after they had ceased to be
an area of operations. The Security Police and SD engaged in
widespread arrests of the civilian population of these occupied
countries, imprisoned many of them under inhumane conditions,
subjected them to brutal third degree methods, and sent many of
them to concentration camps. Local units of the Security Police
and SD were also involved in the shooting of hostages, the
imprisonment of relatives, the execution of persons charged as
terrorists, [and saboteurs without a trial], and the enforcement
of the ‘Nacht und Nebel’ decrees under which persons charged
with a type of offense believed to endanger the security of the
occupying forces were either executed within a week or secretly
removed to Germany without being permitted to communicate with
their family and friends.”[656]
Defendant Schlegelberger explained the fundamental purpose of the NN
decree to be a deterrent “through cutting off of the prisoners from
every contact with the outside world”. He further explained “that the
NN prisoners were expected and were to be tried materially according
to the same regulations which would have been applied to them by the
courts martial in the occupied territories” and that accordingly, “the
rules of procedure had been curtailed to the utmost extent.”
The enforcement of the directives under the Hitler NN plan or
scheme became a means of instrumentality by which the most complete
control and coercion of a lot of the people of occupied territories
were affected and under which thousands of the civilian population
of occupied areas were imprisoned, terrorized, and murdered. The
enforcement and administration of the NN directives resulted in the
commission of war crimes and crimes against humanity in violation of
the international law of war and international common law relating to
recognized human rights, and of article II, paragraphs 1(_b_) and
(_c_) of Control Council Law No. 10.
During the war, in addition to deporting millions of inhabitants of
occupied territories for slave labor and other purposes, Hitler’s Night
and Fog program was instituted for the deportation to Germany of many
thousands of inhabitants of occupied territories for the purpose of
making them disappear without trace and so that their subsequent fate
remain secret. This practice created an atmosphere of constant fear
and anxiety among their relatives, friends, and the population of the
occupied territories.
The report of the Paris Conference of 1919, referred to above, listed
32 crimes as constituting “the most striking list of crimes as has ever
been drawn up, to the eternal shame of those who committed them.” This
list of crimes was considered and recognized by the Versailles Treaty
and was later recognized as international law in the manner herein
above indicated. Among the crimes so listed was the “deportation of
civilians” from enemy occupied territories.
Control Council Law No. 10 in illustrating acts constituting violations
of laws or customs of war, recognizes as war crimes the “deportation
to slave labour or for any other purpose of civilian population from
occupied territory.” (Art. II, 1(_b_).) C. C. Law 10 [Article II]
paragraph 1(_c_) also recognizes as crimes against humanity the
“enslavement, deportation, imprisonment * * * against any civilian
population.”
The IMT held that the deportation of inhabitants from occupied
territories for the purpose of “efficient and enduring intimidation”
constituted a violation of the laws and customs of war. The deportation
for the purpose of “efficient and enduring intimidation” is likewise
condemned by C. C. Law 10, under the provision inhibiting “deportation
* * * for any other purpose, of civilian population from occupied
territory.”
Also among the list of 32 crimes contained in the Conference Report of
1919 are “murder and massacre, and systematic terrorism”. C. C. Law
10 makes deportation of civilian population “for any purpose” a crime
recognized as coming within the jurisdiction of the law. The admitted
purpose of the Night and Fog decree was to provide an “efficient and
enduring intimidation” of the population of occupied territories. The
IMT held that the Hitler NN decree was “a systematic rule of violence,
brutality, and terror”, and was therefore in violation of the laws of
war as a terroristic measure.
The evidence shows that many of the Night and Fog prisoners who were
deported to Germany were not charged with serious offenses and were
given comparatively light sentences or acquitted. This shows that they
were not a menace to the occupying forces and were not dangerous in the
eyes of the German justices who tried them. But they were kept secretly
and not permitted to communicate in any manner with their friends and
relatives. This is inhumane treatment. It was meted out not only to the
prisoners themselves but to their friends and relatives back home who
were in constant distress of mind as to their whereabouts and fate.
The families were deprived of the support of the husband, thus causing
suffering and hunger. The purpose of the spiriting away of persons
under the Night and Fog decree was to deliberately create constant fear
and anxiety among the families, friends, and relatives as to the fate
of the deportees. Thus, cruel punishment was meted out to the families
and friends without any charge or claim that they actually did anything
in violation of any occupation rule of the army or of any crime against
the Reich.
It is clear that mental cruelty may be inflicted as well as physical
cruelty. Such was the express purpose of the NN decree, and thousands
of innocent persons were so penalized by its enforcement.
The foregoing documents show without dispute that the NN victim was
held incommunicado and the rest of the population only knew that a
relative or citizen had disappeared in the night and fog; hence,
the name of the decree. If relatives or friends inquired, they were
given no information. If diplomats or lawyers inquired concerning the
fate of an NN prisoner, they were told that the state of the record
did not admit of any further inquiry or information. The population,
relatives, or friends were not informed for what character of offense
the victim had been arrested. Thus, they had no guide or standard by
which to avoid committing the same offense as the unfortunate victims
had committed which necessarily created in their minds terror and dread
that a like fate awaited them.
Throughout the whole Night and Fog program ran this element of utter
secrecy. This secrecy of the proceedings was a particularly obnoxious
form of terroristic measure and was without parallel in the annals of
history. It could have been promulgated only by the cruel Nazi regime
which sought to control and terrorize the civilian population of the
countries overrun by its aggressive war. There was no proof that the
deportation of the civilian population from the occupied territories
was necessary to protect the security of the occupant forces. The
NN plan or scheme fit perfectly into the larger plan or scheme of
transportation of millions of persons from occupied territories to
Germany.
C. C. Law 10 makes deportation of the civilian population for any
purpose an offense. The international law of war has for a long period
of time protected the civilian population of any territory or country
occupied by an enemy war force. This law finds its source in the
unwritten international law as established by the customs and usages
of the civilized nations of the world. Under international law the
inhabitants of an occupied area or territory are entitled to certain
rights which must be respected by the invader occupant.
This law of military occupation has been in existence for a long period
of time. It was officially interpreted and applied nearly a half
century ago by the President of the United States of America during
the war with Spain in 1898. By General Order No. 101, 18 July 1898
(U. S. Foreign Relations, p. 783), the President declared that the
inhabitants of the occupied territory “are entitled to the security
in their persons and property and in all their private rights and
relations.” He further declared that it was the duty of the commander
of the Army of Occupation “to protect them in their homes, in their
employments, and in their personal and religious rights,” and that
“the municipal laws of the conquered territory, such as affect private
rights of persons and property and provide for punishment of crime,
are continued in force” and are “to be administered by the ordinary
tribunals, substantially as they were before the occupation.” The
President referred to the fact that these humane standards of warfare
had previously been established by the laws and customs of war, which
were later codified by the Hague Conventions of 1899 and 1907, and
which constituted the effort of the civilized participating nations
to diminish the evils of war by the limitation of the power of the
invading occupant over the people and by placing the inhabitants of
the occupied area or territory “under the protection and the rule of
the principles of the law of nations, as they result from the usages
established among civilized peoples, from the laws of humanity and the
dictates of the public conscience.”
A similar order was issued during the first war with Germany by
the President of the United States of America when the American
Expeditionary Forces entered the Rhineland in November 1918. (General
Order No. 218, 28 November 1918.) At the conclusion of this occupancy,
the German Government expressed its appreciation of the conduct of the
American occupying forces.
But Germany soon forgot these humane standards of warfare, as is shown
by the undisputed evidence. The general policy of the Nazi regime
was to terrorize and in some instances to exterminate the civilian
populations of occupied territories.
Pertinent here is the finding of the IMT that:
“In an order issued by the defendant Keitel on 23 July 1941, and
drafted by the defendant Jodl, it was stated that:
“‘In view of the vast size of the occupied areas in the East,
the forces available for establishing security in these areas
will be sufficient only if all resistance is punished, not
by legal prosecution of the guilty, but by the spreading of
such terror by the armed forces as is alone appropriate to
eradicate every inclination to resist among the population * *
*. Commanders must find the means of keeping order by applying
suitable Draconian measures’.”[657]
Both Keitel and Jodl were sentenced to death by the IMT and later
executed. It was the same Keitel who had issued, over his own
signature, the Hitler NN decree which provided that (_NG 669-PS,
Pros. Ex. 305_):
“Efficient and enduring intimidation can only be achieved either
by capital punishment or by measures by which the relatives of
the criminal and the population do not know the fate of the
criminal. This aim is achieved when the criminal is transferred
to Germany.”
Beyond dispute the foregoing decrees were inspired by the same thought
and purpose and represent the general policy of the Nazi regime in
the prosecution of its aggressive war. This general policy was to
terrorize, torture, and in some occupied areas to exterminate the
civilian population. The undisputed evidence in this case shows that
Germany violated during the recent war every principle of the law
of military occupation. Not only under NN proceedings but in all
occupations she immediately, upon occupation of invaded areas and
territories, set aside the laws and courts of the occupied territories.
She abolished the courts of the occupied lands and set up courts manned
by members of the Nazi totalitarian regime and system. These laws of
occupation were cruel and extreme beyond belief and were enforced by
the Nazi courts in a cruel and ruthless manner against the inhabitants
of the occupied territories, resulting in grave outrages against
humanity, against human rights and morality and religion, and against
international law, and against the law as declared by C. C. Law 10,
by authority of which this Court exercises its jurisdiction in the
instant case. The evidence adduced herein provides undeniable and
positive proof of the ill-treatment of the subjugated people by the
Nazi Ministry of Justice and prosecutors to such an extent that jurists
as well as civilians of civilized nations who respect human rights
and human personality and dignity can hardly believe that the Nazi
judicial system could possibly have been so cruel and ruthless in their
treatment of the population of occupied areas and territories.
The foregoing procedure under the NN decree was clearly in violation of
the following provisions sanctioned by the Hague Regulations:
“_Article 5._--Prisoners of war * * * cannot be confined
except as an indispensable measure of safety and only while the
circumstances which necessitate the measure continue to exist.
“_Article 23(h)._--* * * It is expressly forbidden * * * to
declare abolished, suspended, or inadmissible in a court of law
the rights and actions [of the nationals] of the hostile party.
“_Article 43._--The authority of the legitimate power
having in fact passed into the hands of the occupant, the latter
shall take all the measures in his power to restore, and ensure,
as far as possible, public order and safety, while respecting,
unless absolutely prevented, the law in force in the country.
“_Article 46._--Family honor and rights, the lives of
persons and private property, as well as religious convictions
and practice, must be respected. Private property cannot be
confiscated.”
Both the international rules of war and C. C. Law 10 inhibit the
torture of civilians by the occupying forces. Under the Night and Fog
decree civilians were secretly transported to concentration camps and
were imprisoned under the most inhumane conditions as was shown by
the above statements from captured documents. They were starved and
ill-treated while in concentration camps and prisons. Thus, the Night
and Fog decree violated these express inhibitions of international law
of war as well as the express provisions of C. C. Law 10.
Such imprisonment and ill-treatment was also in violation of the rule
prescribed by the Conference of Paris of 1919 which prohibits the
“internment of civilians under inhumane conditions”. The Night and
Fog decree was in violation of the international law as recognized by
the Paris Conference of 1919 in that the NN prisoners were deported to
Germany and forced to labor in the munitions plants of the enemy power.
The foregoing documents establish beyond dispute that they were so
employed in munitions plants with the sanction and approval of the
Reich Ministry of Justice under the approval of the defendant von Ammon.
The extent of activity and the criminality of the defendants who
participated in the execution and carrying out of the Night and Fog
decree will be discussed under the summation of the evidence relating
to each such defendant. Each defendant has pleaded in effect as a
defense the act of State as well as superior orders in justification
or mitigation of any crime he may have committed in the execution of
the Night and Fog decree. The basis for individual liability for crimes
committed and the law relating thereto was clearly and ably declared by
the IMT judgment which reads as follows:
“It was submitted that international law is concerned with
the actions of sovereign states, and provides no punishment
for individuals; and further, that where the act in question
is an act of state, those who carry it out are not personally
responsible, but are protected by the doctrine of the
sovereignty of the State. In the opinion of the Tribunal, both
these submissions must be rejected. That international law
imposes duties and liabilities upon individuals as well as
upon States has long been recognized. In the recent case of
_Ex parte Quirin_ (1942 317 U. S. 1), before the Supreme
Court of the United States, persons were charged during the war
with landing in the United States for purposes of spying and
sabotage. The late Chief Justice Stone, speaking for the Court,
said:
“‘From the very beginning of its history this Court has applied
the law of war as including that part of the law of nations
which prescribes for the conduct of war, the status, rights, and
duties of enemy nations as well as enemy individuals.’
“He went on to give a list of cases tried by the Courts, where
individual offenders were charged with offenses against the
laws of nations, and particularly the laws of war. Many other
authorities could be cited, but enough has been said to show
that individuals can be punished for violations of international
law. Crimes against international law are committed by men, not
by abstract entities, and only by punishing individuals who
commit such crimes can the provisions of international law be
enforced.”[658]
_RACIAL PERSECUTION_
The record contains innumerable acts of persecution of individual
Poles and Jews, but to consider these cases as isolated and unrelated
instances of perversion of justice would be to overlook the very
essence of the offense charged in the indictment. The defendants
are not now charged with conspiracy as a separate and substantive
offense, but it is alleged that they participated in carrying out a
governmental plan and program for the persecution and extermination
of Jews and Poles, a plan which transcended territorial boundaries
as well as the bounds of human decency. Some of the defendants took
part in the enactment of laws and decrees the purpose of which
was the extermination of Poles and Jews in Germany and throughout
Europe. Others, in executive positions, actively participated in
the enforcement of those laws and in atrocities, illegal even under
German law, in furtherance of the declared national purpose. Others,
as judges, distorted and then applied the laws and decrees against
Poles and Jews as such in disregard of every principle of judicial
behavior. The overt acts of the several defendants must be seen and
understood as deliberate contributions toward the effectuation of the
policy of the Party and State. The discriminatory laws themselves
formed the subject matter of war crimes and crimes against humanity
with which the defendants are charged. The material facts which must
be proved in any case are (1) the fact of the great pattern or plan
of racial persecution and extermination; and (2) specific conduct
of the individual defendant in furtherance of the plan. This is but
an application of general concepts of criminal law. The person who
persuades another to commit murder, the person who furnishes the lethal
weapon for the purpose of its commission, and the person who pulls the
trigger are all principals or accessories to the crime.
We turn to the national pattern or plan for racial extermination.
Fundamentally, the program was one for the actual extermination of
Jews and Poles, either by means of killing or by confinement in
concentration camps, which merely made death slower and more painful.
But lesser forms of racial persecution were universally practiced by
governmental authority and constituted an integral part in the general
policy of the Reich. We have already noted the decree by which Jews
were excluded from the legal profession. Intermarriage between Jews
and persons of German blood was prohibited. Sexual intercourse between
Jews and German nationals was punished with extreme severity by the
courts. By other decrees Jews were almost completely expelled from
public service, from educational institutions, and from many business
enterprises. Upon the death of a Jew his property was confiscated.
Under the provisions for confiscation under the 11th amendment to the
German Citizenship Law, _supra_, the decision as to confiscation
of the property of living Jews was left to the chief of the Security
Police and the SD. The law against Poles and Jews cited _supra_
(4 December 1941) was rigorously enforced. Poles and Jews convicted of
specific crimes were subjected to different types of punishment from
that imposed upon Germans who had committed the same crimes. Their
rights as defendants in court were severely circumscribed. Courts
were empowered to impose death sentences on Poles and Jews even where
such punishment was not prescribed by law, if the evidence showed
“particularly objectionable motives”. And, finally, the police were
given _carte blanche_ to punish all “criminal” acts committed by
Jews without any employment of the judicial process. From the great
mass of evidence we can only cite a few illustrations of the character
and operation of the program.
On 30 January 1939 in an address before the Reichstag, Hitler, who was
at that very time perfecting his plot for aggressive war, said:
“If the international Jewish financiers within and without
Europe succeed in plunging the nations once more into a world
war, then the result will not be the Bolshevization of the world
and thereby the victory of Jewry, but the obliteration of the
Jewish race in Europe.”
We quote from the writings of Alfred Rosenberg (since hanged), “High
Priest of the Nazi Racial Theory and Herald of the Master Race:”
“A new faith is arising today--the myth of the blood, the
faith to defend with the blood the divine essence of man. The
faith, embodied in clearest knowledge, that the Nordic blood
represents that mysterium which has replaced and overcome the
old sacraments.”[659]
The Rosenberg philosophy strongly supported the program of the Nazi
Party, which reads as follows:
“None but members of the nation (Volk) may be citizens of the
State. None but those of German blood, whatever their creed, may
be members of the nation. No Jew, therefore, may be a member of
the nation.”
It was to implement this program that the discriminatory laws against
Poles and Jews were enacted as hereinabove set forth.
A directive of the Reich Ministry of Justice, signed by Freisler, dated
7 August 1942, addressed to prosecutors and judges, set forth the
broad general purposes which were to govern the application of the law
against Poles and Jews and the specific application of that law in the
trial of cases. We quote (_NG-744, Pros. Ex. 500_):
“The penal law ordinance of 4 December 1941 concerning Poles was
intended not only to serve as a criminal law against Poles and
Jews, but beyond that also to provide general principles for
the German administration of law to adopt in all its judicial
dealings with Poles and Jews, irrespective of the role which
the Poles and Jews play in the individual proceedings. The
regulations of article IX for instance, according to which Poles
and Jews are not to be sworn in, apply to proceedings against
Germans as well. * * *
“1. Proceedings against Germans should be carried on whenever
possible without calling Poles and Jews as witnesses. If,
however, such a testimony cannot be evaded, the Pole or Jew
must not appear as a witness against the German during the main
trial. He must always be interrogated by a judge who has been
appointed or requested to do so, * * *.
“2. Evidence given by Poles and Jews during proceedings against
Germans must be received with the utmost caution especially in
those cases where other evidence is lacking.”
On 13 October 1942 the Reich Minister of Justice Thierack wrote to
Reichsleiter Bormann, in part as follows (_NG-558, Pros. Ex. 143_):
“With a view to freeing the German people of Poles, Russians,
Jews, and gypsies, and with a view to making the eastern
territories which have been incorporated into the Reich
available for settlements for German nationals, I intend to turn
over criminal proceedings against Poles, Russians, Jews, and
gypsies to the Reich Leader SS. In so doing I base myself on
the principle that the administration of justice can only make
a small contribution to the extermination of members of these
peoples. The justice administration undoubtedly pronounces very
severe sentences on such persons, but that is not enough to
constitute any material contribution toward the realization of
the above-mentioned aim.”
On 18 September 1942 a conference was held among Thierack, Himmler,
Bormann, Rothenberger, and others. The notes of the conference, signed
by Thierack, disclose that the subjects of discussion included “special
treatment” at the hands of the police in cases where judicial sentences
were not severe enough. Among other points agreed upon between
Bormann, Himmler, and Thierack, were the following (_654-PS, Pros.
Ex. 39_):
“The Reich Minister of Justice will decide whether and when
special treatment at the hands of the police is to be applied. *
* *
“The delivery of asocial elements while serving penal sentences
to the Reich Leader of SS to be worked to death. Persons under
security detention, Jews, gypsies, Russians, and Ukrainians,
Poles with more than 3-year sentences, Czechs and Germans with
more than 8-year sentences will be turned over without exception
according to the decision of the Reich Minister for Justice.
First of all the worst asocial elements among those just
mentioned are to be handed over. I shall inform the Fuehrer of
this through Reichsleiter Bormann. * * *
“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.”
The note further states:
“The Minister of Justice differs only in two points from the
suggestions of the Fuehrer’s deputy.”
It then states that the Fuehrer’s deputy considered it more appropriate
to authorize the Reich governors to introduce the special criminal
law, whereas the Minister of Justice provides for its introduction by
a Reich decree. The second difference of opinion was somewhat to the
credit of the defendant Schlegelberger. The Fuehrer’s deputy considered
the introduction of corporal punishment appropriate, and the Minister
of Justice refused to agree.
On 3 August 1942 the Reich Minister of Justice sent a draft of the
proposed ordinance to a number of high officials, including the Reich
Minister of Interior and the Reich Minister for Popular Enlightenment
and Propaganda. The letter was signed “By order: Freisler.” Freisler
was at that time State Secretary in the Reich Ministry of Justice. The
letter contained this significant statement:
“I have emphasized the importance in war of this ordinance
because it indirectly serves national defense.”
The enclosed draft provided that Jews should not be entitled to make
use of the right of appeal, revision, or complaint against decisions
in criminal cases, and could not appeal to the courts for a decision
against sentences inflicted by the police. It also provided that in
cases where an appeal had already been filed it should be considered
cancelled.
On 13 August 1942 the Reich Minister of Interior wrote to the Reich
Minister of Justice, requesting that the draft be extended so as to
restrict the right of Jews to appeal in administrative as well as
criminal cases. On the same day the defendant Schlegelberger wrote to
the Reich Minister for Popular Enlightenment and Propaganda concerning
the addition to the draft as suggested by the Reich Minister of the
Interior. We quote:
“I declare that I have no objections against an extension of
my draft to matters of administrative law and to decisions by
administrative authorities.”
He then suggested an additional provision to the effect that Jews
should be forbidden to testify on oath, but that they might be
prosecuted as for perjury though no oath is to be taken.
On 8 March 1943 the Chief of the Security Police and the SD,
Kaltenbrunner,[660] wrote to Minister of the Interior Frick urging
immediate passage of the proposed ordinance. The following reasons were
given:
“1. Previous evacuations of Jews have been restricted to Jews
who were not married to non-Jews. In consequence, the numbers of
Jews who have remained in the interior is quite considerable.
As the ordinance would also include these Jews as well, the
measures it plans are not objectless.
“2. The provision of article 7 of the ordinance according
to which, at the death of a Jew, his fortune escheats in
its entirety to the Reich, results in the accumulation of
considerably less work for the State Police. At the present
time the procedure used by the State Police in handling the
confiscation of such Jewish inheritances must frequently be
modified to suit each special case.”
He adds that the provision for the transfer of Jews to the police is
based on an agreement between Himmler and Thierack, who had by that
time succeeded Schlegelberger as Reich Minister of Justice.
On 21 April 1943 a memorandum for the files of the Reich Chancellery
reports a conference of State secretaries on the proposed ordinance at
which the defendant Rothenberger was present. The conference came to
the conclusion that certain modifications should be made. The final
result of the prolonged discussion was the enactment of the 13th
regulation under the Reich Citizenship Law of 1 July 1943, which was
signed by Frick, Bormann, and Thierack. It will be recalled that that
regulation, _supra_, provided that criminal actions committed
by Jews should be punished by the police; that the property of a Jew
should be confiscated after his death. These and other provisions were
also made effective in the Protectorate of Bohemia and Moravia where
German courts had jurisdiction.
With few exceptions Jews were wholly excluded from the administration
of justice. In a speech before the NSDAP congress on 14 September 1934,
Hans Frank stated:
“It is unbearable to us to permit Jews to play any role
whatsoever in the German administration of justice. * * * It
will therefore be our firm aim to exclude Jews increasingly from
the administration of the law as time goes on.”
On another occasion Frank, as president of the Academy for German Law,
directed: “For all future time it will be impossible that Jews will act
in the name of German Law. * * *”
In an order reminiscent of the “burning of the books” in medieval days,
Frank also directed that the works of Jewish authors should be removed
from all public or study libraries whenever possible.
On 5 April 1933 the defendant Barnickel made an entry in his diary:
“Today it is said in the newspaper that in Berlin there are
about 3,500 attorneys and more than half of them are Jewish.
Only 35 of them are to be admitted as lawyers. * * * To exclude
these Jewish attorneys from one day to the next means terrible
brutality.”
The defense witness, Fritz Wallentin, stated that in general all
non-Aryan judges were removed from the administration of penal justice
very soon after 30 January 1933. The evacuation of Jews to the East for
extermination was in full swing at least as early as November 1941, and
continued through the war years thereafter. As an illustration of the
nature of this program as carried out throughout the Reich, we cite
the report of the Secret State Police Main Office, Nuernberg-Fuerth;
Branch Office Wuerzburg. This report refers to the deportation from
a comparatively small area around the city of Wuerzburg and shows
evacuation of Jews to the East in the following numbers: On 27 July
1941, 202 persons; on 24 March 1942, 208 persons; on 25 April 1942,
850 persons; on 10 September 1942 (to Theresienstadt) 177 persons; on
23 September 1942 (to Theresienstadt) 562 persons; on 17 June 1943 (to
Theresienstadt) seven persons; on 17 June 1943, 57 Jews were evacuated
to the East. The report continues: “With this last transport, all the
Jews who had to be evacuated according to instructions issued have
left Main-Franken.” The report shows that the total number of 2,063
Jews were evacuated from the Main-Franken area alone. The furniture,
clothing and laundry items left by the Jews were given to the finance
offices of Main-Franken and turned into cash by them.
Even before transfers to the Gestapo had been substituted for judicial
procedure the position of a Pole or a Jew who was tried by the courts
was not a happy one. The right of self defense on the part of a Pole
was specifically limited. Poles and Jews could not challenge a German
judge for prejudice. Other limitations upon the right of appeal and
the like are set forth, _supra_ (law against Poles and Jews, 4
December 1941).
On 22 July 1942 Reich Minister Goebbels stated that “it was an
untenable situation that still today a Jew could protest against the
charge of the president of the police, who was an old Party member and
a high SS Leader. The Jew should not be granted any legal remedy at all
nor any right of protest.”
The defendant Lautz testified that according to the provisions of
decree which antedated the war and by reason of the general regulations
of the law in every case it had to be pointed out in the indictment if
the person was a Jew or of mixed race.
On 23 January 1943 the Oberlandesgericht president at Koenigsberg wrote
to the Minister of Justice concerning defense of Poles before tribunals
in Incorporated Eastern Territories. We quote:
“The decree of 21 May 1942 * * * states that in accordance
with the order on penal justice in Poland of 4 December 1941
attorneys are not (to) undertake the defense of Polish persons
before tribunals in the Incorporated Eastern Territories. This
decree has been received with satisfaction by all the judges and
prosecutors in the whole of my district.”
These directives by the authorities in the Reich under Hitler were not
mere idle threats. The policies and laws were rigorously enforced. We
quote from a sworn statement of former defendant Karl Engert as follows:
“The handing over to the Gestapo of Jews, Poles, and gypsies was
not under my supervision, but under that of Mr. Hecker, who
worked under me in my division. However, he was not responsible
to me, but directly to the Minister Thierack.” Again he said:
“About 12,000 inmates of the correction houses were assigned
for transfer to the Gestapo. * * * Out of the total 12,000 my
division assigned 3,000 for transfer in 1942. How many Jews,
Poles, and gypsies were assigned I do not know; that must be in
the statistics.”
Reich Minister Goebbels, in an address to the judges of the People’s
Court, on 22 July 1942, stated that “if still more than 40,000 Jews,
whom we considered enemies of the State, could go freely about in
Berlin, this was solely due to the lack of sufficient means of
transportation. Otherwise the Jews would have been in the East long
ago.”
Between 9 and 11 November 1938, a pogrom was carried out against
the Jews throughout the Reich, and upon direct orders from Berlin.
Defense witness Peter Eiffe testified that he heard rumors of the
proposed pogrom on the night of 8 November and called at the Ministry
of Propaganda where he was told that “somebody has let the cat out of
the bag again.” During the 3-day period Jewish property was destroyed
throughout the Reich and thousands of Jews were arrested.
In Berlin the destruction of Jewish property was particularly great. To
cap the climax on 12 November 1938, Field Marshal Goering issued the
following decree:[661]
“Article I.--All damage done due to the indignation of the
people at the incitement of international Jewry against
Nationalist Socialist Germany carried out on the 8, 9, and 10
November 1938, on Jewish enterprises and living quarters is to
be removed by the Jewish owners immediately.
“Article II.--The costs of restoration are to be borne by the
owner of the Jewish business concerned * * *.
“Section 2.--Insurance claims of Jews of German nationality will
be confiscated in favor of the Reich.”
For this purpose a fine of one billion marks was imposed upon the Jews.
The witness Schulz, who was an attorney in Berlin, acted in behalf of
Frau Liebermann, the widow of the internationally known artist, Max
Liebermann. Frau Liebermann was at that time 80 years old and the share
of the fine imposed upon her was 280,000 marks. Ultimately orders were
issued for her deportation to the East. She, however, died, either from
heart failure or poison, as she descended the steps to be carried away.
Defense witness Schulz[662] also testified concerning other methods of
Jewish persecution. He said:
“* * * When a Jew wanted to emigrate, I had much to do with it.
He had to pay the Reich escape tax, that was so and so much
percent of his property and then a large amount was taken away
from him by assessing his property very high. After all of that
was done and the day he went to the passport office in order to
get his clearance, his passport, and get his visa then he was
told that now he still had to go to the notary, Dr. Stege, and
had to deposit a voluntary fee to promote the emigration of the
Jews, and that is where he paid the balance, and then left with
his personal satchel, with his little valise.”
Speaking of the “asocial” persons, Dr. Thierack, on 5 January 1943, at
a mass meeting of the NSDAP, stated (_NG-275, Pros. Ex. 25_):
“I have seen to it that these people shall no longer be employed
for any sort of work that is not dangerous. The most dangerous
tasks are just the thing that is for them. Now, today, when
thousands of these people are carrying supplies in the far north
or building roads, I cannot help it if some of them die, but at
least they are of some use.”
The Roman Catholic chaplain at Amberg prison stated under oath that
a large proportion of the inmates of that prison were Poles who
had been sentenced under the “Poles’ Act.” Many of them died from
undernourishment. They were forced to eat potato peelings and hunt
through rubbish heaps for eatable refuse. From this prison “asocial
elements” were picked out and sent in batches to the Mauthausen
concentration camp. All of the first batch was said to have perished.
Among the prisoners were Jews who had been sentenced for race pollution.
The witness Hecker stated under oath that after Thierack’s “doubtful
decree” concerning the transfer of Jews, Poles, and gypsies, prisoners
in protective custody, and asocial elements from the justice prisons to
the RSHA in the autumn of 1942, the Jews as a whole were immediately
handed over. The work was carried out by Department V of the Ministry
of Justice. Lists were prepared monthly and sent to Minister Thierack
through the chief of the department.
On 22 October 1942 a directive (_648-PS, Pros. Ex. 264_) under
the letterhead of the Reich Minister of Justice was issued to various
prosecuting officers in which it was stated that “by agreement with
the Reich Leader SS, lawfully sentenced prisoners confined in penal
institutions will be transferred to the custody of the Reich Leader
SS.” Those designated for transfer to the SS included “Jews, men and
women, detained under arrest, protective custody, or in the workhouse;
* * * and Poles, residing in the former Polish state territory on 1
September 1939, men and women, sentenced to penal camps or subsequently
turned over for penal execution, if sentence is above 3 years, * *
*. With completion of the transfer to the police, the penal term is
considered interrupted. Transfer to the police is to be reported to
the penal authority and in cases of custody to the superior executive
authority, with the information that the interruption of the penal term
has been ordered by the Reich Ministry of Justice.” The directive is
signed “Dr. Crohne.”
A secret directive dated Berlin, 5 November 1942, was issued to the
heads of the SS and to the police services, in which it was stated
(_L-316, Pros. Ex. 265_):
“Re: Jurisdiction over Poles and eastern nationals.
“I. The Reich Leader SS has come to an arrangement with the
Reich Minister of Justice Thierack whereby the justice waives
the execution of the usual penal procedure against Poles and
eastern nationals. These persons of alien race are in future to
be handed over to the police. Jews and gypsies are to be treated
in the same way. This agreement has been approved by the Fuehrer.
“II. This agreement is based on the following considerations:
Poles and eastern nationals are alien and racially inferior
people living in the German Reich territory.”
The order continues:
“Such considerations which may be right for adjudicating a
punishable offense committed by a German are however wrong for
adjudicating a punishable offense committed by a person of alien
race. * * * As a result of this, the administration of penal law
for persons of alien race must be transferred from the hands of
the administrators of justice into the hands of the police.”
On 24 September 1942 the defendant Joel prepared a secret report
concerning the Reich Marshal’s plans for action in the Occupied Eastern
Territories. The report states that “the Reich Marshal is looking for
daring fellows who will be employed in the East for special purposes
and who will be able to carry out tasks of creating confusion behind
the lines.” The suggestion was that “poachers” and “fanatical members
of smuggling gangs who take part in gun battles on the frontiers,”
should be employed for this purpose. A copy of the report was sent to
State Secretary Rothenberger for his attention and was submitted in
connection with a proposed conference to be held on 9 October 1942.
Minutes of a conference of 9 October 1942, signed by Dr. Crohne,
incorporate the substance of Joel’s report, and state that the poachers
have already been turned over to the Reich Leader SS for special
duties. The report recommends that the district attorneys be given the
task of obtaining the convicts for this special service, and provides
further (_662-PS, Pros. Ex. 263_):
“_Delivery of asocial convicts._--Persons in penal
institutions designated as asocial persons by judicial decision
are to be turned over to the Reich Leader SS.
“1. _Persons in custody for reasons of security._--Persons
in custody for reasons of security who are in German penal
institutions will be put at the disposal of the Reich Leader SS.
The execution of sentence will be regarded as interrupted by the
delivery. * * *
“_b._ Whether women are also to be delivered is still
doubtful. * * * In this regard it will have to be a fundamental
point from the beginning that in the case of female Poles, Jews,
and gypsies no doubt about the delivery can exist.
“_c._ Foreigners are not affected. Poles, Russians,
Ukrainians, Jews, and gypsies do not rank as foreigners. * * *.
“2. _Jews, gypsies, Russians, and Ukrainians_ will be
delivered to the Reich Leader SS without exception.
“3. _Poles._--Ethnic Poles who are subject to the Polish
criminal law regulations, or have been delivered to the Polish
penal authorities, and who have more than 3 years’ sentence to
serve, will be delivered to the Reich Leader SS.
“Poles with smaller sentences will remain in the custody of
the prison system. After serving their sentences they will be
reported by name to the police just the same.”
It will be observed that the decisions concerning special treatment
for Poles and Jews which were reached at this conference of 9 October
1942 antedate by almost 9 months the enactment of the 13th regulation
concerning the Reich Citizenship Law of 1 July 1943 which provided
“that criminal actions committed by Jews shall be punished by the
police.”
On 1 April 1943 a letter from the Reich Ministry of Justice to the
public prosecutors of the courts of appeal and others stated that the
“Reich Security Office has directed by the decree of 11 March 1943 as
follows:
“_a._ Jews, who in accordance with number VI of the guiding
principles, are released from a penal institution, are to be
taken by the State police (chief) office competent for the
district in which the penal institution is located, for the rest
of their lives to the concentration camps Auschwitz or Lublin
in accordance with the regulations for protective custody that
have been issued. The same applies to Jews who in the future are
released from a penal institution after serving a sentence of
confinement.
“_b._ Poles, who in accordance with number VI of the
guiding principles, are released from a penal institution, are
to be taken by the State police (chief) office competent for
the district in which the penal institution is located, for the
duration of the war to a concentration camp in accordance with
the regulations on protective custody that have been issued.
“The same applies in the future to Poles who after serving a
term of imprisonment of more than 6 months are to be discharged
by a penal institution.”
It was stated that the ruling replaces previous orders. The instrument
is stamped “Reich Ministry of Justice” and is signed by Dr. Eichler.
As a crowning example of fanatical imbecility, we cite the following
document issued in April 1943 which was sent to the desk of the
defendant Rothenberger for his attention and was initialed by him
(_NG-1656, Pros. Ex. 535_):
“The Reich Minister of Justice
“Information for the Fuehrer
“1943 No.
“After the birth of her child a full-blooded Jewess sold her
mother’s milk to a pediatrician and concealed that she was a
Jewess. With this milk babies of German blood were fed in a
nursing home for children. The accused will be charged with
deception. The buyers of the milk have suffered damage, for
mother’s milk from a Jewess cannot be regarded as food for
German children. The impudent behavior of the accused is an
insult as well. Relevant charges, however, have not been applied
for, so that the parents, who are unaware of the true facts,
need not subsequently be worried.
“I shall discuss with the Reich health leader the
racial-hygienic aspect of the case.
“Berlin, April 1943”.
The witness Lammers, former Chief of the Reich Chancellery, testified
as follows:[663]
“Q. * * * Now, you answered Dr. Kubuschok that the subject of
sterilization of half-Jews was an alternative to their being
moved to the East and that it had been raised by half-Jews
themselves in 1942 or prior thereto.”
“A. Yes. I said so.”
He testified further that the half-Jews were not subject to any
compulsion. He was apparently of the opinion that a person was a free
agent if he had a choice between sterilization and deportation to a
concentration camp.
It will be recalled that the law of 4 December 1941 against Poles
and Jews applied to the “Incorporated Eastern Territories.” Those
territories were seized in the course of criminal aggressive war, but
aside from the fact it is clear, as we have indicated, _supra_,
that the purported annexation was premature and invalid under the laws
and customs of war. The so-called annexed territories in Poland were
in reality nothing more than territory under belligerent occupation
of the military forces of Germany. The extension to and application
in these territories of the discriminatory law against Poles and Jews
was in furtherance of the avowed purpose of racial persecution and
extermination. In the passing and enforcement of that law the occupying
power in our opinion violated the provisions of the Hague Convention
from which we quote:
“Until a more complete code of the laws of war has been issued,
the high contracting parties deem it expedient to declare that,
in cases not included in the regulations adopted by them, the
inhabitants and the belligerents remain under the protection and
the rule of the principles of the law of nations, as they result
from the usages established among civilized peoples, from the
laws of humanity, and the dictates of the public conscience.”
Other relevant portions are as follows:
“_Article 43._--The authority of the legitimate power
having in fact passed into the hands of the occupant, the latter
shall take all the measures in his power to restore, and insure,
as far as possible, public order and safety, while respecting,
unless absolutely prevented, the laws in force in the country.
“_Article 46._--Family honor and rights, the lives of
persons, and private property, as well as religious convictions
and practice, must be respected. Private property cannot be
confiscated.” (_Hague Convention No. IV of 18 October 1907_
36 Stat. 2277; Treaty Series No. 539; Mallory Treaties, Vol. 2,
page 2269.)
The prosecutions which were proposed by Lautz cannot be justified
upon any honest claim of military necessity. As a lawyer of ability,
he must have known that the proposed procedure was in violation of
international law.
Although the authorities are not in accord as to the proper
construction of article 23h of the regulations annexed to the Hague
Convention of 1907, we are of the opinion that the introduction and
enforcement of the law against Poles and Jews in occupied Poland
resulted in a violation of that provision which is as follows:
“It is forbidden to declare abolished, suspended, or
inadmissible in a court of law the right and actions of the
nationals of the hostile party.”[664]
The evidence discloses that the transfer of persons to concentration
camps was done even before the war and on direct orders of Hitler. Dr.
Lammers, Chief of the Reich Chancellery, on 8 August 1939, notified the
Reich Minister of Justice that “the Fuehrer has given an order that all
dispensable persons in security detention are to be put at the disposal
of the Reich Leader SS immediately.” The same procedure was employed as
to persons who had never been convicted.
On 24 January 1939, a conference was held at which reports were
received from eight different court districts. The subject was
“Protective Custody after Serving Term of Imprisonment, after
Acquittal, after Release from Imprisonment on Remand.” Among the cases
reported were those of defendants who were taken into custody by the
police in the court room immediately after their acquittal. Others were
taken by the police in cases where there had been a refusal to issue a
warrant of arrest. The report on the Hamburg situation by the defendant
Rothenberger states that the number of persons taken into protective
custody has increased. Rothenberger reports that in six cases Jewish
women had been taken into protective custody because of sexual
intercourse with Aryans. He quotes the State Police file as follows:
“1. Protective custody, ‘to make the punishment finally
effective’ * * *.
“2. Protective custody, ‘to make the served sentences still more
effective’ * * *.
“3. Protective custody, ‘because of the big number of previous
convictions’.
“4. Protective custody ‘to prevent prejudicing the course of
justice through the interference of lawyers as defense counsel’.”
The report on the conference ends as follows:
“The Minister concludes the discussion by indicating that it is
to be the task of the chief presidents to see that arrests in
the court room by the State Police are avoided, and recommends
for the rest to maintain the connection with the State Police.”
The report is signed by the defendant Klemm.
Former defendant Engert as vice president of the People’s Court, and
Thierack, the president of the People’s Court, protested in July
and August 1940 against the trial of minor cases in the People’s
Court as not being compatible with the dignity of the tribunal and
suggested that the defendants in such cases should be transferred to a
concentration camp. As Thierack put it--
“However right it is to exterminate harshly and uproot all the
seeds of insurrection, as for example we see them in Bohemia and
Moravia, it is wrong for every follower, even the smallest, to
be given the honor of appearing for trial and being judged for
high treason before a People’s Court or, failing that, before
an appellate court. In order to deal with these small cases and
even with the smallest, the culprits should surely be shown
that German sovereignty will not put up with their behavior
and that it will take action accordingly. But that can also be
done in a different way and I think in a more advantageous one,
than through the tedious and also very expensive and ponderous
channels of court procedure. I have therefore no objection
whatsoever, if all the small hangers-on who are somehow
connected with the high treason plans which have been woven by
others are brought to their senses by being transferred to a
concentration camp for some time.”
As early as 29 January 1941 the senior public prosecutor at Hamm wrote
to the Reich Minister of Justice, for the attention of State Secretary
Schlegelberger (_NG-685, Pros. Ex. 259_):
“Upon inquiry, the Reich Trustee for Labor for the economic
territory of Westphalia-Lower Rhine has informed me that ‘in
accordance with an agreement between the Reich Minister for
Labor and the Reich Leader SS as Chief of the German Police,
breach of work contracts by Poles are to be punished by the
Secret State Police with protective custody or concentration
camps. The meaning of this step’--so writes this Reich
trustee--‘is that in the case of Poles the strictest measures
are to be taken at once * * *’. For this reason we made it a
point in my office to transfer the cases involving breaches
of work contracts by Polish civilian workers, to the Gestapo
(Secret State Police) for further action.”
The same letter informs the defendant Schlegelberger of uncertainty
which has arisen in the treatment of Polish civilians because in some
cases the courts would sentence to 2 or 3 years imprisonment while the
State Police may pronounce the death sentence for the same crime.
While the part played by the Ministry of Justice in the extermination
of Poles and Jews was small compared to the mass extermination of
millions by the SS and Gestapo in concentration camps, nevertheless the
courts contributed greatly to the “final solution” of the problem. From
a secret report from the office of the Reich Minister of Justice to
the judges and prosecutors, including the defendant Lautz, it appears
that 189 persons were sentenced under the law for the protection of
German blood and honor in 1941, and 109 in 1942. In the year 1942,
61,836 persons were convicted under the law against Poles and Jews.
This figure includes persons convicted in the Incorporated Eastern
Territories, and also convictions for crimes committed in “other
districts of the German Reich by Jews and Poles who on 1 September
1939 had their residence or permanent place of abode in territory of
the former Polish state.” These figures, of course, do not include any
cases in which Jews were convicted of other crimes in which the law of
4 December 1941 was not involved.
The defendants contend that they were unaware of the atrocities
committed by the Gestapo and in concentration camps. This contention
is subject to serious question. Dr. Behl testified that he considered
it impossible that anyone, particularly in Berlin, should have been
ignorant of the brutalities of the SS and the Gestapo. He said: “In
Berlin it would have been hardly possible for anybody not to know about
it, and certainly not for anybody who was a lawyer and who dealt with
the administration of justice.” He testified specifically that he could
not imagine that any person in the Ministry of Justice, or in the Party
Chancellery, or as a practicing attorney or a judge of a Special (or)
People’s Court could be in ignorance of the facts of common knowledge
concerning the treatment of prisoners in concentration camps. It has
been repeatedly urged by and in behalf of various defendants that they
remained in the Ministry of Justice because they feared that if they
should retire, control of the matters pertaining to the Ministry of
Justice would be transferred to Himmler and the Gestapo. In short, they
claim that they were withstanding the evil encroachments of Himmler
upon the justice administration, and yet we are asked to believe that
they were ignorant of the character of the forces which they say they
were opposing. We concur in the finding of the first Tribunal in the
case of United States et al. _vs._ Goering, et al., concerning the
use of concentration camps. We quote:
“Their original purpose was to imprison without trial all those
persons who were opposed to the government, or who were in any
way obnoxious to German authority. With the aid of a secret
police force, this practice was widely extended, and in course
of time concentration camps became places of organized and
systematic murder where millions of people were destroyed.
* * * * * * *
“A certain number of the concentration camps were equipped with
gas chambers for the wholesale destruction of the inmates, and
with furnaces for the burning of the bodies. Some of them were
in fact used for the extermination of Jews as part of the ‘final
solution’ of the Jewish problem.
* * * * * * *
“In Poland and the Soviet Union these crimes were part of a
plan to get rid of whole native populations by expulsion and
annihilation, in order that their territory could be used for
colonization by Germans. Hitler had written in ‘Mein Kampf’ on
these lines, and the plan was clearly stated by Himmler in July
1942, when he wrote:
“‘It is not our task to Germanize the East in the old sense,
that is to teach the people there the German language and the
German law, but to see to it that only people of purely Germanic
blood live in the East’.”[665]
A large proportion of all of the Jews in Germany were transported to
the East. Millions of persons disappeared from Germany and the occupied
territory without a trace. They were herded into concentration camps
within and without Germany. Thousands of soldiers and members of
the Gestapo and SS must have been instrumental in the processes of
deportation, torture, and extermination. The mere task of disposal of
mountainous piles of corpses (evidence of which we have seen) became
a serious problem and the subject of disagreement between the various
organizations involved. The thousands of Germans who took part in the
atrocities must have returned from time to time to their homes in the
Reich. The atrocities were of a magnitude unprecedented in the history
of the world. Are we to believe that no whisper reached the ears of
the public or of those officials who were most concerned? Did the
defendants think that the nationwide pogrom of November 1938 officially
directed from Berlin and Hitler’s announcement to the Reichstag
threatening the obliteration of the Jewish race in Europe were
unrelated? At least they cannot plead ignorance concerning the decrees
which were published in their official organ, “The Reichsgesetzblatt”.
Therefore, they knew that Jews were to be punished by the police in
Germany and in Bohemia and Moravia. They knew that the property of Jews
was confiscated on death of the owner. They knew that the law against
Poles and Jews had been extended to occupied territories, and they knew
that the Chief of the Security Police was the official authorized to
determine whether or not Jewish property was subject to confiscation.
They could hardly be ignorant of the fact that the infamous law
against Poles and Jews of 4 December 1941 directed the Reich Minister
of Justice himself, together with the Minister of the Interior, to
issue legal and administrative regulations for “implementation of the
decree”. They read _The Stuermer_. They listened to the radio.
They received and sent directives. They heard and delivered lectures.
This Tribunal is not so gullible as to believe these defendants so
stupid that they did not know what was going on. One man can keep a
secret, two men may, but thousands, never.
The evidence conclusively establishes the adoption and application of
systematic government-organized and approved procedures amounting to
atrocities and offenses of the kind made punishable by C. C. Law 10
and committed against “populations” and amounting to persecution on
racial grounds. These procedures when carried out in occupied territory
constituted war crimes and crimes against humanity. When enforced in
the Alt Reich against German nationals they constituted crimes against
humanity.
The pattern and plan of racial persecution has been made clear. General
knowledge of the broad outlines thereof in all its immensity has been
brought home to the defendants. The remaining question is whether or
not the evidence proves beyond a reasonable doubt in the case of the
individual defendants that they each consciously participated in the
plan or took a consenting part therein.
_THE DEFENDANT SCHLEGELBERGER_
The defendant Franz Schlegelberger was born on 23 October 1875 in
Koenigsberg. He received the degree of doctor of law at the University
of Leipzig in 1899 and passed the higher state law examination in 1901.
He is the author of several law books. His first employment was as an
assistant judge at the local court in Koenigsberg. In 1904 he became
judge at the district court at Lyck. In 1908 he was appointed judge
of the local court in Berlin and in the fall of the same year was
appointed as an assistant judge of the Berlin Court of Appeals. He was
then appointed councillor of the Berlin Court of Appeals in 1914, where
he worked until 1918. During the First World War, on 1 April 1918 he
became an assistant to the Reich Board of Justice. On 1 October 1918
he was appointed Privy Government Councillor and department chief. In
1927 he was appointed ministerial director in the Reich Ministry of
Justice. On 10 October 1931 he was appointed Secretary of State in the
Reich Ministry of Justice under Minister of Justice Guertner, which
position he held until Guertner’s death. Upon Guertner’s death on 29
January 1941 Schlegelberger was put in charge of the Reich Ministry of
Justice as administrative Secretary of State. When Thierack became the
new Minister of Justice on 20 August 1942, Schlegelberger resigned from
the Ministry.
In 1938 Hitler ordered Schlegelberger to join the NSDAP. Schlegelberger
testified that he made no use of the Party, that he never attended
a Party meeting, that none of his family belonged to the Party, and
that Party attitudes often rendered his position difficult. However,
upon his retirement as Acting Minister of Justice on 20 August 1942,
Schlegelberger received a letter of appreciation from Hitler together
with a gift of 100,000 RM.
Later in 1944 Hitler gave Schlegelberger the special privilege to
use the 100,000 RM to purchase a farm, which under the rule then
prevailing could have been purchased only by an expert agriculturist.
Schlegelberger states that the 100,000 RM were on deposit in a Berlin
German bank to his account when the collapse came. Thus, it is shown
that Hitler and Schlegelberger were not too objectionable to each
other. These transactions also show that Hitler was at least attempting
to reward Schlegelberger for good and faithful service rendered in the
performance of some of which Schlegelberger committed both war crimes
and crimes against humanity as charged in the indictment.
We have already adverted to his speech at the University of Rostock on
10 March 1936, on the subject, “A Nation Beholds Its Rightful Law.” In
this speech Schlegelberger declared:
“In the sphere of criminal law the road to a creation of justice
in harmony with the moral concepts of the new Reich has been
opened up by a new wording of section 2 of the criminal code,
whereby a person is also (to) be punished even if his deed
is not punishable according to the law, but if he deserves
punishment in accordance with the basic concepts of criminal
law and the sound instincts of the people. This new definition
became necessary because of the rigidity of the norm in force
hitherto.”
As amended, section 2 remained in effect until repealed by Law No.
11 of the Allied Control Council. The term “the sound people’s
sentiment” as used in amended section 2 has been the subject of much
discussion and difference of view as to both its proper translation
and interpretation. We regard the statute as furnishing no objective
standards “by which the people’s sound sentiment may be measured”. In
application and in fact this expression became the “healthy instincts”
of Hitler and his coconspirators.
What has been said with regard to the amendment to section 2 of the
criminal code is equally true of the amendment of section 170a of the
code by the decree of Hitler of 28 June 1935, which is also signed by
Minister Guertner and which provides:
“If an act deserves punishment according to the common sense
of the people but is not declared punishable in the code, the
prosecution must investigate whether the underlying principle of
a penal law can be applied to the act and whether justice can
be helped to triumph by the proper application of this penal
law.”[666]
This new conception of criminal law was a definite encroachment upon
the rights of the individual citizen because it subjected him to the
arbitrary opinion of the judge as to what constituted an offense. It
destroyed the feeling of legal security and created an atmosphere of
terrorism. This principle of treating crimes by analogy provided an
expedient instrumentality for the enforcement of Nazi principles in
the occupied countries. German criminal law was therefore introduced
in the incorporated areas and also in the nonincorporated territories,
and German criminal law was thereafter applied by German courts in the
trial of inhabitants of occupied countries though the inhabitants of
those countries could have no possible conception of the acts which
would constitute criminal offenses.
In the earlier portions of this opinion we have repeatedly referred to
the actions of the defendant Schlegelberger. Repetition would serve
no good purpose. By way of summary we may say that Schlegelberger
supported the pretension of Hitler in his assumption of power to deal
with life and death in disregard of even the pretense of judicial
process. By his exhortations and directives, Schlegelberger contributed
to the destruction of judicial independence. It was his signature
on the decree of 7 February 1942 which imposed upon the Ministry of
Justice and the courts the burden of the prosecution, trial, and
disposal of the victims of Hitler’s Night and Fog. For this he must be
charged with primary responsibility.
He was guilty of instituting and supporting procedures for the
wholesale persecution of Jews and Poles. Concerning Jews, his ideas
were less brutal than those of his associates, but they can scarcely
be called humane. When the “final solution of the Jewish question”
was under discussion, the question arose as to the disposition of
half-Jews. The deportation of full Jews to the East was then in full
swing throughout Germany. Schlegelberger was unwilling to extend the
system to half-Jews. He therefore proposed to Reich Minister Lammers,
by secret letter on 5 April 1942 (_4055-PS, Pros. Ex. 401_):
“The measures for the final solution of the Jewish question
should extend only to full Jews and descendants of mixed
marriages of the first degree, but should not apply to
descendants of mixed marriages of the second degree. [First
degree presumably those with two non-Aryan grandparents, and
second degree with only one.]
“With regard to the treatment of Jewish descendants of mixed
marriages of the first degree, I agree with the conception of
the Reich Minister of the Interior which he expressed in his
letter of 16 February 1942, to the effect that the prevention
of propagation of these descendants of mixed marriages is to be
preferred to their being thrown in with the Jews and evacuated.
It follows therefrom that the evacuation of those half-Jews
who are no more capable of propagation is obviated from the
beginning. There is no national interest in dissolving the
marriages between such half-Jews and a full-blooded German.
“Those half-Jews who are capable of propagation should be given
the choice to submit to sterilization or to be evacuated in the
same manner as Jews.”
Schlegelberger knew of the pending procedures for the evacuation of
Jews and acquiesced in them. As to half-Jews his only suggestion was
that they be given the free choice of either one of the impaling horns
of a dilemma. On 17 April 1941 Schlegelberger wrote to Lammers as
follows (_NG-144, Pros. Ex. 199_):
“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 attorneys general 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.”
The draft of a proposed ordinance “concerning the administration
of justice regarding Poles and Jews in the Incorporated Eastern
Territories” was attached to his letter and is in evidence. A
comparison of its phraseology with the phraseology contained in the
notorious law against Poles and Jews of 4 December 1941 discloses
beyond question that Schlegelberger’s draft constituted the basis
on which, with certain modifications and changes, the law against
Poles and Jews was enacted. In this respect he was not only guilty of
participation in the racial persecution of Poles and Jews; he was also
guilty of violation of the laws and customs of war by establishing that
legislation in the occupied territories of the East. The extension of
this type of law into occupied territories was in direct violation
of the limitations imposed by the Hague Convention, which we have
previously cited.
It is of interest to note that on 31 January 1942 Schlegelberger
issued a decree providing that the provisions of the law against Poles
and Jews “will be equally applicable with the consent of the public
prosecutor to offenses committed before the decree came into force”.
We doubt if the defendant would contend that the extension of this
discriminatory and retroactive law into occupied territory was based on
military necessity.
Schlegelberger divorced his inclinations from his conduct. He
disapproved “of the revision of sentences” by the police, yet he
personally ordered the murder of the Jew Luftgas on the request of
Hitler, and assured the Fuehrer that he would, himself, take action if
the Fuehrer would inform him of other sentences which were disapproved.
Schlegelberger’s attitude toward atrocities committed by the police
must be inferred from his conduct. A milking-hand, Bloedling, was
sentenced to death in October 1940, and during the trial he insisted
his purported confession had been obtained as a result of beatings
imposed upon him by the police officer Klinzmann. A courageous judge
tried Klinzmann and convicted him of brutality and sentenced him to
a few months imprisonment. Himmler protested against the sentence of
Klinzmann and stated that he was going “to take the action of the
Hauptwachtmeister of the police Klinzmann as an occasion to express
gratitude for his farsighted conduct which was only beneficial to the
community.” He said further:
“I must reward his action because otherwise the joy of serving
in the police would be destroyed by such verdicts. But finally
K. has to be rehabilitated in public because his being sentenced
by a court is known in public.”
On 10 December 1941 Schlegelberger wrote to the Chief of the Reich
Chancellery stating that he was unable to understand the sentence
passed against Klinzmann. We quote:
“No sooner had the verdict passed on Klinzmann become known
here, orders were for this reason given to the effect that the
sentence in case of its validation should not be carried out
for the time being. Instead, reports concerning the granting of
a pardon should be made as soon as possible. In the meantime,
however, the sentence passed on Klinzmann became valid, by
decision of the Reich [Supreme] Court of 24 November 1941 which
abandoned the procedure of revision as apparently unfounded.
Taking into regard also the opinion you expressed on the
sentence, Sir, I now ordered the remission of the sentence and
of the costs of proceedings by way of pardon as well as the
striking out of the penalty note in the criminal records.”
On 24 December 1941 Schlegelberger wrote to Lammers that he had quashed
the proceedings. In February 1942 Himmler wrote expressing appreciation
of the efforts in quashing the proceedings against Klinzmann and stated
that he had since promoted him to Meister of the municipal police.
Schlegelberger presents an interesting defense, which is also claimed
in some measure by most of the defendants. He asserts that the
administration of justice was under persistent assault by Himmler and
other advocates of the police state. This is true. He contends that
if the functions of the administration of justice were usurped by the
lawless forces under Hitler and Himmler, the last state of the nation
would be worse than the first. He feared that if he were to resign,
a worse man would take his place. As the event proved, there is much
truth in this also. Under Thierack the police did usurp the functions
of the administration of justice and murdered untold thousands of Jews
and political prisoners. Upon analysis this plausible claim of the
defense squares neither with the truth, logic, or the circumstances.
The evidence conclusively shows that in order to maintain the Ministry
of Justice in the good graces of Hitler and to prevent its utter
defeat by Himmler’s police, Schlegelberger and the other defendants
who joined in this claim of justification took over the dirty work
which the leaders of the State demanded, and employed the Ministry
of Justice as a means for exterminating the Jewish and Polish
populations, terrorizing the inhabitants of occupied countries, and
wiping out political opposition at home. That their program of racial
extermination under the guise of law failed to attain the proportions
which were reached by the pogroms, deportations, and mass murders by
the police is cold comfort to the survivors of the “judicial” process
and constitutes a poor excuse before this Tribunal. The prostitution
of a judicial system for the accomplishment of criminal ends involves
an element of evil to the State which is not found in frank atrocities
which do not sully judicial robes.
Schlegelberger resigned. The cruelties of the system which he had
helped to develop were too much for him, but he resigned too late.
The damage was done. If the judiciary could slay their thousands, why
couldn’t the police slay their tens of thousands? The consequences
which Schlegelberger feared were realized. The police, aided by
Thierack, prevailed. Schlegelberger had failed. His hesitant injustices
no longer satisfied the urgent demands of the hour. He retired under
fire. In spite of all that he had done he still bore an unmerited
reputation as the last of the German jurists and so Hitler gave
him his blessing and 100,000 RM as a parting gift. We are under no
misapprehension. Schlegelberger is a tragic character. He loved the
life of an intellect, the work of the scholar. We believe that he
loathed the evil that he did, but he sold that intellect and that
scholarship to Hitler for a mess of political pottage and for the vain
hope of personal security. He is guilty under counts two and three of
the indictment.
_THE DEFENDANT KLEMM_
Herbert Klemm, formerly State Secretary of the Reich Ministry of
Justice, was born in Leipzig on 15 May 1903. After normal schooling,
he passed his first legal state examination in 1925, his second legal
state examination in 1929. From 1929 to 1933, he was court assessor
of the prosecution authority of Dresden. From March 1933 to March
1935 he was the personal Referent and adjutant of Thierack, Minister
of Justice, Saxony. In 1935, at the time of the centralization of the
administration of justice, he was transferred to the Reich Ministry
of Justice where he remained until he was mobilized for war service
on 23 June 1940. On 20 April 1939 he was promoted to the office
of Ministerialrat. In July of 1940 he was assigned to the Reich
Commissioner for the Occupied Dutch Territories, upon the request of
the Plenipotentiary for Occupied Dutch Territories. On 17 March 1941 he
was transferred to the staff of the deputy of the Fuehrer, which later
became the Party Chancellery, in Munich. He remained with the Party
Chancellery until 4 January 1944, when he became state secretary of the
Reich Ministry of Justice under Thierack. He remained in this capacity
until the surrender.
Klemm’s Party connections were as follows: he applied for membership in
the NSDAP on 4 November 1930; his membership card, 405576, was received
1 January 1931. On 30 June 1933 he joined the SA; the highest rank
which he received in the SA was that of Oberfuehrer. When in Saxony he
was the legal advisor of the SA for Saxony and liaison officer between
the SA for Saxony and the Minister of Justice for Saxony. When he was
transferred to Berlin, he was the liaison officer between the Reich
Ministry of Justice and the SA Chief of Staff for Germany and the legal
advisor to the Chief of Staff of the SA for Germany.
He was a member of the National Socialist Jurists’ League from 1933.
In September of 1944 he was appointed deputy chief of the National
Socialist Jurists’ League by Thierack, who was at that time chief.
He received the Bronze Party Service decoration in 1941 and the Golden
Party decoration, the latter being conferred by Bormann in 1943.
During the time in which the defendant was in Saxony, he was a member
of the disciplinary court of the SA group which dealt with the purge of
the SA in connection with the Roehm Putsch.
A brief outline of the official activities of the defendant Klemm is
as follows: after transfer to Berlin in 1935, the defendant dealt with
acts against the State and Party and, later, the malicious acts law. In
this field prosecution could be ordered only by the Ministry of Justice
with the permission of the office of the deputy of the Fuehrer, which
later became the Party Chancellery.
It was during this period that the following circular, dated Berlin, 18
October 1937, and initialed by Klemm, was issued (_NG-310, Pros. Ex.
33_):
“1. Criminal procedures concerning more severe interrogations
by the Stapo will be dealt with centrally by Chief Prosecutor
Klemm. They are to be sent to the competent co-worker Prosecutor
Winkler.
“2. As far as reports concerning executions when escaping from
concentration camps, etc., suicides in K.Z. arrive, they shall
continue to be dealt with by the specialist competent for
the respective subject. The general consultant for political
criminal matters, however, is to be informed of the reports.
They are to be submitted to him once.”
The practice of more severe interrogations, according to the testimony
of Lautz, caused much worry to those concerned with the administration
of justice. By the term “more severe interrogations” is meant “third
degree” methods which Hitler authorized the police to use in cases
considered important for the safety of the State.
From July 1940 to March 1941, while Klemm was in Holland, he had
charge of both civil and penal law. The penal section in Holland was
for German citizens not in the army and Dutch who infringed on German
interests. He was also liaison officer between the commissioner general
for the administration of justice and secretary of the Dutch Ministry
of Justice at The Hague.
During this period there were published in the official gazette for
the occupied Dutch territories, in the year 1944,[667] decrees of
the Reich Commissioner of Occupied Dutch Territories, Seyss-Inquart,
pertaining to the registry of Jewish property, the confiscation of same
under certain circumstances, and for the transfer of Jewish property
to an official in the nature of an administrator. During this time a
letter was written by Tenkink, Secretary General of the Dutch Ministry
of Justice, to the Reich Commissioner of Holland, which shows the
defendant’s signature, informing the commissioner of excesses committed
against Jews in Holland.
During this period letters dated 24 and 30 September 1940, marked
“Secret,” and signed by the defendant, to the department for
legislation, Lange Vijverberg, with opinions and recommendations as to
the registration and confiscation of Jewish property in Holland, were
transmitted.
A letter dated 24 September 1940 contains the following statement:
“In my view it must be achieved with other means to eliminate
Jewish influence from such corporations. In the Reich, too,
it needed months of careful work to gradually extract Jewish
capital without disturbing the economy or to eliminate Jewish
influence altogether.”
The defendant Klemm was in the office of the deputy of the Fuehrer
and Party Chancellery from March 1941 to January 1944. The Party
Chancellery had to approve the drafts of decrees in connection
with national laws and ordinances and also was charged with the
responsibility for the approval of high official appointments. The
Party Chancellery was formed from what had originally been the office
of the deputy of the Fuehrer under Hess. It was the instrument of the
Party in matters of State and soon became virtually the instrument of
Bormann.
In the Party Chancellery Klemm was Chief of Group III-C. This group had
the following functions, as stated by the defendant:
“First, it had to deal with laws and drafts and decrees of the
Reich Ministry of Justice, unless for reasons of their subject
they were dealt with by another group, because that group
appeared to be competent. Secondly, penal matters based on the
law against malicious acts, as far as on the basis of legal
provisions the approval of the Chief of the Party Chancellery
was required for the prosecution. Thirdly, complaints from
Party offices or individuals against decision by the courts.
Fourth, complaints from the administration of justice against
interference by Party offices into pending trials. Fifth, to
observe especially civil and penal cases which concerned the
Party. Sixth, matters of legal reform, and seventh, expert
opinions in the field of the Party law.”
Among his activities, and in conference with officials from the
Ministry of Justice, he made suggestions for strengthening the powers
of the police.
At another conference with officials from the Ministry of Justice
concerning the political evaluations of persons in connection with
legal procedure, he represented the standpoint of the Party that Party
evaluations should be accepted by the courts.
During the time that Klemm was Chief of Group III-C, the act providing
for the retroactive application of law concerning treason was enacted
and applied to the annexed eastern territories. It was claimed by the
defendant that this was based upon a decision of Bormann.
At this time legislation depriving the Jews of legal rights was also
contemplated; drafts of the proposals made were dealt with, and the
letter of 9 September 1942, prepared in Department III, was dispatched.
Also as part of the activities of Group III-C under Klemm, the proposal
of the defendant Schlegelberger regarding confirmation of sentences
of penal cases by the president of the district court of appeals was
disposed of and the defendant claims he influenced Bormann to oppose
this recommendation of the Ministry of Justice.
During this period a circular entitled, “The New Organization of
Justice,” signed by Bormann, and which the defendant Klemm claims was
intended to free the Ministry of Justice from Party criticism, states
as follows:
“Hereby is further required that you report to me all complaints
which you have to bring in matters of justice, so that I can
clear up the situation immediately by confidential negotiations
with the Reich Minister of Justice. Should it, after a
discussion with the Reich Minister of Justice, seem absolutely
necessary that a problem is brought to the Fuehrer, then this
will be taken care of by Reich Minister Dr. Lammers and myself.”
During this period Klemm wrote the Minister of Justice as follows:
“Your letter of 5 August 1943 is agreed to. No objections are
raised to applying the German Criminal Code for Juveniles to
foreign juveniles, unless they are Jewish, Polish, or gypsies.
Regarding juvenile gypsies and those of mixed gypsy descent,
you are asked to see to it that, simultaneously with the coming
into force of the new law concerning Reich juveniles, a special
regulation will come into effect which will prevent the German
Criminal Code for Juveniles from applying to gypsies and those
of gypsy descent merely because a definite regulation is
lacking.”
The defendant states that during this period Bormann called him on the
telephone and inquired whether he knew Rothenberger and inquired about
Rothenberger. Also he later submitted to the defendant Klemm an inquiry
as to the background and qualifications of persons presumed to have
been possible appointees as Reich Minister of Justice. These included
Thierack, and Klemm states that his report to Bormann was favorable to
Thierack. These inquiries were made of the defendant in spite of the
fact that, according to his testimony, he had to deal only with matters
pertaining to the administration of justice, and these were definitely
personnel matters under another department of the Party Chancellery.
During this period he was the liaison officer between Thierack and the
Party Chancellery. As to this relationship, Klemm states:
“Thierack asked me in all matters concerning the justice
group of the Party Chancellery to come to him, that is to him
personally, immediately and not to discuss them with the various
Referents at the Ministry * * * and as I had worked in both
fields, the best thing for him to get acquainted with the matter
would be if I reported to him in person.”
With reference to Klemm’s duties as Under Secretary of State, the
following paragraph of a report of the conference of the department
chiefs, held 6 January 1944, outlines in part his duties in the
Ministry as follows (_NG-195, Pros. Ex. 45_):
“The Minister announced that from now on the Departments III,
IV, and V, too, would be placed under the control of the State
Secretary and hereby recalled the contrary regulation in office
routine, which was published on 27 August 1942, but added that
all death sentences must continue to be submitted to him. He
would request the State Secretary to be present when they were
submitted. Furthermore, all political and legal matters of
particular importance must be reported to him.”
Klemm maintains that his supervision of Departments III, IV, and V was
merely on paper. However, the testimony of Hecker does not bear this
out as regards Department V, nor does the testimony of Eggensperger.
During this period the decree against Poles and Jews was still being
enforced under the jurisdiction of the Ministry of Justice insofar as
any was left, outside the sphere of the Gestapo and the concentration
camps.
During this period the Ministry of Justice still dealt with Nacht und
Nebel cases. The defendant Klemm denies, in general, knowledge of NN
procedure. Fourteen exhibits have been introduced in this case showing
transactions concerning NN matters, subsequent to the time Klemm took
over the office of State Secretary. The defendant admits knowledge that
Nacht und Nebel prisoners were transferred from Essen to Silesia. He
admits refusal of spiritual care for NN prisoners by foreign clergymen.
He admits knowledge of a draft of a letter from Thierack to Bormann
to the effect that NN women who were not to be executed should be so
advised. He admits denying clemency to eight NN prisoners when he was
acting as deputy for Thierack. In the remaining 123 cases, clemency was
denied by Thierack when Klemm was presumably sitting in conference with
him.
Among the fourteen documents enumerated above is a report from the
defendant von Ammon, initialed by Klemm, relative to a trip concerning
NN matters. This report states (_NG-231, Pros. Ex. 332_):
“The Military Commander in Chief, France, is grateful for the
evidence which the military courts in occupied French territory
receive as a result of the activity of the general legal
authorities concerned with the prosecution and trial of NN cases
in occupied French territory.”
Klemm explains this document by stating that he merely approved the
trip. With the above explanations, Klemm’s counsel stated:
“These are the only documents which the prosecution has
submitted against you as far as NN cases are concerned.”
In view of the fact that Klemm was State Secretary when these matters
were disposed of and, nominally at least, charged with supervision of
Department IV where they were handled, this conclusion is not one which
this Tribunal accepts.
With regard to clemency during the time the defendant was State
Secretary, Klemm is shown to have dealt with clemency matters as the
advisor of Thierack when he was present and as his deputy in his
absence. He states that personally he dealt only with clear cases and,
further, that in clear cases clemency had been disapproved by seven
agencies before it became a clear case. He states that clear cases were
legally incontestable.
His testimony that in clear cases seven agencies disapproved clemency
during the period when he was State Secretary, does not conform to the
testimony of the defendant Lautz or with Exhibit 279 which Lautz cites.
Lautz’ testimony on this point is as follows:
“The examination of these clemency pleas for their correctness
was no longer possible for the prosecutions in the majority of
cases. The prosecutors now had to restrict themselves to adding
the pleas to their reports without changing them. The time limit
laid down in the decree was, as a rule, not adhered to because
the offices at the People’s Court and the Reich prosecution were
so overburdened that it was impossible for them to submit the
files within the time limit set. Owing to that, occasionally
there was sufficient time to make further investigations in the
matter of the clemency plea. However, the opinion of the court,
the prison, and all other agencies was no longer heard. They had
been of importance before.” (_Tr. p. 5947._)
Moreover, what may constitute a legally incontestable case is subject
to considerable speculation. Presumably a case based upon a confession
would be legally incontestable. Certainly it can hardly be assumed that
the defendant Klemm was unaware of the practice of the Gestapo with
regard to obtaining confessions. He had dealt with this matter during
his early period with the department of justice. It is hardly credible
that he believed that the police methods which at an earlier time were
subject to some scrutiny by the Ministry of Justice, had become less
harsh because the Gestapo, in October of 1940, was placed beyond the
jurisdiction of law. He must have been aware that a prolific source of
clear cases based on confessions and, therefore, legally incontestable,
came to him from the obscurity of the torture chamber.
During the time Klemm was State Secretary, the plan of the leaders of
the Nazi state to inspire the lynching of Allied fliers by the people
of Germany was inaugurated, and during this period the matter of
execution of approximately 800 political prisoners, prior to evacuation
of the penitentiary at Sonnenburg, took place. These matters will be
dealt with more fully hereafter.
As heretofore pointed out in this opinion, the essential elements to
prove a defendant guilty under the indictment in this case are that
a defendant had knowledge of an offense charged in the indictment
and established by the evidence, and that he was connected with the
commission of that offense.
As to the matter of knowledge of the defendant Klemm, aside from the
sources of knowledge heretofore pointed out in this opinion in regard
to all of the defendants herein, certain other facts are significant.
The defendant’s sources of information were of a wide scope. He had
been the liaison officer between the administration of justice and the
SA in Saxony and the legal advisor of the chief of the SA for Saxony.
On transfer to Berlin, he acted in the same capacity with the SA main
office for the Third Reich and was the liaison officer between the
Ministry of Justice and the SA Main office. In Holland he was head of
the department of legal matters under Seyss-Inquart. He served with the
Office of the Deputy of the Fuehrer and Party Chancellery from March
1941 to January 1944. There he was in charge of Group III-C. He was
the friend of Klopfer in charge of Group III and, from the evidence,
a trusted lieutenant of Bormann. Finally, he was State Secretary under
Thierack, whom he had known since he was his adjutant and personal
Referent in Saxony. In Berlin he lived with Thierack for the period in
which he was State Secretary.
Klemm’s career under the Third Reich moved smoothly from comparative
insignificance to the position of State Secretary in the Ministry of
Justice. His ascent was marked by no serious differences as to Party
policies. He was close to both Bormann and Thierack and ascended by
their favor. Under the circumstances it is not credible that he was
ignorant of the policies and methods of these ruthless figures.
The defendant lays great stress on an order of Hitler as to secrecy
and states that in connection with this order he adhered strictly to
it; that he did not attempt to hear anything outside of his official
duties. Such orders as to secrecy were not confined to Germany during
the war; they were standard procedure in other countries and by no
means excluded knowledge of secret matters derived from normal human
contacts, particularly friends and acquaintances in the higher levels
of state affairs. Further, the confidential position held by the
defendant gave him a wide scope as to secret matters within the sphere
of his official duties. As State Secretary of the Ministry of Justice
and deputy of the minister in his absence, the defendant’s official
duties required knowledge of the higher spheres of State policy.
More specifically, Klemm knew of abuses in concentration camps. He knew
of the practice of severe interrogations. He knew of the persecution
and oppression of the Jews and Poles and gypsies. He must be assumed
to have known, from the evidence, the general basis of Nacht und Nebel
procedure under the Department of Justice. Therefore, it becomes
important to consider his connection with the carrying out of these
crimes alleged in the indictment and established by the evidence in
this case.
It is clear from the evidence, heretofore outlined in part, that when
the defendant Klemm was in Holland he knew of the persecution of Jews
and he was connected to some extent with that persecution.
While he was in the Party Chancellery he wrote the letter, heretofore
pointed out, denying the application of the German juvenile law to
Poles, Jews, and gypsies. This Tribunal does not construe that letter
as a legal opinion but as an expression of Party policy, submitted
through the Party Chancellery to the Ministry of Justice to the effect
that minors of the prescribed races must be subject to the merciless
provisions of the decree against Poles and Jews. The argument that
they were necessarily excluded because they were foreigners, and
that the German Juvenile Act contemplated entrance into the Hitler
Youth, and similar provisions applicable only to Germans has little
significance when the letter itself expressly states that there were
no objections to applying the German Criminal Code for juveniles to
foreign juveniles, unless they were Poles, Jews, or gypsies. Further,
it can hardly be construed as a legal opinion as to gypsies in view
of the statement therein made that a special regulation will come
into effect which will prevent the German Criminal Code for juveniles
from applying to gypsies and those of gypsy descent merely because a
definite regulation is lacking.
While in the Party Chancellery, Klemm took part in drafting the law to
make treason retroactive and applying it to annexed territories, and
this draft bears his signature.
As State Secretary he knew of the NN procedure and was connected
therewith, particularly as to the approximately 123 NN prisoners
sentenced to death who were denied clemency while he sat in conference
with Thierack, and in the eight cases where he denied clemency as
deputy for Thierack.
As State Secretary in the Ministry of Justice, he necessarily exercised
supervision over the enforcement of the decree against Poles and Jews
and dealt with clemency matters pertaining to cases tried under that
decree.
In connection with the defendant Klemm, two other transactions
constituting crimes charged in the indictment are of particular
significance. The first of these is charged under the second count
of the indictment as a war crime against all the defendants and,
particularly under paragraph 18 of the indictment, charging the
defendant Klemm with special responsibility and participation. This
pertains to the inciting of the German population to murder Allied
airmen forced down within the Reich.
Evidence of this plan of the leaders of the German State is found as
follows: First in the correspondence relative to the treatment of
so-called “enemy terrorist airmen”. As part of this correspondence
from the deputy chief of the operations staff of the armed forces,
entitled “Secret matter”, dated 6 June 1944, and signed by General
Warlimont,[668] the following sentence is significant:
“Lynch justice should be considered as being the rule.” Further, a
draft of a letter, dated Salzburg, 20 June 1944, to the Chief of the
High Command of the Armed Forces, apparently drawn by the Foreign
Office, contains this paragraph:
“The above considerations warrant the general conclusion that
the cases of lynching ought to be stressed in the course of
this action. If the action is carried out to such an extent * *
* the deterring of enemy airmen is actually achieved.”
In furtherance of this plan, Goebbel’s speech of 27 May 1944 is cited
and the letter from the Chief of the Party Chancellery, Fuehrer
Headquarters, 30 May 1944, marked “Secret--not for publication,” and
bearing the initials of Thierack, concerning “the people’s judgment
of Anglo-American murders,” signed by Bormann, is significant,
particularly the following paragraph:
“No police or criminal proceedings have been taken against the
citizens who have taken part herein.”
The distribution of this circular was as follows: “Reichsleiter,
Gauleiter, Verbaendefuehrer, Kreisleiter,”[669] and contains the
following note to all Gauleiter and Kreisleiter, initialed by Thierack
and signed by Friedrichs:
“The Chief of the Party Chancellery requests that the
Kreisleiter inform the Ortsgruppenleiter only verbally of the
contents of this circular.”
Exhibit 109 [635-PS, Pros. Ex. 109] is of even greater significance.
This is a letter from the Reich Minister and chief of the Reich
Chancellery, dated 4 June 1944, to the Reich Minister of Justice, Dr.
Thierack, headed, “Regards people’s justice against Anglo-American
murders”. This letter is quoted in its entirety:
“The Chief of the Party Chancellery informed me about the
enclosed transcript of a secret circular letter and requested me
likewise to inform you.
“I herewith comply with this and beg you to consider how far you
want to instruct the courts and district attorneys with it.
“The Reich Leader and Chief of the German Police has, as I was
further told by executive leader Bormann, so instructed his
police leaders.”
It contains a handwritten note, initialed by Thierack as a signature
and also initialed by Klemm, which reads as follows:
“Return note with the addition that such cases are to be
submitted to me for the purpose of their examination for
quashing in case proceedings are pending.”
In this adroit plan to encourage the murder of Allied airmen and escape
the responsibility, therefore, under the recognized rules of warfare,
the procedures adopted by the Ministry of Justice were unique and
worthy of the legal minds of those who dealt with the matter. As shown
in the affidavit of Pejlovec, a secret directive was sent out by the
Ministry of Justice calling for reports in cases of the lynching of
Allied airmen. This directive was interpreted by Pejlovec to the effect
that no prosecutions were contemplated.
The witness Dr. Gustav Mitzschke, Referent in the legislative
department, testified that he was instructed to call upon the State
Secretary, which he did, and received the following instructions:
“When you talk to General Public Prosecutor Helm at Munich,
please tell him that in cases where Allied fliers have been
killed or ill-treated, the police and any other agencies
concerned are to pass on the files to the prosecution office,
and that the prosecution as quickly as possible must make a
report to the minister and also forward the files.”
Helm issued a directive to the prosecutors under him. This directive
called for reports and files in such cases and stated that they were
necessary because sometimes other factors, such as robbery or the use
of Allied uniforms to cover the murder of Germans, had to be considered.
Klemm stated that Mitzschke was directed to inform Helm that reports
were to be given in all cases.
The witness Helm stated that the note in conformity with Mitzschke’s
instructions as to the reports to be made was written and sent
out, he thinks, on the same day of Mitzschke’s visit and, in his
cross-examination he states that he is sure it was not later than the
day after Mitzschke’s visit.
The witness Hans Hagemann, general public prosecutor at Duesseldorf,
testified that he was directed that in such cases a report had to be
made to the Ministry of Justice. He also verified the secret decree
sent out by the Minister of Justice.
The nature of the reports called for, in itself, is not considered by
this Tribunal of particular importance. Thierack had directed Klemm,
as shown above, to submit to him reports as to cases pending “for
quashing.” The procedure followed by the Ministry went beyond this in
that it required reports and the transmittal of files of cases where no
indictment had as yet been issued. The Ministry of Justice thus took
over, in substance, the disposition of these cases and the prosecution
throughout Germany was thereby restricted in its normal duty of filing
indictments against those who had murdered Allied airmen and were
criminals under German law. From the evidence in this case and from
sources of judicial information, this Tribunal knows of many instances
of the lynching of Allied airmen by the German population. No case has
been brought to the attention of this Tribunal where an indictment
was actually filed for such offenses. What reports and files were
submitted to the Ministry of Justice we do not know, but it is obvious
that such reports as were made were allowed to die in the archives of
the Ministry.
There is evidence as to one case pertaining to this matter. The
defendant Klemm in his testimony refers to it. Around the turn of the
year 1944–45 in Kranenburg, in the district of the court of appeals,
Duesseldorf, an SA leader had shot two captured paratroopers in cold
blood. Regarding this, Klemm stated:
“We prosecuted that case and even though the police, as well
as the Party offices, offered considerable resistance, these
discussions were advanced energetically. I do not know of the
final outcome.”
The evidence in this case, as shown by the testimony of Hagemann,
indicates that during September of 1944, at the time of the Allied
parachute attack on Arnhem two captured Canadian paratroopers were shot
by one Kluetgen while a Kreisleiter stood by and either permitted or
encouraged the shooting.
The witness Hagemann undertook to investigate the matter but was unable
to do so fully because a Kreisleiter could not be so examined if he
refused to testify. It was necessary if the Kreisleiter was to be
examined to have the approval of the Party Chancellery. An application
was made for such consent but it was never given. Hagemann stated that
he made a report over the telephone to the Ministry about the case.
He believed he spoke with the defendant Mettgenberg. Afterwards he
made a written report to the Ministry of Justice. He told the Ministry
that he needed their support to obtain permission for the Kreisleiter
to testify. He received written instructions to clear up the case
completely, but since no approval was received to interrogate the
Kreisleiter, he could not continue the proceedings. He stated, that
again and again he requested the Ministry to obtain permission for
him to examine the Kreisleiter. When asked whether he heard from the
Ministry regarding this authority, he stated that he had not.
Permission to examine the Kreisleiter not having been obtained, he
was never examined. Up to the time of the capitulation of Germany, no
indictment had been filed against Kluetgen. This apparently was the
prosecution and energetic action on the part of the Ministry of Justice
to which Klemm referred in his testimony. In many cases discussed
before this Tribunal, indictment, trial, and final execution were
certainly more expeditiously handled.
In this plan to incite the population to murder Allied airmen, the
part of the Ministry of Justice was, to some extent, a negative one.
However, neither its action in calling for a report on pending
cases for quashing, nor its action in calling for reports and files
pertaining to all such incidents, was negative. Certainly the net
effect of the procedure followed by the Ministry of Justice resulted in
the suppression of effective action in such cases, as was contemplated
in the letter from the Reich Ministry and Chief of the Reich
Chancellery to the Ministry of Justice.
The defendant Klemm was familiar with the entire correspondence on
this matter. He specifically directed the witness Mitzschke to obtain
reports. His own testimony shows that he knew of the failure to take
effective action in the case cited, and it is the judgment of this
Tribunal that he knowingly was connected with the part of the Ministry
of Justice in the suppression of the punishment of those persons who
participated in the murder of Allied airmen.
The second transaction of particular importance with regard to the
defendant Klemm is connected with the penitentiary at Sonnenburg. The
record in this case shows that in the latter part of January 1945 this
great penal institution under the Ministry of Justice was evacuated and
that prior thereto, between seven and eight hundred political prisoners
therein were shot by the Gestapo.
Klemm denies knowledge of this matter and states:
“From the documents in this case only, particularly from the
affidavit of Leppin, I found out that over 800 persons were shot
at Sonnenburg.”
He testified further that about the middle of January, Thierack had
told him that Himmler had subordinated the prisoners at Sonnenburg
to his own command and that as Minister of Justice of the Reich he,
Thierack, could no longer do anything in regard to this institution. He
testified further:
“It is not only my opinion but it was absolutely clear that at
that time that penal institution was exclusively under the order
of Himmler.”
He stated that he spoke to Hansen about the subject of Sonnenburg
after this conversation with Thierack as to the change in authority,
and that Hansen knew about such change. He testified further “that the
prisoners were turned over to the Gestapo, I only found out here in
this courtroom.”
As to what occurred in the Ministry of Justice with regard to the
evacuation of Sonnenburg, the testimony of Robert Hecker is important.
Hecker was the Referent in the department of justice in Department V of
Berlin. Hecker testified in substance as follows: that in discussions
with Hansen, the general public prosecutor for the Kammergericht in
Berlin and the official under the Ministry of Justice responsible
for certain matters in penal institutions, Hansen told him it might
be necessary to evacuate Sonnenburg and that preliminary discussions
had been carried on; that he, Hansen, had discussed the matter with
the State Secretary with regard to the measures to be taken, and he
had misgivings and suggested to Hecker that Hecker discuss the matter
with the State Secretary. Hecker further stated that when he was the
official on duty one night for the Minister of Justice, he received a
telephone call from the director at Sonnenburg to the effect that a
Russian break-through had taken place and asking for instructions; that
he thereupon called Thierack at his home and asked for instructions and
Thierack stated that the institution would be defended, and that the
authorities at the institution were so informed. As the break-through
did not then threaten the penitentiary, this order was not carried
out. Hecker testified that later the director of the prison asked what
measures he should take if the occasion should arise and that thereupon
he called the general public prosecutor at the Kammergericht as to what
instructions had been issued. The general public prosecutor was away at
that time but the Referent who was present informed him that according
to the instructions issued, the police were supposed to be informed
in the case of evacuations. He testified further that Eggensperger, a
Referent in Department V of the Ministry of Justice, who was on duty
the night of the evacuation of Sonnenburg, had informed him the next
morning that the prison had been evacuated; that Eggensperger told
him that Hansen had called the night before, stating that the action
of turning the prisoners not to be evacuated over to the Gestapo was
under way and, when questioned as to whether it had been authorized by
the Ministry of Justice, Hansen had named Klemm as the person in the
Ministry who knew of and approved the transaction. He stated further
that Eggensperger had made a typewritten note reporting his telephone
conversation with Hansen and that he had received a copy of the note.
On cross-examination the witness Hecker testified in substance that
he was himself in charge of the problem of the evacuation of prisons.
When asked if he had heard that Himmler, in the middle of January, had
issued an order concerning Sonnenburg, he answered that he had not and
repeatedly denied any knowledge to the effect that Himmler had taken
charge at Sonnenburg, and stated that he had not heard any rumor in the
Ministry of Justice to the effect that Thierack had given up authority
to issue orders concerning Sonnenburg. He stated that the conversation
with Thierack over the telephone was at night and that Thierack had
merely answered briefly his inquiry, stating that the institution would
be defended. He testified that during the course of that night he
repeatedly spoke to the authorities in Sonnenburg penitentiary and that
he tried to contact the competent person in the Kammergericht, namely
Hansen, in regard to the matter. Hecker stated that the director of
the penitentiary knew that some kind of an agreement with the Gestapo
existed and what he should do in the case of an evacuation, and that
there were secret directives for evacuating penitentiaries and prisons.
As to the note made by Eggensperger, he stated that it included a
statement to the effect that the matter had been discussed between the
General Public Prosecutor and the State Secretary Klemm. When asked
about what happened to prisoners not evacuated, he replied that “as far
as I was informed, the prisoners were shot by the Gestapo.”
The testimony of Eggensperger in connection with the evacuation of
Sonnenburg is also significant. Eggensperger testified that he was an
official in the penal execution department of the Ministry of Justice;
that he was the official on duty for the entire Ministry of Justice to
whom telephone calls were channeled on the night that Hansen reported
the evacuation of Sonnenburg. Hansen called him during the night
and informed him that during that night the prisoners of Sonnenburg
penitentiary would be handed over to the Gestapo; that a detachment
of the Gestapo had already arrived at Sonnenburg; and that the action
was under way. “Hansen told me that this evacuation, or rather this
transfer of the prisoners being carried out, was because the enemy
constituted an immediate danger to the prison.” When asked whether
this directive had been approved by anyone in the Ministry of Justice,
Hansen answered, “Yes. This matter has been discussed with the State
Secretary Klemm.” He testified as to the note which he made reporting
the transaction, and that Hecker received a copy of this note. He
stated that he had been deeply impressed by the information which he
had received and asked Hecker if it was true that the State Secretary
knew anything about the matter and approved it, and when asked what
Hecker said, he answered:
“Hecker shrugged his shoulders. He looked at me and said, ‘Well,
Hansen has--’ Well, I can only give you the sense of what he
says, that Hansen has fooled this Under Secretary of State and
he has got around him, or he impressed him. I think he said,
‘Hansen has convinced the Under Secretary of State to approve
it.’”
He further stated that when he asked Hansen whether the minister or the
Ministry were familiar with the matter, he answered in the affirmative
and told him that the State Secretary knew about it and that he had put
this down in his file note.
On cross-examination when asked if, as a liaison officer in Berlin in
Department V, he reported repeatedly to the defendant Klemm in his
capacity as State Secretary, he answered, “Yes.” When asked with what
matters he was concerned, he answered, “Again and again there were
current matters which had to be discussed with the State Secretary who
wanted some information and some information I gave him myself. In
some complicated cases I asked the officials in charge to come in.”
The witness also testified that because of Klemm’s personality he,
Eggensperger, was quite surprised at the action of Klemm and that was
why he discussed the matter with Hecker in the morning. He testified
further that it was his duty to make the file note as to the telephone
conversation which he had received; that that file note was, he would
say, about a half of a typewritten page. When asked if the file note
included the name Klemm in connection with the fact that Hansen had
referred to him, he answered, “Yes.” When asked whether Hansen spoke
about an agreement, whether he used the word “agreement,” the witness
answered that while he could not state the exact word used, that Hansen
informed him that the matter had been discussed and approved, and
stated that Hansen “reported to me the execution of a directive which
had been issued.” He further stated:
“If you ask me concerning the execution, it was the report of a
general public prosecutor concerning an important occurrence in
a penitentiary. I would formulate it like that. It was his duty
to report this matter.”
When asked if the name Klemm was mentioned by Hansen because Hansen had
noticed that the witness had some doubts, the witness answered:
“I certainly didn’t ask him whether the State Secretary had a
report on that matter. I certainly asked him that the minister
knew about it, and therefore, it was striking that he did not
refer to the minister himself but rather to Klemm.”
He further testified:
“I was the only official, apart from Hecker, in Department V,
who had remained in Berlin, and in that capacity I maintained
contact between the Ministry--that is the RMJ--and the evacuated
divisions. If Hansen was given any instructions, then it was I
who passed them on to him. That brought about the fact that I
had frequent contact with him, particularly over the telephone.”
He stated further that he never heard of anybody being called to
account for the action taken in connection with the massacre at
Sonnenburg.
Pertaining to the question as to who had the authority to determine
what prisoners were to be evacuated in case of evacuation and what
prisoners were to be turned over to the Gestapo for liquidation,
[NG-030, Pros. Exhibit 290] is important.
This exhibit includes the directive from the Reich Ministry of Justice,
dated 5 February 1945, which is designated “Secret,” to the public
prosecutor in Linz, re: preparation for an evacuation of the penal
institution within the district of Oberlandesgericht Graz. This letter
shows enclosures. It states as follows:
“In view of the proximity of the front line I have advised the
public prosecutor in Graz to make the necessary preparations
for possible evacuation of the penal institutions within his
jurisdiction, and I have decided that your district shall be the
reception center for these institutions. You are requested to
take any steps which may be necessary for their reception, as it
might [become urgent at any moment. You will also get in touch]
with the public prosecution in Graz and exchange all necessary
particulars with him for the settlement of questions concerning
you both. For details I refer to the enclosed directives. You
are requested to keep me informed of whatever steps you take.”
It also includes a directive from the Reich Ministry of Justice
with the file mark “IV a 56/45 g,” dated Berlin, 12 February 1945,
marked “Secret,” and also contains the stamp of the Oberlandesgericht
president at Linz, “Received 9 March 1945.” It is designated,
“Relieving of the Penitentiaries.” It shows enclosures as follows:
“Additional copies for the public prosecutor and all independent penal
institutions.” This directive states, among other things:
“Foreigners can only be set free in full agreement with the
police authorities; otherwise they must be transferred to the
police.”
This directive is signed “Thierack.”
The exhibit contains further a directive to the public prosecutors,
Linz, and is in part as follows:
“To the: Public Prosecutors, Linz.
The authorities in charge of the independent
administrative offices.
Judges in charge of the juvenile prisons in Ottenheim
[and Mattighofen].
“For their knowledge and consideration. The circulars given in
the Reich ordinance of the Reich Ministers of Justice, dated 12
February, have been communicated as follows: * * *.”
This directive also contains a form to be used in connection with the
discharge of prisoners, designated: “Supplement to: Reich Ordinance of
Reich Ministers of Justice, dated 12 February 1945,” with the file mark
“IV a 56/45 g,” and has the seal of Linz showing receipt.
The exhibit also includes a directive of “Evacuation of the Judicial
Executive Institutions Within the General Plan for the Evacuation of
Threatened Territories in the Reich.” This is marked “Secret” and has
no heading, no date, and no signature (_NG-030, Pros. Ex. 290_).
This states, in paragraph 1:
“The evacuation of penal institutions lying within territories
threatened by enemy attack is a matter of concern for the
public prosecutors of the territories to be evacuated as well
as for those within the territories appointed for reception in
transit. This does not apply if the evacuation can be confined
to a change of locality within the Landesgericht itself. The
carrying out without friction of all measures of evacuation
therefore depends upon the close cooperation of the public
prosecutors concerned who must get in touch with each other on
all the particulars which are necessary for those measures.
The individual measures for evacuation must be left as far as
possible to the personal initiative of the public prosecutors
concerned, as only they possess the necessary knowledge of local
conditions and are able to bring about the required cooperation
with local administrative and Party offices. These directives
can only give an indication of what is to be done.”
From the import, a fair inference is that it was an enclosure to the
original letter of Thierack.
Further along, the document states:
“NN prisoners are not to be released under any circumstances.
They are to be rapidly transferred to territories which are not
in danger of enemy attack according to special orders.
“Foreigners are to be released only if they had their residence
in the Reich for many years, if they are especially reliable and
fulfill all the requirements under (_h_).
“Jews, Jewish persons of mixed race of the first degree, and
gypsies are not to be released.
“For Polish subjects, who are protected personnel, a release may
be considered only if the requirements made under (_h_)
apply to them after the strictest investigation. The same
applies to people living in the Protectorate of Bohemia and
Moravia. Poles who have been sentenced to at least 1 year
internment in a disciplinary camp, may also be turned over
to the police, with an interruption, if necessary, in the
execution of their sentence. This can only be done if an
agreement is reached with the commander of the Security Police
and the SD.”
Under the heading of “Carrying-out the evacuation” is stated
(_NG-030, Pros. Ex. 290_):
“As soon as orders for evacuation are issued, the evacuation
has to be carried out in full accordance with the plans agreed
upon. In many cases, it is true, prevailing conditions will
necessitate deviations and improvisations. Should it become
impossible, for any reasons, to bring the prisoners back to the
extent agreed upon, those prisoners who are not outspokenly
asocial or hostile to the State, are to be released in good
time so that they will not fall into the hands of the enemy.
The elements mentioned before, however, must be turned over
to the police for their removal, and if this is not possible
they must be rendered harmless by shooting. All traces of the
extermination are to be carefully removed.”
Further documents in this exhibit, issued at Linz, show that by
agreement and orders of the defense commissioner, orders were issued
by the prosecutor at Linz which appear to implement the preceding
document. On 14 April 1945 the chief public prosecutor at Linz made an
official report to the Reich Ministry of Justice showing steps which he
had taken.
The significant directives of the Minister of Justice above quoted
were issued shortly after the incident at Sonnenburg and concerned
the disposition of prisoners in the penitentiaries of the Reich in
areas threatened by the Allied advance. It is also significant that
the defendant Klemm who denies all connection with or authority over
the penitentiary at Sonnenburg in late January 1945 subsequently on
11 February 1945 ordered the evacuation of the prison at Bautzen,
including the discharge of certain prisoners and the transfer of those
not so discharged to Waldheim; and that around Easter of 1945 he
ordered the evacuation of the prison at Rothenfeld and instructed the
matron as to the disposition of the prisoners.
It is the contention of the defendant that Hansen was an unreliable
person who falsely used the name of the State Secretary. It is to
be noted, however, that the testimony does not show that Hansen was
undertaking to obtain from Eggensperger authority for some contemplated
action under alleged authority from the State Secretary. Hansen called
Eggensperger who was the official on duty at the Ministry of Justice to
make an official report of an action which was already under way and
when questioned as to his authority, he cited the approval of the State
Secretary. His report was embodied in an official note as he could
assume it would be. This note stated that the action taken was based
upon the approval of the State Secretary. Surely Hansen, an official
under the Minister of Justice, whatever his character might have been,
would never have dared to use falsely an alleged authority by the State
Secretary to account for the liquidation of some 800 people and then
make an official report that, according to all normal procedure, would
come directly into the hands of the State Secretary.
This Tribunal is asked to believe that in the middle of January,
Himmler took over the operations of the penitentiary at Sonnenburg and
that the first time that the State Secretary, the defendant Klemm,
heard of the liquidation of those who were not evacuated was in this
trial. That Himmler controlled evacuations within the area of his
command was shown by evidence in this case and can be assumed from the
nature of the evacuation. An evacuation is a matter of military concern
since it involves interference on the roads with military operations
and transport. The operational control of a penal institution is an
entirely different matter. In the middle of January, Himmler was in
command of an army which was having considerable difficulty and he was
scarcely in a position to assume the functions and responsibilities
in the Ministry of Justice as regards the operations of a penal
institution. Certainly if he did so it is strange that Eggensperger,
a Referent in Department V dealing with penal institutions, or
Hecker, also in Department V and in charge of evacuations of penal
institutions, or the director of the institution at Sonnenburg, knew
nothing about this transfer of authority some two weeks after it is
alleged to have been made. It was also strange that Hansen, who is
alleged to have known of this transfer of authority, would call the
Ministry of Justice and make an official report as to the transaction
on the night when it was under way and cite as his authority for his
connection therewith the State Secretary. That the defendant Klemm knew
nothing about the liquidation of some 800 people in this institution
until he learned it in this trial, overtaxes the credulity of this
Tribunal. Even in Nazi Germany the evacuation of a penal institution
and the liquidation of 800 people could hardly have escaped the
attention of the Minister of Justice himself or his State Secretary
charged with supervision of Department V which was competent for penal
institutions. Exhibit 290, herein extensively quoted, shows that the
operations of penal institutions and the disposition of the inmates
remained a function of the Ministry of Justice, and it is the opinion
of this Tribunal that the Ministry of Justice was, at the time of the
evacuation of Sonnenburg, responsible for the turning over of the
inmates to the Gestapo for liquidation, and that the defendant, Klemm,
approved in substance, if not in detail, this transaction.
When Rothenberger was ousted as State Secretary because he was not
brutal enough, it was Klemm who was chosen to carry on the Thierack
program in closest cooperation with the heads of the Nazi conspiracy.
Klemm was in the inner circle of the Nazi war criminals. He must share
with his dead friend, Thierack, (with whom he had lived), and his
missing friend, Bormann, the responsibility, at a high policy level,
for the crimes committed in the name of justice which fill the pages
of this record. We find no evidence warranting mitigation of his
punishment.
Upon the evidence in this case it is the judgment of this Tribunal
that the defendant, Klemm, is guilty under counts two and three of the
indictment.
_THE DEFENDANT ROTHENBERGER_
From his own sworn statements we derive the following information
concerning the defendant Rothenberger. He joined the NSDAP on 1 May
1933 “for reasons of full conviction.” From 1937 until 1942 he held the
position of Gau Rechtsamtleiter. He states: “As such I also belonged
to the Leadership Corps.” Parenthetically, it should be stated that
the organization within the Leadership Corps to which he belonged has
been declared criminal by the judgment of the first International
Military Tribunal, and that membership therein with knowledge of
its illegal activities is a punishable crime under C. C. Law 10. We
consider the interesting fact of his membership in the Leadership Corps
no further, solely because defendant Rothenberger was not charged in
the indictment with membership in a criminal organization. He was a
Dienstleiter in the NSDAP during 1942 and 1943. From 1934 to 1942 he
was Gaufuehrer in the National Socialist Jurists’ League. In 1931 he
became Landgerichtsdirektor, and in 1933 Justiz-Senator in Hamburg.
From 1935 to 1942 he was president of the district court of appeals
in Hamburg. In 1942 he was appointed Under Secretary in the Ministry
of Justice under Thierack. He remained in that office until he left
the Ministry in December 1943, after which he served as a notary in
Hamburg. Thus, it is established by his own evidence that while serving
as president of the district court of appeals he was also actively
engaged as a Party official. Other evidence discloses the wide extent
to which the interests and demands of the Ministry of Justice, the
Party, the Gau Leadership, the SS, the SD, and the Gestapo affected
his conduct in matters pertaining to the administration of justice.
Rothenberger took over the Gau Leadership of the National Socialist
Lawyers’ League at the request of Gauleiter Kauffmann, who was the
representative of German sovereignty in the Gau and who was, for all
intents and purposes, a local dictator. As Gaufuehrer during the period
following the seizure of power, Rothenberger had ample opportunity to
learn of the corruption which permeated the administration of justice.
He testified:
“It has been emphasized here time and again how during the
first period, after the revolution of 1933, every Kreisleiter
attempted to interfere in court proceedings; the Gestapo tried
to revise sentences, and it is known how the NSRB, the National
Socialist Jurists’ League, tried to gain influence with the
Gauleiter or the Reichsstatthalter in order to act against the
administration of justice.”
Concerning the dual capacity in which he served, he said:
“On account of the identity, of course, between president of the
district court of appeals and Gaufuehrer, I was envied by all
other district courts of appeal because they continually had to
struggle against the Party while I was saved this struggle.”
In August 1939, on the eve of war, Rothenberger was in conference with
officials of the SS and expressed to them the wish to be able to fall
back on the information apparatus of the SD, and offered to furnish to
the SD copies of “such sentences as are significant on account of their
importance for the carrying-out of the National Socialist ideas in the
field of the administration of justice.” Rothenberger testified that
during the first few years after the seizure of power, there was the
usual system of SD informers in Hamburg. The unsatisfactory personnel
in the SD was removed by Reichsstatthalter Kauffmann, and the defendant
Rothenberger nominated in their place individuals who, he said, “were
judges and who I knew would never submit reports which were against the
administration of justice.” He states also:
“In the meantime, the directive had been sent down from the
Reich Ministry of Justice to the effect that the SD should be
considered and used as a source of information of the State by
agencies of the administration of justice.”
While he was president of the district court of appeals at Hamburg, and
during the war, this ardent advocate of judicial independence was not
adverse to acting as the agent of Gauleiter Kauffmann. On 19 September
1939 Kauffmann, as Reichsstatthalter and defense commissioner, issued
an order as follows:
“The president of the Hanseatic Court of Appeals, Senator Dr.
Rothenberger, is acting on my order and is entitled to demand
information in matters concerning the special courts and to
inspect documents of every kind. All administrative offices as
well as the offices of the NSDAP are requested to assist him in
his work.”
On 26 September 1939 Rothenberger, as president of the Hanseatic Court
of Appeals, notified the Prosecutor General of Kauffmann’s order and
requested that a copy of the indictment “in all politically important
cases or cases which are of special interest to the public should be
sent to him.” In a report to Schlegelberger of 11 May 1942 he spoke of
the “crushing effect” of the Fuehrer’s speech of 26 April 1942 and of
the feeling of consequent insecurity on the part of the judges, and
said:
“I have therefore assumed responsibility for each verdict which
the judges discuss with me before passing it.”
In the same report he states that on 6 May 1942 he made arrangements
with all senior police officers, senior SS, senior officers of the
criminal police, of the Secret State Police, and of the SD “to
the effect that every complaint about juridical measures taken by
judges was to be referred to me before the police would take action
(especially regarding execution of sentence).”
In June 1942 Rothenberger reported to the defendant Schlegelberger
that he had made similar arrangements in Bremen with the Kreisleiter,
president of the police, leader of the Secret State Police (Gestapo),
and the leader of the SD. He reported to Schlegelberger:
“In view of the present situation, I am intensifying the
internal direction and control of jurisdiction which I have
considered to be my main task since 1933.”
On 7 May 1942 Rothenberger issued an order in which he stated his
intention to inform himself prior to the proceedings on cases which
are of political significance “or which involve the possibility of a
certain conflict between formal law and the instinctive reactions of
the people or National Socialist ideology.” He directed that reports
be submitted to him which must be in sufficient detail in order, as he
said, “to enable my deputy to judge the necessity of my intervention.”
By reference to his own words we have already set forth Rothenberger’s
expressed convictions as to the duty of a judge as the “vassal” of the
Fuehrer to decide cases as the Fuehrer would decide. The conclusion
which we are compelled to draw from a great mass of evidence is not
that Rothenberger objected to the exertion of influence upon the courts
by Hitler, the Party leaders, or the Gestapo, but that he wished that
influence to be channeled through him personally rather than directed
in a more public way at each individual judge. On the one hand he
established liaison with the Party officials and the police, and on
the other he organized the system of guidance of the judges who were
his subordinates in the Hamburg area. He testifies that he considered
the system of conferences between judges and prosecutors before trial,
during trial and sometimes after trial, but before the consultation of
the judges, to be wrong, and states that he considered it more correct,
in view of the situation, that such a discussion should take place a
long time before the trial and not between individual judges and the
prosecutor, “but on a higher level, namely, between the chiefs of the
offices, so that there would be no possibility to exert an influence on
the individual judge in any way.” Concerning his dictatorial attitude
toward the other judges, Rothenberger testified: “Of course, guidance
is guidance, and absolute and complete independence of the judge is
possible only in normal conditions of peace, and we did not have these
conditions after the Hitler speech.”
The guidance system instituted by the defendant Rothenberger was not
limited to conferences concerning pending cases of political importance
before trial. We are convinced from the evidence that he used his
influence with the subordinate judges in his district to protect Party
members who had been charged or convicted of crime, that on occasions
he severely criticized judges for decisions rendered against Party
officials, and on at least one occasion was instrumental in having a
judge removed from his position because he had insisted upon proceeding
with a criminal case against a Party official.
As further illustration of the character of control which was exercised
by Rothenberger over the other judges in his district, reference is
made to his letter of 7 May 1942 addressed to the judges in Hamburg and
Bremen in which he announced that a conference would be held for the
discussion of cases fixed for the following week. We quote (_NG-389,
Pros. Ex. 76_):
“A few cues to matters which will come up will be given, file
numbers quoted, and comments made in a few key words.”
He especially required of the judges that they report to him concerning
penal cases against Poles, Jews, and other foreigners, and “penal
and civil cases in which persons are involved who are State or Party
officials, or NSDAP functionaries, or who hold some other eminent
position in public life.”
One will seek in vain for any simple, frank, or direct statement by
Rothenberger relative to any of the abuses of the Nazi system. His real
attitude can only be extracted from the ambiguities of his evasive
language. We quote from the record of the report made by Rothenberger
to the judges on 27 January 1942 (_NG-1106, Pros. Ex. 462_):
“With regard to the matter it had to be considered whether or
not any material claims made by the Jews could still be answered
in the affirmative. Concerning this question, it might, however,
be practical to maintain a certain reserve.”
In an early report to the Hamburg judges, Rothenberger discussed the
opinion of the Ministry concerning the legal treatment of Jews. He
stated that the fact that a debtor in a civil case is a Jew should as a
rule be a reason for arresting him; that Jews may be heard as witnesses
but extreme caution is to be exercised in weighing their testimony.
He requested that no verdict should be passed in Hamburg when a
condemnation was exclusively based on the testimony of a Jew, and that
the judges be advised accordingly.
On 21 April 1943, as the result of a long period of inter-departmental
discussions, a conference of the state secretaries was held.
Rothenberger was at the time State Secretary in the Ministry of
Justice and participated in the conference concerning the limitation
of legal rights of Jews. Kaltenbrunner also participated. At this
meeting consideration was given to drafts of a decree which had long
been under discussion. Modifications were agreed upon and the result
was the promulgation of the infamous 13th regulation under the Reich
Citizenship Law which provided that criminal actions committed by Jews
shall be punished by the police and that after the death of a Jew his
property shall be confiscated.
We next consider Rothenberger’s activity concerning the deprivation of
the rights of Jews in civil litigation. In the report of 5 January 1942
the defendant wrote:
“The lower courts do not grant to Jews the right to participate
in court proceedings in _forma pauperis_. The district
court suspended such a decision in one case. The refusal to
grant this right of participation in court proceedings in
_forma pauperis_ is in accordance with today’s legal
thinking. But since a direct legal basis is missing, the refusal
is unsuitable. We therefore think it urgently necessary that a
legal regulation or order is given on the basis of which the
rights of a pauper can be denied to a Jew.” (_Pros. Ex. 373,
NG-392, document book 5-D, p. 331._)
Notwithstanding his statement of 5 January to the effect that it would
be unsuitable to deprive Jews of this right without a legal regulation,
we find that on 27 January 1942 the report of a conference shows the
following (_NG-1106, Pros. Ex. 462_):
“The senator reported that the question of the poor law
concerning Jews has gained significance again. With the district
court there were two cases pending. He requested that contacts
with the district court and with the local court judges be made
at once so that a uniform line is followed to the effect that
the Jews be denied the benefits of the poor law. It would be
entirely out of the question that Jews be granted the benefits
of the poor law subsequent to the present development. This
would apply especially to Jews who had been evacuated, but in
his opinion also to those who had not been evacuated.”
About this time a report concerning the claim of the Jewish plaintiff,
Israel Prenzlau, came to the attention of the defendant Rothenberger.
The Jew sought the right to proceed in _forma pauperis_. The
report on the case contains the following statement by a Gau economic
advisor, which is couched in the usual Nazi language of sinister
ambiguity (_NG-589, Pros. Ex. 372_):
“In reply to your inquiry I state my point of view in detail.
“In a lawsuit between a German national and a Jew, I consider
the settling of a dispute by compromise settlement in court
inadmissible for political reasons. The German national,
as party in the lawsuit, pursuant to his clearly defined
conceptions of justice derived from his political schooling
since 1933, can expect that the court will decide the case by a
verdict, i.e., take a conclusive attitude toward the dispute in
hand. What is expected is a decision which was arrived at not
from purely legal points of view, as result of a legal train of
thought, but which is an expression to the way in which National
Socialist demands concerning the Jewish question are realized
by German administrators of justice. Evading this decision by a
compromise might mean encroaching upon the rights of a fellow
citizen in favor of a Jew. This kind of settlement would be in
contradiction to the sound sentiments of the people. I therefore
consider it inadmissible.”
The report shows that upon receipt of the opinion of the Gau economic
advisor, “the defendants thereupon refused settlement with the
plaintiff and now deny that they owe him anything.” The court which had
jurisdiction of the Prenzlau case granted to the plaintiff the right
to proceed in _forma pauperis_. On 13 February 1942 having before
him the report of the Gau economic advisor, the defendant Rothenberger
wrote to the president of the district court, Hamburg, as follows:
“I do not intend to approach the economic advisor of the Gau
for the time being, seeing from the documents that the ultimate
beneficiary of the claim, the son of the plaintiff, emigrated
in the year 1938 and his property, therefore, surely being
confiscated. I fail to understand why the court granted _forma
pauperis_ rights to the assignee, a Jew, without first
consulting the authority for sequestration of property.”
A note dated 24 February shows that Rothenberger had issued a directive
to two judges of his district to the effect that every case involving
the claim of the right of Jews to proceed in _forma pauperis_
must first be submitted to him. On 5 March 1942 a directive was issued
from the Reich Ministry of Justice in substantial conformity with the
recommendation of the defendant Rothenberger. It provided:
“In future the granting of rights of _forma pauperis_ to
Jews can only come into consideration if the carrying-out of the
lawsuit is in the common interest, viz, in disputes concerning
family rights (divorce in cases of mixed marriages, establishing
the descent).”
After the enactment of the foregoing ordinance, and on 7 May 1942,
a courageous president of the district court at Hamburg wrote to
Rothenberger stating that in his opinion the right of Jews to proceed
in _forma pauperis_ would have to be granted. He added:
“I am convinced that it is in the common interest that an Aryan
cannot evade without further ado a just claim against him merely
for the reason that the court denies the _forma pauperis_
right to Jews.”
Notwithstanding this protest, and on 22 May 1942, the defendant
Rothenberger, in reliance upon the ordinance which was based upon his
recommendation, wrote to the president of the district court of Hamburg
that he considered it “adequate that the _forma pauperis_ right
granted to the plaintiff Prenzlau be canceled. Please have this taken
into consideration by the court in a form which you deem appropriate.”
The foregoing narrative takes on additional significance when
summarized. First, Rothenberger recommends to the Minister of Justice
that it is desirable to deny to Jews the right to proceed in _forma
pauperis_, but that such denial is inadmissible because there is no
law to justify it. He recommends the passage of such a law. About 3
weeks later, no law having been passed, he recommends that the judges
take a uniform line depriving the Jew of the right to proceed in
_forma pauperis_. A specific case now arises in which the right
was granted to a Jew, and the defendant Rothenberger receives veiled
suggestions from the Gau economic advisor to the effect that defendants
should not be allowed to compromise a case brought against them by a
Jewish plaintiff because the court should decide against the Jew in
any event on political grounds. Concerning this suggestion Rothenberger
ventures no comment. The defendant in the Prenzlau case takes his cue
from the advice of the economic advisor and denies liability; the
court grants to the Jew the right to proceed in _forma pauperis_.
Rothenberger criticizes this action, although the lower court had
acted in strict conformity with the law. In March the awaited law
excluding the Jew from the benefit of the poor-law is passed. In May,
Rothenberger overrules the protest of a judge and directs the canceling
of the order which was made by the lower court. This dictation by the
defendant Rothenberger to other courts and judges of his district
was not done in the course of a legal appeal from the lower court to
the court over which he presided. It was done after the manner of a
dictator directing an administrative inferior how to proceed.
Rothenberger not only participated in securing the enactment of a
discriminatory law against Jews; he enforced it when enacted and, in
the meantime, before its enactment, upon his own initiative he acted
without authority of any law in denying to Jewish paupers the aid of
the courts.
It is true that the denial to Jews of the right to proceed in civil
litigation without advancement of costs appears to be a small matter
compared to the extermination of Jews by the millions under other
procedures. It is nevertheless a part of the government-organized plan
for the persecution of the Jews, not only by murder and imprisonment
but by depriving them of the means of livelihood and of equal rights in
the courts of law.
The defendant Rothenberger testified that various judges reported to
him “that they had heard rumors to the effect that everything was not
quite all right in the concentration camps” and that they wished to
inspect one. Accordingly, Rothenberger and the other judges visited the
concentration camp at Neuengamme. He testified that they inquired about
food conditions, accommodations, and the methods of work, and spoke to
some inmates, and he asserts that they did not discover any abuses.
This was in 1941. Again in 1942, according to his own testimony,
the defendant visited Mauthausen concentration camp in company with
Kaltenbrunner, who was later in charge of all concentration camps
in Germany and has since suffered death by hanging. At Mauthausen
concentration camp the defendant Rothenberger again inspected
installations, conferred with inmates, and inquired as to the cause of
detention of the inmates with whom he had talked. He states that from
his spot checks he “could not find out that there was any case of a
sentence being ‘corrected.’” Upon inquiry as to what the defendant
meant by the “correction of sentences,” he answered:
“By correcting of a sentence we mean that when the court had
pronounced a sentence, for example, had condemned somebody to be
imprisoned for a term of 5 years--if the police now, after these
5 years had been served, if the police arrested this man and
put him into a concentration camp--this is only an example of a
correction. Or even if, and this is clearer, it happened that a
person was acquitted by a court, and in spite of that the police
put this man into a concentration camp. These are examples of
correction of sentences.”
The defendant stated that he did not observe and could not discover
any abuse at Mauthausen. In this connection the testimony of defense
witness Hartmann is of interest. Hartmann accompanied Dr. Rothenberger
on his visit to Mauthausen concentration camp. He testified that rumors
were current in Germany to the effect that conditions were not what
they should be in the concentration camps. Hartmann testifies that
they went about the camp freely and observed everything closely. On
cross-examination by the Tribunal, Hartmann testified as follows:[670]
“Q. * * * When you visited Mauthausen concentration camp, you
knew, did you not, that the courts in the Ministry of Justice
never sentenced convicted criminals to a concentration camp? * *
*
“A. Yes.
“Q. Did Dr. Rothenberger know it?
“A. Yes.
“Q. Then you knew that these ten people that he talked with, and
the one or two that you talked with, were not there by reason of
any action on the part of the Ministry of Justice or the court,
but were there only by reason of action by the police or by the
Party, did you not?
“A. Yes. That was preventive custody undertaken by the police.”
The witness Hartmann testified further:
“Q. And they had already served their sentences as imposed by
court before they were taken into this custody of the police, is
that right?
“A. Yes. That is how I see it.
“Q. And at that time, these twelve people who had served their
sentences and had been taken over by the police--that met with
the approval of the defendant Dr. Rothenberger, as I understand
you?
“A. Well [we] did not approve the concentration camp as an
institution altogether, but first of all we wanted to achieve
this--that it would no longer happen that a defendant was
acquitted and then after acquittal the Gestapo arrested (him) in
front of the courtroom. * * * In those cases, too, he did not
approve the fact that these people were in a concentration camp
because we were of the opinion that only the administration of
justice should decide these questions of criminal law and nobody
else. But according to the power conditions within the State, as
they happened to exist, our interest was first of all to remove
the worst evils.”
Upon redirect examination by counsel for the defendant Rothenberger,
defense witness Hartmann testified as follows:
“Q. Therefore, sometimes was the situation for you and Dr.
Rothenberger like this: that apparently you affirmed something
with a smiling face, something which as a human being you had to
disapprove of and reject?”
To this question the witness answered that Dr. Rothenberger “for
reasons of power politics” had to accept the conditions though he did
not approve them. After his inspection of Mauthausen concentration
camp, Dr. Rothenberger took no action whatsoever with regard to the
information which he had received.
It follows that the defendant Rothenberger, contrary to his sworn
testimony, must have known that the inmates of the Mauthausen
concentration camp were there by reason of the “correction of
sentences” by the police, for the inmates were in the camp either
without trial, or after acquittal, or after the expiration of their
term of imprisonment.
It must be borne in mind that this inspection by the defendant
Rothenberger was made at Mauthausen concentration camp, an institution
which will go down in history as a human slaughter house and was made
in company with the man who became the chief butcher.
We are compelled to conclude that Rothenberger was not candid in
his testimony and that in denying knowledge of the institution of
protective custody in its relationship with the concentration camps
he classified himself as either a dupe or a knave. Nor can we believe
that his trips to the camps were merely for pleasure or for general
education. He also advised other judges to make like investigations.
We concede that the concentration camps were not under the direct
jurisdiction of the Reich Minister of Justice, but are unable to
believe that an Under Secretary in the Ministry, who makes an official
tour of inspection, is so feeble a person that he could not even raise
his voice against the evil of which he certainly knew.
If the defendant Rothenberger disapproved of protective custody and
the consequent employment of concentration camps, it must be because
of a change in heart concerning which we have had no evidence. On 13
June 1941 Rothenberger wrote Secretary Freisler suggesting that many
small cases were being tried by the Special Court and that this was
not compatible with the importance of the court. He referred to minor
offenses which came under the public enemy decree, “in which, however,
protective custody will be requested by virtue of the offender’s past
life and his character.” Again, he speaks of cases in which motion is
made for the offender to be taken into protective custody.
On 5 January 1942 the defendant Rothenberger addressed a report on
the general situation in the Hamburg area to the Reich Minister of
Justice. From this document his attitude concerning the institution
of protective custody may be ascertained. Concerning the “transfer to
the public prosecutors of the right to decide about the duration of
protective custody,” he said:
“In a certain connection with this problem is the transfer to
the public prosecutor’s office of the right to decide about the
duration of the protective custody. I regret that it is obvious
that the courts are more cautious and reserved than they were
previously in regard to the order of protective custody, because
the duration of the protective custody is not any more within
their control. This attitude of the courts cannot be approved,
but it is psychologically understandable; I am afraid, that
the reform effected the opposite of the intended more vigorous
practice in regard to protective custody.”
In February 1939 the defendant Rothenberger and the Chief Public
Prosecutor reported to the Hamburg judges upon a conference which
had been held in Berlin. The record of the joint report in which
Rothenberger participated is as follows (_NG-629, Pros. Ex. 28_):
“A report was then made on the discussions on protective
custody. The ministry is of the opinion--also held here--that no
objection can be raised to protective custody as long as it is
purely protective, but that corrective measures, such as became
known in certain cases, must not become a habit.”
In conclusion, the evidence discloses a personality full of
complexities, contradictions, and inner conflict. He was kind to
many half-Jews, and occasionally publicly aided them, yet he was
instrumental in denying them the rights to which every litigant is
entitled. He fulminated publicly against the “Schwarze Korps” for
attacking the courts, yet he reproached judges for administering
justice against Party officials and unquestionably used his influence
toward achieving discriminatory action favorable to high Party
officials and unfavorable to Poles and Jews. He wrote learnedly in
favor of an independent judiciary, yet he ruled the judges of Hamburg
with an iron hand. He protested vehemently against the practice of
Party officials and Gestapo officers who interfered with the judges in
pending cases, but he made arrangements with the Gestapo, the SS, and
the SD whereby they were to come to him with their political affairs
and then he instituted “preview and review” of sentences with the
judges who were his inferiors. He thought concentration camps wrong but
concluded that they were not objectionable if third degree methods did
not become a habit.
Rothenberger was not happy with his work in Berlin. In his farewell
speech on leaving Hamburg, he exuberantly exclaimed that he had been
“an uncrowned king” in Hamburg, but he would have us believe that he
received a crown of thorns in Berlin. Soon he learned of the utter
brutality of the Nazi system and the cynical wickedness of Thierack and
Himmler, whom he considered his personal enemies. He could not stomach
what he saw, and they could not stomach him. The evidence satisfies
us that Rothenberger was deceived and abused by his superiors; that
evidence was “framed” against him; and that he was ultimately removed,
in part at least, because he was not sufficiently brutal to satisfy
the demands of the hour. He was retired to the apparently quiet life
of a notary in Hamburg, but even then we find that he was receiving
some pay as an Under Secretary and was assisting Gauleiter Kauffmann in
political matters in that city.
The defendant Rothenberger is guilty of taking a minor but consenting
part in the Night and Fog program. He aided and abetted in the program
of racial persecution, and notwithstanding his many protestations to
the contrary he materially contributed toward the prostitution of
the Ministry of Justice and the courts and their subordination to
the arbitrary will of Hitler, the Party minions, and the police. He
participated in the corruption and perversion of the judicial system.
The defendant Rothenberger is guilty under counts two and three of the
indictment.
_THE DEFENDANT LAUTZ_
The defendant Lautz from 20 September 1939 until the end of the war
served as Chief Public Prosecutor at the People’s Court in Berlin.
He joined the NSDAP in May 1933. During the period of his service the
“higher officials” under his supervision increased from 25 to about
70. The office originally consisted of four departments which were
later increased to five to correspond with the number of senates of
the People’s Court. After the enlargement of the department there
were five public prosecutors and one senior public prosecutor in each
department. The defendants Barnickel and Rothaug were among the senior
public prosecutors under the general supervision of the defendant
Lautz. The crimes with which his office dealt were those over which
the People’s Court had jurisdiction. Of particular interest here were
the prosecutions for undermining the German defensive strength, high
treason and treason, cases of attempted escape from the Reich by Poles
and other foreigners, and NN cases.
A great number of prosecutions were brought under the decree of 17
August 1938 which provides that “Whoever * * * openly seeks to paralyze
or undermine the will of the German people or an allied nation to
self-assertion by bearing arms” should be punished by death. This
was the law which effectively destroyed the right of free speech in
Germany. The prosecutor’s office was required to handle approximately
1,500 cases a month involving charges of this type. Under supervision
of the defendant Lautz all of these charges had to be examined and
assigned for trial to the People’s Court in serious cases, or to other
courts. In the cases which were assigned to the People’s Court for
trial “there was always the possibility that the death sentence would
be pronounced.”
The defendant Lautz instructed his subordinates that only those cases
were to be retained for trial before the People’s Court in which it was
“possible to assume full responsibility if the People’s Court senate
pronounces the death sentence.”
Lautz did not shirk responsibility for the acts of his deputies. He
testified that the signature of his deputy “meant, of course, that I
assumed responsibility for that matter.”
In connection with the work of his department it was the duty of
the defendant Lautz to sign all indictments, all suspensions of
proceedings, and all reports to his superior, the Minister of Justice.
This work assumed such proportions that it became necessary to delegate
parts thereof to his subordinates, but the defendant Lautz required
that important matters be reported directly to him. In partial
explanation of his activities and motives in connection with his
enforcement of the law against undermining the military efficiency of
the nation, Lautz stated:
“Just as I think it is a good thing that no one today can claim
that this war was lost only through treason, I must also say
that I regret that because of this war and through these death
sentences many people, who were otherwise all right, had to lose
their lives.”
As an illustration of the type of case which was prosecuted under this
law, we cite the case of the defendant who said to a woman: “Don’t you
know that a woman who takes on work sends another German soldier to his
death?” This offense was described by Lautz and Rothaug as a serious
case of undermining the military efficiency of the nation. The office
of the Chief Public Prosecutor of the People’s Court was vested with
a wide discretion in connection with the assignment of cases to the
various courts for trial. It will be recalled that the malicious acts
law of 20 December 1934 provided for punishment of persons who made
false or treacherous statements “fit to injure the welfare or prestige
of the government and of the Reich”, etc. Under this law moderate
punishments by imprisonment were authorized, whereas, under the law
against undermining the defensive strength of the nation, the death
penalty was mandatory. If the prosecutor sent the case for trial to the
People’s Court on the charge of undermining, instead of sending it to a
lower court for trial under the malicious acts law, he determined for
all practical purposes the character of the punishment to be inflicted,
and yet the evidence satisfies us that there was no rule by which the
cases were classified and that the fate of the victims depended merely
on the opinion of the prosecutor as to the seriousness of the words
spoken.
The connection of the defendant Lautz with the illegal Nacht und Nebel
procedure is established beyond question. The People’s Court acquired
jurisdiction of NN cases under the decree of the Reich Minister of
Justice of 14 October 1942. Lautz estimated that the total number of
NN cases examined by his department was approximately one thousand, of
which about two hundred were assigned to the People’s Court for trial,
but he added that each case could concern several defendants. No good
purpose will be served by a second review of the testimony concerning
the Nacht und Nebel decree. In harmony with the decision in the case of
the United States [et al.] _vs._ Goering, et al., this Tribunal
finds that the secret procedure which was instituted and enforced
through the Ministry of Justice constituted a war crime and a crime
against humanity. The Chief Public Prosecutor of the People’s Court
zealously enforced the provisions of this decree, and his conduct in so
doing violated the laws and customs of war and the provisions of C. C.
Law 10.
_Treason Cases Involving Border Crossings by Poles_
Lautz estimated that from 150 to 200 persons were prosecuted for
leaving their places of work and attempting to escape from Germany by
crossing the border into Switzerland. These cases were prosecuted under
the provisions of penal code concerning treason and high treason.
On 24 February 1942 an indictment against the Pole Ledwon was filed
by Parrisius as deputy for the defendant Lautz. The indictment was
marked “Secret Treason Case”, and bore the stamp of the Chief Public
Prosecutor at the People’s Court. A letter signed by Lautz bearing
the same date was addressed to the presidents of the Second Senate of
the People’s Court and advises them that he is sending to the court
the indictment in the case Ledwon. The indictment alleges that on 28
July 1941 the accused left his place of work in Bavaria and attempted
to escape by crossing the Reich border, and that he was stopped by
a customs official whom he struck with his fist while evading the
arrest. The indictment states that the reason given by the defendant
Ledwon for his attempt to escape from Germany “does not deserve
credence; it may rather be assumed that he intended to join the Polish
Legion organized on the side of the hostile powers”. The indictment
states that the defendant knew that the aim of the Polish Legion was
to restore a Polish state. On the basis of the foregoing specific
allegations, the indictment charges that the defendant prepared
within Germany “(1) the highly treasonable enterprise to separate
from the Reich by force a territory belonging to the Reich; (2) to
have aided and abetted the enemy inside Germany during a war against
the Reich, and thus, as a Pole, not to have behaved according to the
German laws and to the directives of the German authorities; and (3)
to have committed a violent attempt on a German official. * * *.” The
indictment was brought under the provisions of sections 80, 83, and
91b of the penal code, and under the provisions of the law against
Poles and Jews. Section 80 provides for the imposition of the death
penalty upon anyone attempting by violence or threat of violence to
detach from the Reich territory belonging to the Reich. Section 83
provides for the punishment of any person who solicits and incites an
undertaking of high treason. Section 91b provides for imprisonment or
death for any person who undertakes acts in favor of the enemy powers
or causes a detriment against the armed forces of the Reich. On 10
August 1942 the case was tried. The court found the following facts:
defendant was a Pole who lived in Poland on 1 September 1939. (See:
Law against Poles and Jews.) After the Polish campaign the defendant
reported “voluntarily” for work in Germany and then tried to leave the
country. The court states further that “the prosecution charges the
defendant with the intention of going to Switzerland in order to join
the Polish Legion there.” It adds that the Polish Legion was interned
in Switzerland and that many Poles had been caught at the frontier,
some of whom could be convicted of planning to join the Polish Legion
in Switzerland. The court, with unwanted candor, states that “the
trial did not show any concrete evidence that the defendant * * * had
any knowledge of a Polish Legion in Switzerland.” It held that due to
lack of evidence “the defendant could not be convicted of the crime
of preparation for treason and of treasonably aiding the enemy.” The
opinion of the People’s Court continues (_NG-355, Pros. Ex. 128_):
“The defendant is, however, guilty according to the result of
the trial, of an offense under the ordinance relating to the
administration of penal law for Poles, of 4 December 1941. The
general conditions of this ordinance are fulfilled, as the
defendant is, by origin, education, and sentiment, a racial Pole
and was on 1 September 1939 resident in the former Polish State.
In leaving his place of work as an agricultural laborer, of
his own accord, at the end of July, i. e., during the harvest,
he disturbed the orderly procedure of the harvest work of his
employer to the detriment of the harvest. His action moreover
was detrimental to the whole of the German people, for in
leaving his place of work in order to go abroad he deprived the
German people forever of his labor. Germany, in order to cover
her war needs and to ensure food supplies for the front as well
as for home, however, needs all persons employed, including
foreigners. Every worker who by escape abroad deprives the
German war economy for good of his labor, reduces the number of
badly needed manpower, and thus endangers the interest of the
German people.”
The court held that it was irrelevant whether the Pole knocked the
customs official down, because in any event he used force sufficient to
prevent his arrest at the time. It observed that under the law against
Poles and Jews “the only possible penalty is the death sentence, unless
a less serious case can be made out in the defendant’s favor. The
senate was not able to recognize such case.”
The opinion concludes as follows:
“But by using violence against the customs officer who was going
to arrest him and thus resisting the legal German authority,
he has proved himself such a fanatical and violent Pole that
he has forfeited any right for leniency. In view of the heavy
responsibility of the Polish nation for the bloodshed caused
during the weeks of August and September 1939, it is the duty of
every member of this nation to obey willingly the rules of the
German authorities. A Pole who, on the contrary, uses violence
against a German official can only be punished sufficiently by
the highest degree of punishment. Accordingly, this has been
imposed on the defendant.”
The Pole was sentenced to death.
We are not here to retry the case. We may, therefore, ignore the
ridiculous charge that the defendant desired to join an interned legion
and the allegation that he came to the Reich “voluntarily” after the
invasion of Poland. We have already discussed the essential evil in the
practice of prosecutors whereby they charged that Poles were guilty of
high treason by attempting to separate from the Reich territory which
had never been legally annexed to the Reich. In the Ledwon case the
sinister subtlety of the Nazi procedure is laid bare. If the case had
been brought only under the law against Poles and Jews, the People’s
Court would not have had jurisdiction, so the defendant was charged
with high treason for attempting to separate from the Reich, territory
which did not belong to it. The proof of high treason failed. There
remained only the charge that in attempting to escape from Germany and
from forced labor there, the defendant assaulted a customs officer with
his fist and that what he did was done as a Pole in violation of the
law against Poles and Jews. It was under that discriminatory law that
Ledwon was sentenced to death and executed. The defendant Lautz is
guilty of participating in the national program of racial extermination
of Poles by means of the perversion of the law of high treason.
In a similar case, upon an indictment signed by Parrisius and filed by
authority of the defendant Lautz, the People’s Court sentenced three
Poles to death upon a charge of preparation of high treason “because
they, as Poles, harmed the welfare of the German people, and because
in a treasonable way they helped the enemy and also prepared for high
treason.” The specific facts found by the court were that the defendant
Mazur and others attempted to cross the border into Switzerland for the
purpose of joining the Polish Legion. By such conduct and by depriving
the German Reich of the benefit of their labor, it was held that the
efforts of the defendants aimed “at forcibly detaching the eastern
regions incorporated in the Reich * * * from the German Reich.” The
opinion contains an illuminating passage concerning treason committed
by attempting to join an interned legion. We quote (_NG-352, Pros.
Ex. 129_):
“After the defeat of France in the present war, as is known
to the senate (court) from other proceedings, detachments of
the Polish Legion crossed the border into Switzerland and were
interned in camps. The legion continues under the command of
Polish officers and is kept in readiness for military action
against the Reich on the side of the enemy in the event of
German troops invading Switzerland.”
The evidence of intent to join the interned legion is paltry, but as
before we will not attempt to retry the case on the facts. The court
held that according to the law against Poles, the death sentence must
be imposed. We quote:
“They wanted to deprive the German nation forever of their
labor. Thus, they have damaged the welfare of the German nation.
This is an offense under the ordinance on the administration of
penal law against Poles. * * *
“The precept of the Regulation of Penal law against Poles
applies to the defendant’s offense, although it was committed
before the regulation came into force for, according to article
I of the Supplementary Regulation of 31 January 1942, the
Regulation of Penal Law against Poles can be applied to offenses
committed before the regulation was in force with the approval
of the prosecutor. This approval has been given by the Reich
Chief Prosecutor.”
In another, the Kalicki case, the record of which is marked “Secret,”
three Poles were sentenced to death for preparation of high treason
upon the same grounds as in the previous case. The court held that “the
sentence to be pronounced has to be based on the ordinance concerning
the administration of penal law against Poles, since this ordinance
provides the heaviest penalty of all laws applicable to the case.” The
evidence does not disclose that the defendant Lautz personally signed
the indictment, but it was certainly filed under his authority. The
question of clemency in the Kalicki case was presented to the defendant
Rothenberger. On 28 July 1943 he wrote:
“ * * * I have decided upon authorization by the Fuehrer not to
exercise my right of pardon but to let justice take its course.”
The defendant Lautz filed an indictment against the Pole, Bratek. The
specific charge was leaving his work in Germany and attempting to cross
the border into Switzerland to join the Polish Legion. The general
charge was the treasonable attempt to separate from the Reich an area
belonging to the Reich and the violation of the law against Poles and
Jews. The court said (_NG-595, Pros. Ex. 136_):
“At the same time he has made himself guilty of a crime
according to Article I, paragraph 3, last half sentence, of
the Ordinance on the Administration of Penal Law Against
Poles, issued 4 December 1941. Because, being a Pole, he has
intentionally inflicted damage to the interests of the German
people by malevolently leaving his important agricultural
job, above all during harvest time, in September 1942, and by
planning to rob the German people forever of his own labor by
escaping abroad. * * *
“According to article 73, Penal Code, the penalty must be based
on the ordinance concerning the administration of penal law
against Poles which _loc. cit._ demands exclusively the
death penalty as a rule, this being the most severe penal law
applicable here.”
A secret communication by the defendant Lautz to the Reich Minister of
Justice is of especial interest. The proposal under consideration as
for the prosecution of certain Poles upon the charge of high treason
on account of acts done in Poland before the war. In his discussion
Lautz quotes from Himmler, the Foreign Office, and the president of
the People’s Court. The facts on the basis of which opinions were
expressed may be illustrated thus: Within Poland and before the war, a
Pole institutes proceedings against a Polish citizen of German blood,
charging the racial German with fifth column activities directed
against Poland. During the war the Pole who instituted the prosecution
against the racial German is captured. The question was: Can the Pole
be prosecuted in a German court on a charge of high treason against
the Reich, basing the charge on the fact that he had prosecuted the
racial German in Poland? The German penal statute involved was section
91, paragraph 2, which provides that “whoever with the intention of
causing a serious detriment to a national of the Reich, enters into
relations as described in paragraph I shall be punished,” in especially
serious cases by death. Himmler, as quoted by Lautz, discusses the
basis for punishment by German courts of “an offender who has caused
racial Germans to be punished or otherwise prosecuted by Polish
authorities.” Himmler asserts that foreign police used methods against
racial Germans which were contrary to international law and “the laws
of minorities” and that such offenders deserve heavy punishment, but
he also states that as far as racial Germans are concerned, section
91, paragraph 2, of the German Penal Code “is not directly applicable,
as racial Germans, according to formal national laws were not German,
but Polish, citizens. I can only express my opinion in the form of a
suggestion, that in case of the betrayal of a racial German by the
foreign Poles * * * section 91, paragraph 2, of the German Penal Code
is to be applied * * *.” (Citing decisions of the People’s Court.)
Himmler directly states that the provisions of section 91, paragraph
2, are “nonapplicable”. We emphasize the fact that the question under
discussion related to the proposed prosecution of a Pole for acts
committed before the war while Poland was in the exercise of its
sovereign powers throughout its territory. The question could not well
have related to acts done after Poland had been overrun and part of
it purportedly annexed, for, at that time Polish authorities would
have been in no position to prosecute racial Germans. Furthermore, in
discussing the problem, Lautz mentions a case against the Pole Golek
which had recently come into his hands on preliminary proceedings. He
states that Golek in the years 1938 and 1939 in Poland had turned over
to the police authorities a racial German of Polish nationality and had
accused him of high treason committed in favor of the Reich.
Himmler, as quoted by Lautz, expressed the view that considerations of
foreign policy would be opposed to the enactment of any German statute
under which a Pole could be prosecuted by German authorities on account
of acts of the kind indicated, but he added:
“I see here a task for the courts, an opportunity to fill a
gap in the law, a gap caused by political reasons of state by
creating a law in the appropriate cases.”
Himmler quoted from an opinion by the People’s Court in which it was
said that the National Socialist State “feels it incumbent on itself,
even in case of a conspiracy by a foreign government against one
single Reich citizen, to give the threatened person its protection in
accordance with penal law as far as this is possible from the home
country.” It will be observed that this quotation relates to the
protection of Reich citizens, not Polish citizens, who are only racial
Germans. Himmler continued, however:
“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 racial Germans living on its
borders.”
The defendant Lautz frankly expressed the view that the German statute
defining treason did not cover the case under discussion. In this he
was clearly correct. The German statute on treason had been extended
to provide that “whoever with the intention of causing * * * any
other serious detriment to the Reich, establishes relations with a
foreign government, shall be punished by death.” This section was
not applicable to the case under discussion because the charge to be
preferred against the Pole was one of treason against an individual
and not against the Reich. By the law of 24 April 1934 the concept of
treason was also expanded to cover certain cases of causing serious
detriment to a German national, but that law also was inapplicable to
the case under discussion because the serious detriment had not been
caused to a German national but only to a racial German. Insofar as the
German statutes required punishment of acts done with the intention of
causing serious detriment to a national of the Reich, they extended
the concept of treason in a manner unknown to the criminal law of any
civilized state, and this law was made applicable in occupied and
purportedly annexed territory. Notwithstanding the extremes to which
the German laws of treason were extended, the defendant Lautz stated
that he agreed with the Reich Leader SS and the president of the
People’s Court that a direct application of the German law of treason
protects only German nationals and does not apply to racial Germans. He
then stated:
“Furthermore, I concur with the conception that the general
political development which has meanwhile come about,
particularly during the last years, which has enabled the Reich
largely to protect its racial members of foreign nationality to
a greater extent than it has been possible hitherto, must be
borne in mind in this particular instance. Therefore, I find
it necessary, on principle, to protect by means of the German
penal code those racial Germans who have seriously suffered
through action such as mentioned in paragraph 92, subparagraph
2, of the Penal Code, provided that action deserves punishment
in accordance with sound German sentiment, but where such
punishment, considering the elements of wrongdoing of that
particular case, cannot be brought home on the strength of any
other directly applicable penal regulation.”
In conclusion the defendant Lautz stated that in the majority of cases
which have been committed by foreign nationals abroad against racial
Germans he would “have to report in each individual case.”
Stated in plain language, Lautz proposed that the courts should try
and convict Poles for acts which violated no statute of any kind, if
they deserved punishment according to sound German sentiment. This
proposal violates every concept of justice and fair play wherever
enforced, but when applied against a Pole for an act done in his own
country in time of peace, the proposition becomes a monument to Nazi
arrogance and criminality. Such a Pole owed no duty of loyalty to any
state except Poland and was subject to the criminal jurisdiction of no
state but Poland. The prosecution of the Pole Golek would constitute
a palpable violation of the laws of war (see: citations to the Hague
Convention, _supra_), and any official participating in such a
proceeding would be guilty of a war crime under C. C. Law 10. The
document discloses that cases similar to that of Golek had been tried
by the People’s Court and that more prosecutions were expected in the
future. As a witness, the defendant Lautz testified that “in several
individual cases a decision had to be obtained from the minister.” We
are justified in believing that Lautz’ expectations were fulfilled and
that he participated in the prosecution of Golek and in similar cases.
We have cited a few cases which are typical of the activities of
the prosecution before the People’s Court in innumerable cases. The
captured documents which are in evidence establish that the defendant
Lautz was criminally implicated in enforcing the law against Poles and
Jews which we deem to be a part of the established governmental plan
for the extermination of those races. He was an accessory to, and took
a consenting part in, the crime of genocide.
He is likewise guilty of a violation of the laws and customs of war
in connection with prosecutions under the Nacht und Nebel decree, and
he participated in the perversion of the laws relating to treason and
high treason under which Poles guilty of petty offenses were executed.
The proof of his guilt is not, however, dependent solely on captured
documents or the testimony of prosecution witnesses. He is convicted on
the basis of his own sworn statements. Defendant is entitled to respect
for his honesty, but we cannot disregard his incriminating admissions
merely because we respect him for making them.
There is much to be said in mitigation of punishment. Lautz was not
active in Party matters. He resisted all efforts of Party officials to
influence his conduct but yielded to influence and guidance from Hitler
through the Reich Ministry of Justice, believing that to be required
under German law. He was a stern man and a relentless prosecutor, but
it may be said in his favor that if German law were a defense, which it
is not, many of his acts would be excusable.
We find the defendant Lautz guilty as charged upon counts two and three
of the indictment.
_THE DEFENDANT METTGENBERG_
By his own sworn statement the defendant Wolfgang Mettgenberg frankly
and fully admits his connection with the Hitler Night and Fog decree.
His statements show that he exercised wide discretion and had extensive
authority over the entire plan from the time the Night and Fog prisoner
was arrested in occupied territory and continuously after his transfer
to Germany, his trial, and execution or imprisonment.
We will not reiterate the statements made by him in his sworn statement
and hereinabove quoted. Suffice it to say that Mettgenberg held the
position of Ministerialdirigent in Departments III and IV of the Reich
Ministry of Justice. In Department III, for penal legislation, he dealt
with international law, formulating secret, general, and circular
directives. He was regarded as an eminent authority on international
law. He handled Night and Fog cases and knew the purpose and procedure
in such cases. He knew that the decree was based upon the Fuehrer’s
order of 7 December 1941 to the OKW. He knew that an agreement
existed between the Gestapo, the Reich Ministry of Justice, the Party
Chancellery, and the OKW with respect to the purposes of the Night and
Fog decree and the manner in which such matters were to be handled.
The defendant von Ammon was Ministerial Councillor in Mettgenberg’s
subdivision and was in charge of the Night and Fog section as shown in
this judgment. The two acted together on doubtful matters and referred
difficult questions to competent officials in the Reich Ministry of
Justice and the Party Chancellery, since both of these offices had to
give their “agreement” in cases of malicious attacks upon the Reich
or Nazi Party or in the Night and Fog cases. The NN cases came from
the Wehrmacht but in some cases directly from the Gestapo. These cases
were assigned to Special Courts at several places in Germany and to
the People’s Court at Berlin by defendant von Ammon. Mettgenberg and
von Ammon were sent to the Netherlands occupied territory because
some German courts set up there were receiving Night and Fog cases in
violation of the decree that they should be transferred to Germany.
They held a conference at The Hague with the highest military justice
authority and the heads of the German courts in the Netherlands, which
resulted in a reference of the matter to the OKW at Berlin which agreed
with Mettgenberg and von Ammon that “the same procedure should be used
in the Netherlands as in other occupied territories, that is, that all
Night and Fog matters should be transferred to Germany.”
In Department IV for penal administration, Mettgenberg’s work consisted
of inspecting execution equipment. He witnessed one execution in
1944. He was entrusted with speeding up clemency applications because
prisoners were escaping during air raids. Reich Minister Thierack
called the defendant, Rothenberger, Under State Secretary, by telephone
at Berlin and instructed him to make decisions concerning the clemency
in death sentence cases presented by defendant Mettgenberg who made
“reports lasting hours,” and then Rothenberger made the decisions.
The evidence does not positively show that clemency cases presented
by Mettgenberg and passed upon by Rothenberger were NN cases. We
think, however, that the only conclusion that can be reached from
Mettgenberg’s testimony during the trial is that Rothenberger passed
upon all clemency matters presented to him by Mettgenberg which
included NN cases. Mettgenberg stated that he was appointed to speed
up clemency matters due to air raids and that he took the matter up
with the Reich Minister of Justice, Thierack, who at the time called
Rothenberger on the telephone and told him to receive and pass upon the
clemency matters submitted. Mettgenberg testified that he did present
clemency matters to Rothenberger by telephone conversations which
lasted for several hours and that Rothenberger then made the decisions.
The defendant Mettgenberg assumed the burden of defending the
illegality of the Night and Fog proceedings under the Ministry
of Justice not only for himself but for all defendants connected
therewith. He prefaced this defense with the following statement:
“Today I am still of the view which I expressed in my affidavit.
My view is that it was regrettable because the courts, in these
matters, could not completely do justice to their foremost
task, the finding of the truth. Now that I believe I have heard
everything and believe myself to be able to survey the whole
matter, I have to say that as concerns the various evils between
which one had to choose, a transfer of the NN cases to the
administration of justice was, after all, the lesser evil, so
that this emergency solution which was made was probably the
only possible solution.” (_Tr. pp. 6269–6270._)
With respect to the legal foundation for the NN cases, three laws or
decrees are presented as justifying the proceedings. The first is
article 161 of the Military Penal Code which dates back to the 1870’s
and which, as amended, provides:
“A foreigner or a German who, in a foreign territory occupied
by German troops, acts against German troops or their members
or against an authority established by order of the Fuehrer and
thereby commits an act which is punishable according to the laws
of the Reich, is to be punished, just as if that act would have
been committed by him within the territory of the Reich.”
Whether this law violates international law of war need not be
determined here because the defendants did not act under it in the
execution and enforcement of the Hitler Night and Fog decree. Nor does
this law authorize the execution and enforcement of any such decree.
The second legal ground presented is article 3, section 2 of the Code
of Penal Procedure of 17 August 1938 which provides for the punishment
of criminal acts committed in the areas of military operations in
occupied territory by foreigners or Germans and further provides that:
“If a requirement of warfare demands it, * * * they may turn
over the prosecution to the ordinary courts in the rear army
area.”
There can be no criticism of this law. It was not applied in any
respect in the Night and Fog cases; hence, it constitutes no defense
for the manner in which the Night and Fog decree was carried out.
The third legal foundation for the proceeding is based upon the claim
that the Hitler decree of 7 December 1941 was a legal regulation for
the handling of offenses against the Reich or against the occupation
forces of the German Army in occupied areas. With respect to this
decree we are convinced that it has no legal basis either under the
international law of warfare or under the international common law
as recognized by all civilized nations as heretofore set out in this
judgment.
The defendant Mettgenberg referred to and approved the testimony of
the defendant Schlegelberger which states “that the NN prisoners were
expected to be, and were, tried materially according to the same
regulations which would have been applied to them by the courts martial
in the occupied territories” and that, accordingly, “the rules of
procedure had been curtailed to the utmost extent.” This court martial
procedure was shown to have been used in the prosecution of NN persons
who had been charged with high treason or preparation of treason
against the Reich.
Mettgenberg testified as to the troubles the department had with the
Gestapo because the Gestapo insisted that they had already investigated
the facts as to each NN prisoner and that these facts should be
accepted without further trial. This practice was not acceptable to
the Ministry of Justice. As to other difficulties in securing proper
evidence, Mettgenberg testified:
“Even though investigations were first of all carried out in the
occupied territories before the NN prisoners were transferred to
Germany, yet it was a matter of course that that evidence was
not always without gaps.”
These “gaps” in the evidence were shown by [NG-261 and NG-264]
Prosecution Exhibits 334 and 335 in which the public prosecutor at
Katowice complained of the difficulty of securing sufficient proof due
to the utter secrecy of the proceedings. The Gestapo alone presented
the evidence by “rather dubious police transcripts” and “such police
records occasionally had been obtained by inadmissible means.”
Mettgenberg testified that defendant von Ammon made an official trip to
Upper Silesia to discuss these matters with the chief judge in Belgium
and northern France “to remedy that state of affairs.” This action did
not take place until 30 June 1944, which was only a few months before
the Night and Fog matters were taken out of the hands of the Ministry
of Justice, and all prisoners then held by the Ministry of Justice were
transferred to the Gestapo to be placed in concentration camps.
Mettgenberg also testified to the difficulties experienced with the
Gestapo arising out of the fact that the Gestapo transferred many of
these prisoners directly to concentration camps and thereby retained
control over them. Nothing was done about the fact that the police
took the NN prisoners into police custody and retained them in police
custody.
We find defendant Mettgenberg to be guilty under counts two and three
of the indictment. The evidence shows beyond a reasonable doubt that
he acted as a principal, aided, abetted, and was connected with the
execution and carrying out of the Hitler Night and Fog decree in
violation of numerous principles of international law, as has been
heretofore pointed out in this judgment.
_THE DEFENDANT VON AMMON_
From his own sworn statements we gain the following information
concerning the defendant von Ammon. He joined the SA in December 1933,
in which organization he held the rank of Scharfuehrer. He joined the
NSDAP in May 1937. He was called to the Reich Ministry of Justice as
of 1 January 1935, became a Landgerichtsrat on 1 February 1935, and
Landgerichtsdirektor on 1 July 1937. His main activity in the Ministry
during that period concerned “questions of international legal usage in
penal matters”
After the Austrian Anschluss he was employed as liaison officer of
Department III (penal matters) in connection with Department VIII
(Austria), in the Reich Ministry of Justice. He was consultant
in the department for the administration of penal law under
Ministerialdirektor Crohne. He was transferred to the Munich Court of
Appeals as Oberlandesgerichtsrat where he served until June 1940, at
which time he was recalled to the Reich Ministry of Justice. As of 1
March 1943 he was appointed Ministerial Counsellor in the Ministry of
Justice. He states (_NG-852, Pros. Ex. 55_):
“From 1942 onward I dealt mainly with Nacht und Nebel cases
in the occupied territories. In my capacity as consultant for
Nacht und Nebel cases I made several duty trips to the occupied
territories and took part in discussions in Paris and Holland
which dealt with questions of Nacht und Nebel proceedings.”
The broad scope and the variety of the official activities of von Ammon
may be illustrated by reference to reports which he made to officials
of the Ministry of Justice during the year 1944. On 14 January 1944
he reported at the Ministry upon “jurisdiction of Denmark”. On 10
February he reported to the minister on “Competence for Prosecution
of NN Cases.” On 31 May, under the heading “Submissions to the State
Secretary” (Klemm), he reported on “Action Against Stateless Jews,
Admission of Legal Procedure.” Under the heading “Reports to the State
Secretary” for 21 June 1944, he reported on “Pastoral Service for NN
Prisoners”, after which in handwriting appears the word “rejection”.
Under the heading “Submissions to the Minister” for 26 July, he
reported on “Proceedings of State Police in Lower Styria.” Under the
heading “Reports to the Ministers” of 5 October, he reported on “Taking
Over of Criminal Proceedings from the Eastern Districts.” Under the
heading “Formal Verbal Reports to the Minister” of 3 November 1944, he
reported on “Liquidation of Offenses from the Eastern Territories.” On
10 January 1945 it appears that he made a verbal report on the “Taking
Over Administration of Penal Justice of the Minister for the East.”
The prosecution introduced in evidence a captured document of 142
pages in length, containing lists of many hundreds of death sentences
which were submitted to the Minister of Justice and at times to State
Secretary Klemm for final disposition. The cases were classified
as “clear” or as “doubtful.” The former, “clear,” outnumbered the
latter. An examination of the document discloses that between 14
January 1944 and 16 November of the same year the defendant von Ammon
made twenty-four reports on cases in which persons from the occupied
territories had been sentenced to death under the Nacht und Nebel
procedure. The death sentences averaged more than one for every 3 days
of the entire period.
In a notice addressed to Under Secretary Rothenberger, and to Minister
Thierack, von Ammon reported that on 1 September 1942, in Kiel, Essen,
and Cologne cases were pending against 1,456 persons charged under the
Night and Fog decree.
In view of the fact that von Ammon was in charge of Nacht und Nebel
procedure from 1942 until the end of the war, it is clear that we
have in evidence only incomplete records of the activities of this
defendant in connection with the Night and Fog decree. The fragmentary
character of the captured documents which have been submitted renders
it impossible to give a complete picture of this criminal activity. The
illustrations which we have given and which cover only a portion of
the time involved will, however, serve as an indication of the scope
of the activities which were under the direction of the defendants
Mettgenberg and von Ammon. Von Ammon also participated in a lengthy
secret correspondence concerning the transfer of NN cases to the
Special Court at Oppeln and the necessity of allocating additional
judges and public prosecutors to that court in view of the resultant
increase in the volume of work.
The defendant von Ammon held an executive position of responsibility
involving the exercise of personal discretion. Within the ministry he
was in charge of the section which handled Night and Fog cases. The
defendant Mettgenberg stated that the Night and Fog section within his
subdivision was headed by von Ammon and that whenever von Ammon had
doubts concerning the handling of individual cases joint discussions
were held. We quote:
“When he had no doubts he could decide on matters himself.”
We have already set forth at length the statement of von Ammon
concerning his knowledge and activities and his misgivings concerning
the entire procedure. The defendants von Ammon and Mettgenberg were the
representatives of the Reich Ministry of Justice at a conference at
The Hague on 2 November 1943 concerning “New Regulations for Dealing
with Night and Fog Cases from the Netherlands”. Von Ammon states that
assurance was given by Mettgenberg and himself that close connection
would be maintained between the judicial authorities at Essen and the
German authorities in the Netherlands in the handling of NN cases. We
have already quoted a note signed by von Ammon wherein he remarked that
it was “rather awkward” that the defendants should learn the details of
their charges only during the trial and commented on the insufficiency
of the translation facilities in the trial of French NN prisoners. Von
Ammon is chargeable with actual knowledge concerning the systematic
abuse of the judicial process in these cases.
In respect to his other activities we refer to our general discussion
under the heading “Night and Fog.” We find the defendant von Ammon
guilty of war crimes and crimes against humanity under counts two and
three of the indictment.
_THE DEFENDANT JOEL_
The professional career of the defendant Guenther Joel in the Third
Reich proceeded at the same pace as his career as a Party man; in fact,
even before the war years his professional career merged with his
career in Nazi organizations, and to be more precise, in the SS and the
SD--the organization which the IMT judgment has declared to be criminal.
He became a member of the NSDAP on 1 May 1933 and entered the Ministry
of Justice as a junior public prosecutor (Gerichtsassessor) on 7
August 1933. In quick succession he became assistant public prosecutor
(1 September 1933), public prosecutor (1 January 1934), senior public
prosecutor (1 February 1935), and chief public prosecutor (1 November
1936).
Between August 1933 and October 1937, Joel was the chief of a newly
created subdepartment of the Reich Ministry of Justice, the Central
Public Prosecution (Zentralstaatsanwaltschaft). In October 1937 this
subdepartment was dissolved, but the Reich Minister of Justice,
Guertner, reserved the right to assign Joel as “Referent” for special
cases and subsequently made use of this right. After the dissolution
of the Central Public Prosecution, Joel worked as “Referent” in the
Ministry’s Penal Department III (later renumbered IV).
By a formal letter of appointment, dated 19 December 1937 and signed by
Minister Guertner, Joel was, in addition to his other duties, appointed
liaison officer between the Reich Ministry of Justice and the SS,
including the SD, as well as the Gestapo. A few months later, namely,
in a letter of 2 May 1938, signed by Heydrich, Joel was, effective 30
January 1938, admitted to the SS and, effective the same day, promoted
to the rank of SS Untersturmfuehrer and given the position of leader
(Fuehrer) in the SD Main Office (Security Service Main Office).
His SS personnel record shows how quickly he climbed to high
positions in the SS and the SD: on 11 September 1938 he became SS
Obersturmfuehrer; on 30 January 1939, SS Hauptsturmfuehrer; on 26
September 1940, SS Sturmbannfuehrer--holding all these ranks as leader
in the SD Main Office.
The record shows that in his capacity as SS officer Joel was, between
2 and 8 May 1939, sent on an official mission for the Security Office
(SD). An official letter from the Reich Leader of SS, Chief of the
Security Service Main Office, dated 28 April 1939, so notified the
Reich Minister of Justice. Again, on 4 July 1940, the Chief of the
Security Police and the Security Service informed the Reich Ministry of
Justice that Joel had been “put on the list of indispensable persons
on behalf of the Reich Leader SS and Chief of the German Police,”
thereby reserving to the Security Police and the Security Service the
indispensable service of Joel and freeing him from military service.
But in his answer, dated 11 July 1940, to this request, Freisler, Under
Secretary of the Ministry of Justice, asked:
“To refrain from calling upon SS Captain Joel, senior public
prosecutor, for taking over duties for the Reich Leader SS and
Chief of the German Police. Dr. Joel, as you know, is entrusted
with extremely important reports at my ministry.”
The nature of these reports will be later discussed.
On 1 May 1941 Joel was promoted to ministerial counsellor. He remained
with the Reich Ministry of Justice until 12 May 1943.
The reason for his leaving the Ministry was that on 7 May 1943 he was
appointed attorney general to supreme provincial court of appeals in
Hamm (Westphalia). By letter dated Fuehrer Headquarters, 12 May 1943,
Bormann, Chief of the Party Chancellery (sentenced to death in absentia
by the IMT) personally confirmed his appointment. It should be added
that a few weeks earlier, by letter of 13 March 1943 to Reich Minister
of Justice, Thierack, the Gauleiter of Westphalia, Alfred Meyer, also
formally endorsed Joel’s appointment for attorney general at Hamm, in
his own name and in the name of deputy Gauleiter Hoffmann, in charge of
the administration of the Gau Westphalia-South.
Shortly after this new appointment, namely, as of 9 November 1943,
Joel was promoted to the high rank of SS Obersturmbannfuehrer, which
appointment was approved by Himmler. His political and Party career
went hand in hand with his professional career, and his promotions
were made by or approved by such high ranking Nazi officials as
Himmler, Bormann, Heydrich, Thierack, and Freisler--whose desperate and
despicable characters are known to the world; the record in this case
is replete with many atrocities and crimes committed by these leaders
and members of organizations which have been declared criminal by the
IMT. Thus, Joel continued to the end as the confidant and trusted
protegé of these most outstanding and notorious criminals of all time.
It will be remembered that ever since December 1937, Joel in his
several capacities at the Ministry of Justice had, in addition to his
other duties, acted as liaison officer between the ministry and the SS,
the SD, and the Gestapo. To this position a successor, Chief Public
Prosecutor Franke, was appointed on 1 August 1943. Joel claims that
in fact he had ceased to act as such liaison officer when Thierack
assumed office as Reich Minister of Justice in August 1942. However,
the record shows that even after that time Joel made numerous reports,
some of which are mentioned below, relating to the execution of death
penalties imposed under the law against Poles and Jews, and relating
to the transfer of Poles who had received mild sentences, or had been
acquitted, or had served their term, to the Gestapo. These were the
very duties which he had to perform in the Reich Ministry as liaison
officer. Even after Thierack’s appointment as minister, Joel was
connected with the interests of the Reich Security Office, and his work
was productive and satisfactory in the carrying out of the plan or
scheme of racial persecution and extermination of Poles and Jews. On
17 August 1943, defendant Rothenberger inducted defendant Joel into his
office as general public prosecutor at Hamm, praised him in the highest
terms, and referred to him as an SS member and also to his rank of SS
Obersturmbannfuehrer. As late as 1945, when the question of military
service for Joel again arose, Gauleiter Hoffmann of South Westphalia
intervened in a letter to the Reich Ministry of Justice, referring to
the fact that Joel was known to be a member of the Waffen SS, and that
if he were to go into military service he would undoubtedly be assigned
to the SS activities.
Under our discussion of the Night and Fog decree, reference is made
to several documents which show Joel as having aided, abetted,
participated in, and having been connected with, the Night and Fog
scheme or plan.
Rudolf Lehmann, lieutenant general of the legal department of the armed
forces, stated under oath:
“These cases were, as I seem to remember, handled by von Ammon,
also of that same division of the Reich Ministry of Justice.
General Public Prosecutor Joel, who was in the Ministry of
Justice until sometime in 1943, would be able to supply further
details on this ‘Nacht und Nebel’ matter. Joel was general
public prosecutor in Hamm, and a court handling ‘Nacht und
Nebel’ cases was located at Hamm. Other courts handling ‘Nacht
und Nebel’ cases were located at Cologne, Breslau, and at one or
two other places unknown to me but which can be named by Joel.”
Joel became chief prosecutor of the court of appeals in Hamm, covering
all of Westphalia and the district of Essen, on 17 August 1943, which
office he continued to hold until the end of the war. In this position
he was in charge of the Night and Fog program for the Special Courts in
Hamm and Essen until 15 March 1944 when these courts were transferred
farther east to Oppeln in the Katowice district. Reports of Joel show
that he attended conferences both in Hamm and in Belgium on Night and
Fog matters. The record also shows that the district of which he was
the highest, and therefore the most responsible, prosecuting authority
was, in area and population, one of the largest in Germany. He had
under his supervision the senior public prosecutors and their staffs at
the Special Courts at Hamm and in Essen. It was his task to supervise
the work of all prosecutors assigned to his office. The Special Courts
in Hamm and Essen tried more Night and Fog cases than the combined
total of all other Special Courts and the People’s Court. In law, Joel
must be held to have had the responsibility of these cases. The record
further shows that Joel assumed this responsibility.
A letter addressed to Joel, dated 20 January 1944, stated that in the
future all Night and Fog persons who were upon trial acquitted or who
had served their sentences, must be turned over for custody to the
Gestapo.
A letter dated 26 January 1944 from Joel to the Reich Minister of
Justice complained about the delay which the defendant Lautz, chief
prosecutor at the People’s Court, caused by his failure to return files
in NN cases. Joel pointed out that 84 Night and Fog prisoners who had
been held near Hamm since 1941 were still there.
In November 1943 defendants von Ammon and Mettgenberg came to Hamm
enroute back to Berlin from the conferences they had attended in
Holland. The purpose of their visit to Joel was to determine whether
there was any available space in prison for the keeping of additional
Night and Fog prisoners to be transported from the Netherlands. Joel
assured them that more prisoners could be accommodated and even opposed
the view of his Oberlandesgericht who stated they should not be sent
to the Hamm area. They were sent to that area. In December 1943 Joel
attended a conference in Brussels which he reported upon after his
return to Hamm, pertaining to Night and Fog prisoners who were sent
from Belgium.
The categorical denial of Joel of ever having transferred an NN
prisoner or of ever having tried an NN prisoner or of ever having
issued an order to transfer an NN prisoner who had been acquitted
or who had served his sentence, to Gestapo custody is no defense of
his activities in connection with the custody, trial, execution, or
transfer of NN prisoners after they had served their sentences or had
been acquitted to the Gestapo.
The high office which he held required him to supervise and properly
handle Night and Fog cases filed in the courts where he was chief
prosecutor. He had numerous assistants whom he necessarily had to
entrust with the prosecution and carrying out of the Night and Fog
program and cases arising thereunder. The fact that Joel did not
actually try the Night and Fog cases himself has no significance.
He did supervise the men who tried and had executed some of them
and imprisoned others and transferred others who were not guilty
of any crime or who had served their sentence, to the Gestapo and
concentration camps.
The defendant Joel is chargeable with knowledge that the Night and
Fog program from its inception to its final conclusion constituted a
violation of the laws and customs of war.
We turn now to the other activities here under indictment of the
defendant Joel.
We direct attention to a document from the Reich Ministry of Justice
which contains the program for conferences among the officials of the
Ministry. In each instance the name of the official who is to report
is set opposite the subject for discussion. From this we gain some
information as to the scope of the work assigned to Joel.
According to this program Joel was scheduled to report upon the
following subjects. We quote:
“Nullification plea, Maslanka.
“Nullification plea, Beyer Bosich (Italian) article 4, VVO.
“Matter of clemency Pongratz (70 year old farmer, non-delivery).
“Handing-over of Poles to the State Police (cases Bartosinski
and Marcziniak).
“Lenzinger Zoowoll AG (Lenzinger Artificial Wool, Ltd.).
“Treatment of Jews and Poles, as well as Russians. Internal
order of the Reich Leader SS.
“Bartosinski, Pole, shall be transferred from criminal custody
(3 years’ penal camp on account of sexual intercourse) to State
Police.
“Marasyak, Pole, wanted to marry German maid in France.
Detention pending investigation. State Police demands him turned
in.
“Should there be any reports during the war on the question of
mercy for Poles who have been sentenced to death on account of
the possession of weapons and other offenses and who have been
pardoned to 5 years’ penal servitude with the reserve of an
investigation after 2 to 3 years?
“Extortion of food ration cards, Mrs. Ritter. Chorlow, Russian
from the district of Kursk, article 2, VVO. State Police wants
to punish with police measures.
“Jakubowski, Pole, has raped German woman. He has been executed
by hanging. The criminal police asks for a burial certificate.
“Uschako, workman, from the East, from old Soviet Russian
territory, has stolen a jacket. The Secret State Police sent him
to a labor education camp and requests cancellation of the order
to inflict 1-month imprisonment.”
Another significant incident relates to the case of two “deserving
National Socialists.” Our source of knowledge is a brief document
signed by the defendant Joel. The facts stated are that a policeman and
a temporary mayor “shot two Polish priests for no reason other than
hatred for the Catholic clergy.” On 11 June 1940, the two murderers
were sentenced to 15 years’ penal servitude for manslaughter. Joel
states that more than 2 years of the sentence had been served and that
the Reich Leader SS asked for pardon. The document concludes as follows:
“Penal servitude changed to 5 years’ imprisonment each.
Postponement of the serving of the sentence and of the
defamatory consequences for the duration of stay in a Waffen SS
probation unit. Further pardon in the case of the probation.
(Signed) Dr. Joel”
As early as 1937 it is clear that Joel had knowledge of conditions in
concentration camps. A document marked “For the time of circulation:
Secret! to III-a: After circulation in sealed envelope to the Gestapo
general files”, contains the following:
“2. As far as reports concerning executions when escaping from
concentration camps, etc., suicides in K.Z.’s (concentration
camps) arrive, they shall continue to be dealt with by the
specialist competent for the respective subject. The general
consultant for political criminal matters, however, is to be
informed of the reports. They are to be submitted to him [at]
once.”
This order was circulated to all specialists for political criminal
matters. Joel was listed as a political specialist.
An official report on a meeting of the presidential board of 1 February
1939 shows that a report was given by the Chief Public Prosecutor on
developments in connection with the events of 9 to 11 November 1938
(the Jewish pogrom). We quote:
“The Reich Minister of Justice and Senior Public Prosecutor Joel
pointed out that it was impossible, of course, to handle this
matter in the usual judicial manner; if the top men disregarded
legal principles, it was impossible to prosecute people
concerned with the execution. For instance, the viewpoint of
violation of the public peace should be dropped. This is legally
justified _inter alia_ by the fact that the culprits were
not conscious of any violation, since they were acting under
orders. As far as the criminal offenses committed on that
occasion are concerned, trifles should be dropped. Otherwise,
however, proceedings can only be quashed by the Fuehrer, whereas
serious criminal offenses such as rape and race defilement must
be prosecuted. The order to prosecute is issued in any case by
the minister after the culprits, if they are members of the
Party or of any organization, have been excluded by a special
department of the Supreme Party Tribunal in Berlin.”
It is self-evident that if prosecution was to take place only after a
Party tribunal had excluded them, they would live a long and happy life
of freedom.
Defendant Joel became a Referent in the Reich Ministry of Justice with
authority and duty to review penal cases from the Incorporated Eastern
Territories after the occupation of Poland. In this capacity he handled
many of the cases tried pursuant to the decree against Poles and Jews.
In defense of these acts, Joel testified that “he felt obligated by the
existing laws and so complied with them.” Joel did not have the same
view as other officials that after the surrender of the Polish nation
the nationals of the annexed part of Poland became German nationals. He
testified that such a Polish citizen after 1 September 1939 remained a
Polish national and that “a Polish national is never a German.” Joel
frankly admitted that he knew he was not dealing with Germans but with
foreign nationals.
In his capacity as Referent for the Incorporated Eastern Territories
Joel, as liaison officer between the Reich Ministry of Justice and
the Gestapo, took part in conferences with others from Department IV
concerning the disposition of such Jewish and Polish cases. In one
instance he reported having discussed an order of Himmler’s as to
the treatment Poles and Jews should receive. In another instance he
reported ordering the transfer of Poles who had been sentenced to a
penal camp for 3 years to the Gestapo.
As a witness, Schlegelberger testified concerning transfers to the
police, which he described as “a very sad chapter for anyone who has a
sense of justice.” Guertner protested against this procedure and made
compilations of press reports concerning executions by the police.
“Lammers actually submitted these compilations to Hitler but
told Guertner later Hitler had said that he had not given
a general directive to carry out these shootings, but in
individual cases he could not do without these measures because
the courts, that was military courts as well as civil courts,
were not able to take care of the special conditions as created
by the war. And, Lammers at the same time announced that Hitler
in a further case had already ordered the execution by shooting.”
Schlegelberger testified further that after an order had been made for
the transfer of a prisoner to the police, there was a time limit of 24
hours, at the end of which the police were required to report that the
order had been executed. Schlegelberger states that Guertner charged
the defendant Joel with the mission of representing the Ministry of
Justice with the police in connection with these transfers. It appears
that the Ministry of Justice, through Joel, was able to intervene in
some cases and to prevent the transfers. Schlegelberger testified:
“* * * the attempts to intervene on the part of the Ministry of
Justice were successful in some cases but, if all possibilities
had been exhausted, and if in spite of that he had not
succeeded in having the order issued by the police withdrawn,
nothing was left but to issue the instructions to the executing
authority not to offer any resistance but to hand the man over
to the police when they requested him.”
Notwithstanding the reluctance with which the officials of the Ministry
of Justice acted, it appears from the foregoing that they did cooperate
in the transfer of prisoners to the police.
From 10 September 1942 to March 1943, Joel reviewed 105 death sentences
passed by courts in the Incorporated Eastern Territories and in most
cases gave final authorization for their execution.
In his capacity as such Referent, Joel reviewed and passed upon 16
death sentences of Poles who had committed alleged crimes against the
Reich or the German occupation forces. One of these Poles was born
in Cleveland, Ohio, in the United States, and his death sentence was
commuted to life imprisonment because Joel was fearful his execution
would involve the Reich in international complications. The remaining
15 Poles were executed.
As Referent, Joel was shown by captured official documents to have had
knowledge that many Jewish and Polish political prisoners were being
executed under the law against Jews and Poles. This matter was called
to his attention because of a dispute as to who should handle the
corpses of the executed prisoners. One main difficulty was that, under
Himmler’s orders, these corpses were to be turned over to the Secret
Police for disposition. The mayor and police of Posen [Poznan] refused
to handle the corpses of Poles and Jews who were not executed as
political prisoners. Joel was thereupon instructed to handle the matter
temporarily and to work out a permanent plan for such burials, which he
later assisted in doing.
As Referent in the department of justice and as liaison officer between
the department and the SS, Joel obtained extensive information and
exercised far-reaching power in the execution of the law against Jews
and Poles. He therefore took an active part in the execution of the
plan or scheme for the persecution and extermination of Jews and Poles.
Concerning Joel’s membership in the SS and SD, a consideration of all
of the evidence convinces us beyond a reasonable doubt that he retained
such membership with full knowledge of the criminal character of those
organizations. No man who had his intimate contacts with the Reich
Security Main Office, the SS, the SD, and the Gestapo could possibly
have been in ignorance of the general character of those organizations.
We find defendant Joel guilty under counts two, three, and four.
_THE DEFENDANT ROTHAUG_
Oswald Rothaug was born 17 May 1897. His education was interrupted
from 1916 to 1918 while he was in the army. He passed the final
law examination in 1922 and the State examination for the higher
administration of justice in 1925.
He joined the NSDAP in the spring of 1938 and the membership was made
effective from May 1937.
Rothaug was a member of the National Socialist Jurists’ League and the
National Socialist Public Welfare Association. In his affidavit he
denies belonging to the SD. However, the testimony of Elkar and his own
admission on the witness stand establishes that he was an “honorary
collaborator” for the SD on legal matters.
In December 1925 he began his career as a jurist, first as an
assistant to an attorney in Ansbach and later as assistant judge at
various courts. In 1927 he became public prosecutor in Hof in charge
of criminal cases. From 1929 to 1933 he officiated as counsellor at
the local court in Nuernberg. In June 1933 he became senior public
prosecutor in the public prosecution in Nuernberg. Here he was the
official in charge of general criminal cases, assistant of the Chief
Public Prosecutor handling examination of suspensions of proceedings
and of petitions for pardon. From November to April 1937 he officiated
as counsellor of the district court in Schweinfurt. He was legal
advisor in the civil and penal chamber and at the Court of Assizes, as
well as chairman of the lay assessors’ court. From April 1937 to May
1943 he was director of the district court in Nuernberg, except for a
period in August and September of 1939 when he was in the Wehrmacht.
During this time he was chairman of the Court of Assizes, of a penal
chamber, and of the Special Court.
From May 1943 to April 1945 he was public prosecutor of the public
prosecution at the People’s Court in Berlin. Here, as head of
Department I he handled for a time cases of high treason in the
southern Reich territory, and from January 1944 cases concerning the
undermining of public morale in the Reich territory.
Crimes charged in the indictment, as heretofore stated in this opinion,
have been established by the evidence in this case. The questions,
therefore, to be determined as to the defendant Rothaug are: first,
whether he had knowledge of any crime so established; and second,
whether he was a participant in or took a consenting part in its
commission.
Rothaug’s sources of knowledge have, with those of all the defendants,
already been pointed out. But Rothaug’s knowledge was not limited
to those general sources. Rothaug was an official of considerable
importance in Nuernberg. He had many political and official contacts;
among these--he was the friend of Haberkern, Gau inspector of the
Gau Franconia; he was the friend and associate of Oeschey, Gau
legal advisor for the Gau Franconia; and was himself Gauwalter of
the Lawyers’ League. He was the “honorary collaborator” for the SD.
According to the witness Elkar, [he was] the agent of the SD for
Nuernberg and vicinity, this position was more important than that of
a confidential agent, and an honorary collaborator was active in SD
affairs. He testifies that Rothaug took the SS oath of secrecy.
Whether Rothaug knew of all the aspects of the crimes alleged, we need
not determine. He knew of crimes as established by the evidence, and it
is the function of this Tribunal to determine his connection, if any,
therewith.
The defendant is charged under counts two, three, and four of the
indictment. Under count four he is charged with being a member of the
Party Leadership Corps. He is not charged with membership in the SD.
The proof as to count four establishes that he was Gauwalter of the
Lawyers’ League. The Lawyers’ League was a formation of the Party and
not a part of the Leadership Corps as determined by the International
Military Tribunal in the case against Goering, et al.
As to counts two and four of the indictment, from the evidence
submitted, the Tribunal finds the defendant not guilty. The question of
the defendant’s guilt as to count three of the indictment remains to be
determined.
The evidence as to the character and activities of the defendant is
voluminous. We shall confine ourselves to the question as to whether
or not he took a consenting part in the plan for the persecution,
oppression, and extermination of Poles and Jews.
His attitude of virulent hostility toward these races is proved
from many sources and is in no wise shaken by the affidavits he has
submitted on his own behalf.
The evidence in this regard comes from his own associates--the judges,
prosecutors, defense counsel, medical experts, and others with whom he
dealt. Among, but not limited to these, we cite the evidence of Doebig,
Ferber, Bauer, Dorfmueller, Elkar, Engert, Groben, and Markl. In
particular the testimony of Father Schosser is important. He testified
as to many statements made by the defendant Rothaug during the trial
of his own case, showing the defendant’s hostility to Poles and his
general attitude toward them. He stated that concerning the Poles in
general, Rothaug expressed himself in the following manner:
“If he (Rothaug) had his way, then no Pole would be buried in a
German cemetery, and then he went on to make the remark which
everybody heard in that courtroom--that he would get up from his
coffin if there was a Pole being buried near to him. Rothaug
himself had to laugh because of this mean joke, and he went on
to say, ‘You have to be able to hate, because according to the
Bible, God is a hating God.’”
The testimony of Elkar is even more significant. He testifies that
Rothaug believed in severe measures against foreigners and particularly
against Poles and Jews, whom he felt should be treated differently
from German transgressors. Rothaug felt there was a gap in the law in
this respect. He states that Rothaug asserted that in his own court he
achieved this discrimination by interpretation of existing laws but
that other courts failed to do so. Such a gap, according to Rothaug,
should be closed by singling out Poles and Jews for special treatment.
Elkar testifies that recommendations were made by the defendant
Rothaug, through the witness, to higher levels and that the subsequent
decree of 1941 against Poles and Jews conformed to Rothaug’s ideas as
expressed and forwarded by the witness Elkar through SD channels to the
RSHA.
This animosity of the defendant to these races is further established
by documents in this case which show that his discrimination against
these races encompassed others who he felt lacked the necessary
harshness to carry out the policy of the Nazi State and Party toward
these people.
In this connection the communication of Oeschey to Deputy Gauleiter
Holz, concerning Doebig, is worthy of note. In this communication many
charges were made against Doebig for his failure to take action against
officials under him who had failed to carry out the Nazi programs
against Jews and Poles. Oeschey testified that these charges were
copied from a letter submitted to him by the defendant Rothaug and that
the defendant assumed responsibility for these charges. Rothaug denies
that he assumed responsibility or had anything to do with the charges
made, except in one immaterial instance. However, in the light of the
circumstances themselves, the Tribunal accepts Oeschey’s testimony
in this regard, particularly in view of the unimpeached affidavit
of Oeschey’s secretary to the effect that these charges were copied
directly by her from a letter of Rothaug’s.
Documentary proof of Rothaug’s attitude in this respect is further
found in the records of cases tried by him which hereafter will be
considered.
Proof as to his animus is not shaken by his own testimony. It is
confirmed by his testimony. He states:
“In my view, by introduction of the question of the so-called
incredibility of Poles, the whole problem is shifted onto
another plane. It is a matter of course that a nation, which
has been subjected by another nation, and which is in a state
of stress--that a citizen of such a country which had been
subjected to another _vis-à-vis_ the victorious nation,
finds himself in quite a different moral-ethical relationship.
It is useless to shut your eyes against reality. Of course,
he finds himself in a different moral relationship from the
relationship in which a German citizen would find himself. It is
so natural there is no point in ignoring it. There is no need to
lie.”
His explanations as to his feeling toward Poles, given in connection
with the Schosser arrest and trial are also most enlightening but too
extensive to quote here.
Concerning his participation in the Nazi policy of persecution
and extermination of persons of these races, we shall confine our
discussions to three cases which were tried by Rothaug as presiding
judge.
The first case to be considered is that of Durka and Struss. Our
knowledge of this case is based primarily upon the evidence of Hans
Kern, the defense counsel of one of these defendants; Hermann Markl,
the prosecutor in the case; and the testimony of the defendant Rothaug.
The essential facts are in substance as follows: Two Polish girls--one,
according to the testimony of Kern, 17 years of age, the other
somewhat older--were accused of starting a fire in an armament plant
in Bayreuth. This alleged fire did not do any material damage to the
plant, but they were in the vicinity when it started and were arrested
and interrogated by the Gestapo. Both gave alleged confessions to
the Gestapo. Almost immediately following this occurrence, they were
brought to Nuernberg by the Gestapo for trial before the Special Court.
Upon their arrival the prosecutor in the case, Markl, was directed to
draw up an indictment based upon the Gestapo interrogation. This was at
11 o’clock of the day they were tried.
The witness Kern was summoned by the defendant Rothaug to act as
defense counsel in the case approximately 2 hours before the case came
to trial. He informed Rothaug that he would not have time to prepare a
defense. According to Kern, Rothaug stated that if he did not take over
the defense, the trial would have to be conducted without a defense
counsel. According to Rothaug, he told Kern that he would get another
defense counsel. In either event the trial was to go on at once.
The trial itself, according to Kern, lasted about half an hour;
according to the defendant, approximately an hour; according to Markl,
it was conducted with the speed of a court martial.
The evidence consisted of the alleged confessions which one of the
defendants repudiated before the court. Rothaug states that he
thereupon called the Gestapo official who had obtained these alleged
confessions and questioned him under oath. According to Rothaug the
Gestapo official stated that the interrogations were perfectly regular.
There was also a letter in evidence which it was said the defendants
had tried to destroy before their capture. The witness Kern stated on
cross-examination that this letter had little materiality.
The defendant attempts to justify the speed of this trial upon
the legal requirements in existence at this time. He states, in
contradiction to the other witnesses, that a clear case of sabotage
was established. This Tribunal is not inclined to accept the defendant
Rothaug’s version of the facts which were established. Under the
circumstances and in the brief period of the trial, the Tribunal does
not believe the defendant could have established those facts from
evidence.
According to the witness Kern, one of the defendants was 17 years of
age. This assertion as to age was not disputed. A German 18 years of
age or thereunder would have come under the German Juvenile Act and
would not have been subject to trial before a Special Court or to
capital punishment. Whatever the age of the defendants in this case,
they were tried under the procedure described in the ordinance against
Poles and Jews which was in effect at this time, by a judge who did not
believe the statements of Polish defendants, according to the testimony
in this case. These two young Polish women were sentenced to death and
executed 4 days after trial. In the view of this Tribunal, based upon
the evidence, these two young women did not have what amounted to a
trial at all but were executed because they were Polish nationals in
conformity with the Nazi plan of persecution and extermination.
The second case to be considered is the Lopata case. This was a case
in which a young Polish farmhand, approximately 25 years of age, is
alleged to have made indecent advances to his employer’s wife.
He first was tried in the district court at Neumarkt. That court
sentenced him to a term of 2 years in the penitentiary. A nullity plea
was filed in this case before the Reich Supreme Court, and the Reich
Supreme Court returned the case to the Special Court at Nuernberg for
a new trial and sentence. The Reich Supreme Court stated that the
judgment of the lower court was defective, since it did not discuss in
detail whether the ordinance against public enemies was applicable and
stated that if such ordinance were applicable--a thing which seemed
probable, a much more severe sentence was deemed necessary.
The case was therefore again tried in violation of the fundamental
principles of justice that no man should be tried twice for the same
offense.
In the second trial of the case, the defendant Rothaug obligingly found
that the ordinance against public enemies had been violated.
In its reasons, the court states the facts on which the verdict was
based as follows:
“The wife of farmer Schwenzl, together with the accused and a
Polish girl, chopped straw in the barn. The accused was standing
on the righthand side of the machine to carry out the work.
Suddenly, in the middle of the work, the accused, without saying
anything, touched with his hand the genitals of the wife of
farmer Schwenzl, through her skirt. When she said, after this
unexpected action of the defendant, ‘You hog, do you think I am
not disgusted about anything; you think you can do that because
my husband is sick,’ the accused laughed and in spite of this
dissuasion touched again the genitals of the farmer’s wife above
her skirt. The wife of farmer Schwenzl slapped him after that.
In spite of this, the accused continued with his impertinent
behavior; for a third time he touched the genitals of the
farmer’s wife above the skirt.
* * * * * * *
“The accused did not make a complete confession. He states that
he only once, for fun, touched the farmer’s wife’s genitals
above the skirt.
“The court is convinced, on account of the testimony given
by the witness Therese Schwenzl, who makes a trustworthy
impression, that the affair occurred exactly as described by the
witness. Therefore, its findings were arrived at according to
the testimony given by her.”
The Polish woman who was present at the time of this alleged assault
is not listed as a witness. Rothaug has stated in his testimony before
this Court that he never had a Polish witness.
As for the reasons for bringing the defendant under the public enemy
ordinance, the following facts are stated in the reasons for the
verdict: Lopata having had some minor difficulties with the farmer
Schwenzl refused to eat his noon meal and induced the Polish servant
maid to do likewise. Thereupon, farmer Schwenzl, his employer, called
him to account in the stable. The defendant put up resistance to the
farmer’s “admonitions” by arming himself with a dung fork. It is
further stated that the Pole, at the threshold of the farm hallway,
again turned against his employer and let him go only when attacked by
the sheep dog which the farmer kept.
As to the actual reasons for the sentence of this Polish farmhand to
death, the following paragraphs are more significant:
“Thus, the defendant gives the impression of a thoroughly
degenerate personality, which is marked by excitability
and a definite trend to mendacity, or to lying. The whole
inferiority of the defendant, I would say, lies in the sphere of
character and is obviously based on his being a part of Polish
subhumanity, or in his belonging to Polish subhumanity.
“The drafting of men into the armed forces effected a heavy
labor shortage in all spheres of life at home, last but not
least in agriculture. To compensate this, Polish laborers, among
others, had to be used to a large extent, mainly as farmhands.
“These men cannot be supervised by the authorities to such an
extent as would be necessary due to their insubordinate and
criminal disposition.
* * * * * * *
“The action of the defendant constitutes a considerable
disturbance of the peace of the persons immediately concerned
by his mean actions. The rural population has the right to
expect that the strongest measures will be taken against such
terrorization by foreign elements. But beyond disregarding
the honor of the wife of farmer Schwenzl, the attack of the
defendant is directed against the purity of the German blood.
Looking at it from this point of view, the defendant showed such
insubordination within the German living space that his action
has to be considered as especially significant. * * *
“Accordingly, as outlined in article III, paragraph 2, second
sentence of the ordinance against Poles and Jews, the crime
of the defendant, which in connection with his other behavior
shows a climax of unheard-of impudence, has to be considered
as especially serious so that the death sentence had to be
passed as the only just expiation, which is also necessary in
the interest of the Reich security to deter Poles of similar
mentality.”
The defendant was sentenced under the ordinance against Poles and Jews
in the Incorporated Eastern Territories. The verdict was signed by the
defendant Rothaug, and an application for clemency was disapproved by
him.
When on the witness stand, the defendant Rothaug was asked the
following question by the court:
“* * * if Lopata had been a racial German, all other facts being
the same as they were in the Lopata case, is it your judgment
that the nullity plea would have been invoked and that the
Supreme Court would have ordered the case sent back to you for
another trial? I should like your opinion on that.”
Rothaug replied as follows to this question:
“Mr. President, this question is very interesting, but I cannot
even imagine that possibility even theoretically, because the
very elements which are of the greatest importance could not be
the same in the case of a German.”
Lopata was sentenced to death and subsequently executed.
The third case to be considered is that of Leo Katzenberger. The record
in this case shows that Lehmann Israel Katzenberger, commonly called
Leo Katzenberger, was a merchant and head of the Jewish community
in Nuernberg; that he was “sentenced to death for an offense under
paragraph 2, legally identical with an offense under paragraph 4 of the
decree against public enemies in connection with the offense of racial
pollution.” The trial was held in the public session on 13 March 1942.
Katzenberger’s age at that time was over 68 years.
The offense of racial pollution with which he was charged comes under
article 2 of the Law for the Protection of German Blood and Honor. This
section reads as follows:
“Sexual intercourse (except in marriage) between Jews and German
nationals of German or German-related blood is forbidden.”
The applicable sections of the Decree Against Public Enemies reads as
follows:
“Section 2
“Crimes During Air Raids
“Whoever commits a crime or offense against the body, life, or
property, taking advantage of air raid protection measures, is
punishable by hard labor of up to 15 years, or for life, and in
particularly severe cases, punishable by death.
* * * * * * *
“Section 4
“Exploitation of the State of War a Reason
for More Severe Punishment
“Whoever commits a criminal act exploiting the extraordinary
conditions caused by war is punishable beyond the regular
punishment limits with hard labor of up to 15 years, or for
life, or is punishable by death if the sound common sense of the
people requires it on account of the crime being particularly
despicable.”
The evidence in this case, aside from the record, is based primarily
upon the testimony of Hans Groben, the investigating judge who first
investigated the case; Hermann Markl, the official who prosecuted the
case; Karl Ferber, who was one of the associate judges in the trial;
Heinz Hoffmann, who was the other associate judge in the trial; Armin
Baur, who was medical expert in the trial; Georg Engert, who dealt with
clemency proceedings; and Otto Ankenbrand, another investigating judge.
The salient facts established in connection with this case are in
substance as follows: Sometime in the first half of the year 1941 the
witness Groben issued a warrant of arrest against Katzenberger, who was
accused of having had intimate relations with the photographer Seiler.
According to the results of the police inquiry, actual intercourse had
not been proved, and Katzenberger denied the charge. Upon Groben’s
advice, Katzenberger agreed that he would not move against the
warrant of arrest at that time but would await the results of further
investigation. These further investigations were very lengthy, although
Groben pressed the public prosecutor for speed. The police, in spite
of their efforts, were unable to get further material evidence, and it
became apparent that the way to clarify the situation was to take the
sworn statement of Seiler, and this was done.
In her sworn statement she said that Katzenberger had known both her
and her family for many years before she had come to Nuernberg and
that his relationship to her was a friendly and fatherly one and
denied the charge of sexual intercourse. The evidence also showed that
Katzenberger had given Seiler financial assistance on various occasions
and that he was administrator of the property where Seiler lived, which
was owned by a firm of which he was a partner. Upon Seiler’s statement,
Groben informed Dr. Herz, counsel for Katzenberger, of the result and
suggested that it was the right time to move against the warrant of
arrest.
When this was done, Rothaug learned of it and ordered that the
Katzenberger case be transferred from the criminal divisional court
to the Special Court. The first indictment was withdrawn, and another
indictment was prepared for the Special Court.
The witness Markl states that Rothaug dominated the prosecution,
especially through his close friendship with the senior public
prosecutor, Dr. Schroeder, who was the superior of Markl.
The indictment before the Special Court was prepared according to the
orders of Rothaug, and Katzenberger was not charged only with race
defilement in this new indictment, but there was also an additional
charge under the decree against public enemies, which made the death
sentence permissible. The new indictment also joined the Seiler woman
on a charge of perjury. The effect of joining Seiler in the charge
against Katzenberger was to preclude her from being a witness for
the defendant, and such a combination was contrary to established
practice. Rothaug at this time told Markl that there was sufficient
proof of sexual intercourse between Seiler and Katzenberger to convince
him, and that he was prepared to condemn Katzenberger to death. Markl
informed the Ministry of Justice of Rothaug’s intended procedure
against Katzenberger and was told that if Rothaug so desired it, the
procedure would be approved.
Prior to the trial, the defendant Rothaug called on Dr. Armin Baur,
medical counsellor for the Nuernberg Court, as the medical expert for
the Katzenberger case. He stated to Baur that he wanted to pronounce a
death sentence and that it was, therefore, necessary for the defendant
to be examined. This examination, Rothaug stated, was a mere formality
since Katzenberger “would be beheaded anyhow.” To the doctor’s reproach
that Katzenberger was old, and it seemed questionable whether he could
be charged with race defilement, Rothaug stated:
“It is sufficient for me that the swine said that a German girl
had sat upon his lap.”
The trial itself, as testified to by many witnesses, was in the nature
of a political demonstration. High Party officials attended, including
Reich Inspector Oexle. Part of the group of Party officials appeared in
uniform.
During the proceedings, Rothaug tried with all his power to encourage
the witnesses to make incriminating statements against the defendants.
Both defendants were hardly heard by the court. Their statements were
passed over or disregarded. During the course of the trial, Rothaug
took the opportunity to give the audience a National Socialist lecture
on the subject of the Jewish question. The witnesses found great
difficulty in giving testimony because of the way in which the trial
was conducted, since Rothaug constantly anticipated the evaluation of
the facts and gave expression to his own opinions.
Because of the way the trial was conducted, it was apparent that the
sentence which would be imposed was the death sentence.
After the introduction of evidence was concluded, a recess was taken,
during which time the prosecutor Markl appeared in the consultation
room and Rothaug made it clear to him that he expected the prosecution
to ask for a death sentence against Katzenberger and a term in the
penitentiary for Seiler. Rothaug at this time also gave him suggestions
as to what he should include in his arguments.
The reasons for the verdict were drawn up by Ferber. They were based
upon the notes of Rothaug as to what should be included. Considerable
space is given to Katzenberger’s ancestry and the fact that he was
of the Mosaic faith, although that fact was admitted by Katzenberger.
Such space is also given to the relationship between Katzenberger and
Seiler. That there was no proof of actual sexual intercourse is clear
from the opinion. The proof seems to have gone little farther than the
fact that the defendant Seiler had at times sat upon Katzenberger’s
lap and that he had kissed her, which facts were also admitted. Many
assumptions were made in the reasons stated which obviously are not
borne out by the evidence. The court even goes back to the time prior
to the passage of the law for the protection of German Blood and Honor,
during which Katzenberger had known Seiler. It draws the conclusion
apparently without evidence, that their relationship for a period of
approximately 10 years, had always been of a sexual nature. The opinion
undertakes to bring the case under the decision of the Reich Supreme
Court that actual sexual intercourse need not be proved, provided the
acts are sexual in nature.
Having wandered far afield from the proof to arrive at this conclusion
as to the matter of racial pollution, the court then proceeds to go
far afield in order to bring the case under the decree against public
enemies. Here the essential facts proved were that the defendant
Seiler’s husband was at the front and that Katzenberger, on one or
possibly two occasions, had visited her after dark. On both points the
following paragraphs of the opinion are enlightening (_NG-154, Pros.
Ex. 152_):
“Looked at from this point of view, Katzenberger’s conduct is
particularly contemptible. Together with his offense of racial
pollution he is also guilty of an offense under paragraph 4 of
the ordinance against people’s parasites.[671] It should be
noted here that the national community is in need of increased
legal protection from all crimes attempting to destroy or
undermine its inner cohesion.
“On several occasions since the outbreak of war the defendant
Katzenberger crept into Seiler’s flat after dark. In those cases
the defendant exploited the measures taken for the protection
in air raids. His chances were further improved by the absence
of the bright street lighting which exists in the street along
Spittlertorgraben in peacetime. He exploited this fact fully
aware of its significance because thus he instinctively escaped
during his excursions being observed by people in the street.
“The visits paid by Katzenberger to Seiler under the protection
of the black-out served at least the purpose of keeping
relations going. It does not matter whether during these visits
extra-marital sexual relations took place or whether they only
conversed as when the husband was present, as Katzenberger
claims. The request to interrogate the husband was therefore
overruled. The court holds the view the defendant’s actions,
done with a purpose within a definite plan, amount to a crime
against the body according to paragraph 2 of the ordinance
against people’s parasites. The law of 15 September 1935 has
been passed to protect German blood and German honor. The Jew’s
racial pollution amounts to a grave attack on the purity of
German blood, the object of the attack being the body of a
German woman. The general need for protection therefore makes
appear as unimportant the behavior of the other partner in
racial pollution who anyway is not liable to prosecution. The
fact that racial pollution occurred up to at least 1939–1940
becomes clear from statements made by the witness Zeuschel to
whom the defendant repeatedly and consistently admitted that up
to the end of 1939 and the beginning of 1940 she was used to
sitting on the Jew’s lap and exchanging caresses as described
above.
“Thus, the defendant committed an offense also under paragraph 2
of the ordinance against people’s parasites.
“The personal character of the male defendant also stamps him
as a people’s parasite. The racial pollution practiced by him
through many years grew, by exploiting wartime conditions,
into an attitude inimical to the nation, into an attack on the
security of the national community, during an emergency.
“This was why the defendant Katzenberger had to be sentenced
both on a charge of racial pollution and of an offense under
paragraphs 2 and 4 of the ordinance against people’s parasites,
the two charges being taken in conjunction according to
paragraph 73 of the criminal code.
* * * * * * *
“In passing sentence the court was guided by these
considerations: The political life of the German people under
national socialism is based on the community. One fundamental
factor of the life of the national community is race. If a Jew
commits racial pollution with a German woman, this amounts to
polluting the German race and, by polluting a German woman,
to a grave attack on the purity of German blood. The need for
protection is particularly strong.
“Katzenberger has been practicing pollution for years. He was
well acquainted with the point of view taken by patriotic German
men and women as regards racial questions, and he knew that by
this conduct he insulted the patriotic feelings of the German
people. Nor did he mend his ways after the National Socialist
revolution of 1933, after the passing of the law for the
protection of German blood, in 1935, after the action against
Jews in 1938, or the outbreak of war in 1939.
“The court therefore regards it as indicated, as the only
feasible answer to the frivolous conduct of the defendant, to
pass death sentence, as the heaviest punishment provided by
paragraph 4 of the decree against public enemies. His case
takes on the complexion of a particularly grave crime as he was
to be sentenced in connection with the offense of committing
racial pollution, under paragraph 2 of the Decree Against
Public Enemies, especially if one takes into consideration the
defendant’s character and the accumulative nature of commission.
This is why the defendant is liable to the death penalty which
the law provides for only such cases. Dr. Baur, the medical
expert, describes the defendants fully responsible.”
We have gone to some extent into the evidence of this case to show the
nature of the proceedings and the animus of the defendant Rothaug.
One undisputed fact, however, is sufficient to establish this case
as being an act in furtherance of the Nazi program to persecute and
exterminate Jews. That fact is that nobody but a Jew could have been
tried for racial pollution. To this offense was added the charge that
it was committed by Katzenberger through exploiting war conditions and
the black-out. This brought the offense under the ordinance against
public enemies and made the offense capital. Katzenberger was tried
and executed only because he was a Jew. As stated by Elkar in his
testimony, Rothaug achieved the final result by interpretations of
existing laws as he boasted to Elkar he was able to do.
This Tribunal is not concerned with the legal incontestability under
German law of these cases above discussed. The evidence establishes
beyond a reasonable doubt that Katzenberger was condemned and executed
because he was a Jew; and Durka, Struss, and Lopata met the same fate
because they were Poles. Their execution was in conformity with the
policy of the Nazi State of persecution, torture, and extermination
of these races. The defendant Rothaug was the knowing and willing
instrument in that program of persecution and extermination.
From the evidence it is clear that these trials lacked the essential
elements of legality. In these cases the defendant’s court, in spite
of the legal sophistries which he employed, was merely an instrument
in the program of the leaders of the Nazi State of persecution and
extermination. That the number the defendant could wipe out within
his competency was smaller than the number involved in the mass
persecutions and exterminations by the leaders whom he served, does
not mitigate his contribution to the program of those leaders. His acts
were more terrible in that those who might have hoped for a last refuge
in the institutions of justice found these institutions turned against
them and a part of the program of terror and oppression.
The individual cases in which Rothaug applied the cruel and
discriminatory law against Poles and Jews cannot be considered in
isolation. It is of the essence of the charges against him that he
participated in the national program of racial persecution. It is of
the essence of the proof that he identified himself with this national
program and gave himself utterly to its accomplishment. He participated
in the crime of genocide.
Again, in determining the degree of guilt the Tribunal has considered
the entire record of his activities, not alone under the head of racial
persecution but in other respects also. Despite protestations that
his judgments were based solely upon evidence introduced in court, we
are firmly convinced that in numberless cases Rothaug’s opinions were
formed and decisions made, and in many instances publicly or privately
announced before the trial had even commenced and certainly before
it was concluded. He was in constant contact with his confidential
assistant Elkar, a member of the criminal SD, who sat with him in
weekly conferences in the chambers of the court. He formed his
opinions from dubious records submitted to him before trial. By his
manner and methods he made his court an instrumentality of terror and
won the fear and hatred of the population. From the evidence of his
closest associates as well as his victims, we find that Oswald Rothaug
represented in Germany the personification of the secret Nazi intrigue
and cruelty. He was and is a sadistic and evil man. Under any civilized
judicial system he could have been impeached and removed from office
or convicted of malfeasance in office on account of the scheming
malevolence with which he administered injustice.
Upon the evidence in this case it is the judgment of this Tribunal that
the defendant Rothaug is guilty under count three of the indictment. In
his case we find no mitigating circumstances; no extenuation.
_THE DEFENDANT BARNICKEL_
The evidence has not convinced the Tribunal beyond a reasonable doubt
of the guilt of the defendant Barnickel. He is therefore acquitted on
all counts.
_THE DEFENDANT PETERSEN_
Upon the evidence submitted, it is the judgment of this Tribunal that
the defendant Hans Petersen is not guilty under any of the counts
charged against him in the indictment.
_THE DEFENDANT NEBELUNG_
Upon the evidence submitted, it is the judgment of this Tribunal that
the defendant Nebelung is not guilty under any of the counts charged
against him in the indictment.
_THE DEFENDANT CUHORST_
The defendant Cuhorst is charged under counts two, three, and four of
the indictment.
There is no evidence in this case to substantiate the charge under
count two of the indictment.
As to count four, the proof establishes that Cuhorst was a
Gaustellenleiter and so a member of the Gau staff and a “sponsoring”
member of the SS. His function as Gaustellenleiter was that of a public
propaganda speaker.
In its judgment the International Military Tribunal, in defining the
members of the Party Leadership Corps who came under its decision as
being members of a criminal organization, states the following:
“The decision of the Tribunal on these staff organizations
includes only the Amtsleiter who were heads of offices on the
staffs of the Reichsleitung, Gauleitung, and Kreisleitung.
With respect to other staff officers and Party organizations
attached to the Leadership Corps other than the Amtsleiter
referred to above, the Tribunal will follow the suggestion of
the prosecution in excluding them from the declaration.”
There is no evidence in this case which shows that the office of
Gaustellenleiter was the head of any office on the staff of the
Gauleitung.
With regard to the SS the judgment of the International Military
Tribunal is as follows:
“The Tribunal declares to be criminal within the meaning of
the Charter the group composed of those persons who had been
officially accepted as members of the SS as enumerated in the
preceding paragraph who became or remained members of the
organization with knowledge that it was being used for the
commission of acts declared criminal by Article 6 of the Charter
* * *.”[672]
Referring back to the membership enumerated, the judgment declares:
“In dealing with the SS, the Tribunal includes all persons who
had been officially accepted as members of the SS, including the
members of the Allgemeine SS, members of the Waffen SS, members
of the SS Totenkopf-Verbaende, and the members of any of the
different police forces who were members of the SS.”[673]
It is not believed by this Tribunal that a sponsoring membership is
included in this definition.
The Tribunal therefore finds the defendant Cuhorst not guilty under
counts two and four of the indictment.
As to count three the problem is considerably more complicated.
There are many affidavits and much testimony in the record as to the
defendant’s character as a fanatical Nazi and a ruthless judge. There
is also much evidence as to the arbitrary, unfair, and unjudicial
manner in which he conducted his trials. Some of the evidence against
him was weakened on cross-examination, but the general picture given of
him as such a judge is one which the Tribunal accepts.
The cases to be considered as connecting him with crimes established
in this case under count three involve the question as to whether the
evidence establishes his connection with the persecution of Poles. In
this connection we have given particular consideration to the Skowron
and Pietra cases.
Unfortunately the records of the Special Court at Stuttgart were
destroyed at the time that the Palace of Justice in Stuttgart was
burned. There are therefore no records available as to the cases tried
by Cuhorst.
From the evidence available, this Tribunal does not consider that it
can say beyond a reasonable doubt that the defendant was guilty of
inflicting the punishments which he imposed on racial grounds or that
it can say beyond a reasonable doubt that he used the discriminatory
provisions of the decree against Poles and Jews to the prejudice of the
Poles whom he tried.
While the defendant Cuhorst followed a misguided fanaticism, certain
things can be said in his favor. He was severely criticized for his
leniency by the defendant Klemm in a number of cases which he tried.
He was tried by a Party court for statements considered to reflect
upon the Party, which he made in a trial involving Party officials.
Subsequently he was relieved as a judge in Stuttgart because he
apparently did not conform to what the State and Party demanded of a
judge.
This Tribunal does not consider itself commissioned to try the
conscience of a man or to condemn a man merely for a course of conduct
foreign to its own conception of the law, it is limited to the
evidence before it as to the commission of certain alleged offenses.
Upon the evidence before it, it is the judgment of this Tribunal that
the defendant Cuhorst has not been proved guilty beyond a reasonable
doubt of the crimes alleged and that he be, therefore, acquitted on the
charges against him.
_THE DEFENDANT OESCHEY_
The defendant Oeschey joined the NSDAP on 1 December 1931. He was war
representative for the Gau Main Office for legal aid and legal advice.
After filling other offices he was appointed on 1 January 1939 to
the office of senior judge of the district court at Nuernberg, which
office he held until 1 April 1941. He was then appointed district court
director at the same court. He was a presiding judge of the Special
Court in Nuernberg.
By decree of 30 July 1940 of the Reich legal office of the NSDAP, he
was provisionally commissioned with the direction of the legal office
of the NSDAP in the Franconia Gau, and the leadership of the Franconia
Gau in the NSRB, the National Socialist Lawyers’ League. He carried out
his duties in the Leadership Corps of the Party at the same time that
he was serving as a judge of the Special Court. His personnel file in
the Reich Ministry of Justice shows that he was highly recommended for
his Party reliability by at least five different public officials.
He was drafted into the army in February 1945, and remained in the
army until the end of the war; however, he was released for the period
from 4 April until 14 April 1945, during which time he functioned
as chairman of the civilian court martial at Nuernberg. The record
discloses that he and the defendant Rothaug were the guiding, if not
controlling, spirits of the Special Court at Nuernberg, which was known
as the most brutal of the special courts in Germany.
Among many cases which gave evidence of his arbitrary character we will
give detailed attention to two:
In March 1943, Sofie Kaminska, a widowed Polish farm laborer, and
Wasyl Wdowen, a Ukrainian, were indicted before the Special Court at
Nuernberg for alleged crimes as follows:
Kaminska for a violation of the law against Poles and Jews in
connection with the crime of assault and battery and threat and
resistance to an officer; Wdowen for the alleged crime of being
accessory to a crime according to the law against Poles and Jews,
and for attempting to free a prisoner. The case was tried before the
Special Court, the defendant Oeschey presiding.
The facts on which the sentence was based may, with complete fairness
to the defendant Oeschey, be very briefly summarized. Shortly after
the invasion of Poland, Kaminska “came to Germany, being committed to
work there.” Kaminska and Wdowen were lovers. They were both working
for a farmer, Gundel. They demanded pay from Gundel, which was refused,
and they became more insistent. “The defendant Wdowen actually gave
the farmer a push.” “In his distress Gundel called for help of the
Pfc. Anton Wanner who was in uniform and happened to be spending his
leave there.” A quarrel followed. Kaminska slapped the soldier’s face,
and the soldier slapped her face. During the dispute the soldier’s
combat infantryman’s badge fell to the ground. There were various
demonstrations; the soldier drew his bayonet, and Kaminska ran out of
the room and took a hoe, but did not get a chance to attack the soldier
because he closed the door. Shortly thereafter, the soldier was riding
on his bicycle and the Pole, Kaminska, threw a stone at him without,
however, hitting him. The next day a police official came out to the
farm and arrested Kaminska who followed him “unwillingly.” Wdowen,
contrary to the instructions of the police officer, followed them.
The policeman slapped Wdowen’s face twice to force him to turn back.
Nevertheless, Wdowen followed to the door of the cell and attempted
to assist the Polish woman, Kaminska, in resisting imprisonment. The
very most that can possibly be said of the evidence, as stated by the
defendant Oeschey himself, is that there was a good squabble with
mutual recriminations and threats. It is to be understood that many of
the statements heretofore made, as quoted from the opinion, were denied
by the defendants in that case but, as before stated, we do not retry
the case upon the facts. The court argues at great length concerning
the claim of the prosecution that the stone weighed a half a pound and
should be considered equal to a cutting or thrusting weapon. The court
said:
“The defendant had the insolence to attack a German soldier; she
took up an offensive position which would have led to a great
blood bath if the soldier had not evaded the stone which was
hurled at him.”
The court said of Kaminska (_NG-457, Pros. Ex. 201_): “She thereby
characterizes herself as a Polish violent criminal,” and then stated:
“As the defendant on 1 September 1939 was a resident in the
territory of the former Polish state, she had to be found
guilty, in application of paragraphs II, III, and XIV of the
Penal Law against Poles, of a crime of assault and battery in
coincidence with a crime of threat, a crime under paragraph 1,
section 1, of the law against violent criminals, and of a crime
of offering resistance to the authority of a state.”
The fact that the discriminatory law against Poles was invoked in this
case is established. The opinion signed by Oeschey states:
“Under paragraph III, section 2, of the Penal Law against Poles,
the death sentence must be passed if the law threatens with it.”
Concerning Wdowen, who was a Ukrainian and therefore could not be
sentenced under the law against Poles, the court commented on the
fact that he knew that the Germany economy, on account of wartime
conditions, was dependent on foreign labor, “in particular, labor from
the eastern territories.” The court drew the conclusion that Wdowen,
who had used at most only a little force in attempting to protect
Kaminska, was guilty of having taken advantage of extraordinary wartime
conditions and of violating the law against violent criminals. Both
defendants were sentenced to death by the defendant Oeschey. The
associated judges in the Kaminska and Wdowen case were Doctors Gros and
Pfaff. They are guilty of having signed the judgment. Both submitted
affidavits and both were cross-examined before this Tribunal. Dr. Gros
stated that Oeschey demanded the severest countermeasures in similar
cases. “We associate judges were powerless toward such an attitude. It
must be mentioned that none of the defendants had criminal records, and
that they were eliminated in a most objectionable way by Oeschey for
racial and political reasons.”
The other associate judge, Dr. Theodor Pfaff, spoke of the Kaminska
case as “the most terrible of my entire career. * * * The sentence of
death and the consequent execution of these Poles offended my sense of
ethics and has continually preyed upon my conscience. I would like to
state here that Oeschey forced his will upon us.”
The two associate judges are to be condemned for their spineless
attitude in submitting to the domination of the defendant Oeschey, but
we cannot fail to give weight to their statements, which in effect
amount to confessions of their own wrongdoing.
In this case Oeschey, with evil intent, participated in the
government-organized system for the racial persecution of Poles. This
is also a case of such a perversion of the judicial process as to shock
the conscience of mankind.
The progressive degeneration in the administration of justice came to
a climax in 1944 and 1945. A decree by Thierack on 13 December 1944
abrogated the rules concerning the obligatory representation of accused
persons by defense counsel. It was left for the judge to decide whether
defense counsel was required. On 15 February 1945 as a final measure
of desperation and in the face of imminent defeat, the law was passed
for the establishment of civilian courts martial. The statute provided
that sentence should be either death, acquittal, or commitment to the
regular court. Pursuant to this law Gauleiter Holz set up a drumhead
court martial in Nuernberg. It consisted of the defendant Oeschey
as presiding judge, with Gau Inspector Haberkern and a major in the
Wehrmacht as associate judges. On 2 April 1945 Karl Schroeder was
appointed prosecutor. The judges and prosecutor then went to the office
of the Gauleiter, where he delivered a speech in which he stated:
“That the main point was to stop the American advance; one could
count upon introduction of new weapons, and that he expected
that the court martial would give the necessary support to the
army at the front by applying the severest measures.”
The officials were sworn in on 3 April. The affidavit of Schroeder, who
later appeared for cross-examination, discloses that Holz intended that
the first case be tried on the third day of April. Schroeder stated
this would be impossible because he would need time to examine the
case. The first case to be tried was that of Count Montgelas. Schroeder
states that the case was the most difficult in his practice, but that
it had to be tried “because the Gauleitung pressed for a quick decision
of this matter”. The defendant Oeschey testified concerning the court
martial procedure as follows:
“Proceedings were to follow the provisions laid down in the Code
of Criminal Procedure which had been very strongly simplified.
Nevertheless, the court martial had observed in its proceedings
the most important principles of protecting the interest of
the defendant. The defendant’s right to be heard, oral trial,
admission of defense counsel, thorough presentation of evidence,
a freedom of the judge to go into the evidence, a vote among the
judges, and so forth.”
The procedure followed by Oeschey as presiding judge in the case
Montgelas did not conform to the foregoing statement. Count Montgelas
had for some time been represented by defense counsel Eichinger, who
had an office in the courthouse adjacent to that of the prosecutor, and
who had had dealings with the prosecutor concerning the Montgelas case.
The defendant Oeschey testified that he had directed that Eichinger
be notified concerning the trial, but in any event Eichinger was not
notified and Oeschey informed the prosecutor that he would conduct the
trial without defense counsel because the “legal prerequisites for
trial without defense counsel did exist.” He apparently had reference
to Thierack’s decree of 13 December 1944, _supra_.[674] Eichinger,
as attorney for Count Montgelas, received his first information
concerning the trial after Montgelas had been convicted and shot.
The statute creating civilian courts martial specifically provided that
they should consist of “a judge of a criminal court, as president * *
*.” At the time of his appointment, Oeschey was a soldier serving in
the Wehrmacht and was not a judge of a criminal court. He testified
that the statute meant only that it was necessary “that a man be
appointed who has the qualifications to exercise the function of a
judge.”
The Nuernberg civilian court martial functioned for the first time on
5 April, held ten sessions, and disposed of twelve defendants, ten of
whom were charged with political offenses. On 16 April the American
Army was approaching Nuernberg, and on that date at noon the civilian
court martial ceased to function.
An exhibit was offered in evidence containing the results of an
official investigation of the defendant Oeschey and prosecutor
Schroeder for perversion of justice, conducted in August 1946, before
German judicial authorities. An objection to the receipt of the exhibit
was first made by counsel for Oeschey but was later withdrawn. The
exhibit was received and is before us for consideration. From this
exhibit we learn that Dr. Wilhelm Eser was the investigating judge
in the Montgelas case. He states that at the hearing of Montgelas
a Gestapo official was present, and that if Montgelas had not been
arrested the official would have taken him back to the Gestapo “as it
was demanded in the record of the investigation * * *.” Eichinger,
who appeared as a witness before this Tribunal, had been employed in
February by Countess Montgelas to defend her husband. He stated that he
had conferred with Prosecutor Dr. Mueller and had been informed that
the prosecutor recognized--
“* * * the competence of the People’s Court and therefore he had
submitted the record of the case to the chief public prosecutor
at the People’s Court for a decision. I asked him to inform
me immediately after the record was returned, respectively,
after receiving the decision of the chief public prosecutor. He
promised me this, and I was completely reassured.”
At this time Montgelas was in the sick ward of the prison for solitary
confinement. On 10 April Eichinger went to the prison office to
examine the files in the Montgelas case, whereupon the director of
Nuernberg prison informed me confidentially that Count Montgelas had
been summoned before the court martial on 5 April at 2 p.m., sentenced
to death, and shot the next day. The crime for which Count Montgelas
had been shot consisted of remarks made by him in a private room in
the Grand Hotel to a lady, Mrs. Pfleger, of Bamberg. The Count had
made insulting remarks concerning Hitler, among others to the effect
that his true name was Schickelgruber. He also expressed approval of
the attempt upon Hitler’s life of 20 July 1944. We are convinced from
the testimony of Eichinger before this Tribunal that if any serious
effort had been made he could have been notified prior to the trial of
his client. Eichinger expressed the opinion with which this Tribunal
concurs, that a summons issued at 1400 hours to appear at 1500 hours
before a court martial is an offense against justice. The only witness
who appeared against Count Montgelas was an SS Fuehrer, who had been
shadowing him for many days in an attempt to secure evidence against
him. By concealing himself in an adjoining room and by the use of a
mechanical device, he was able to overhear the conversation between
Montgelas and the lady and to testify concerning it. Eichinger states
that the statements of the SS Fuehrer who was the eavesdropper at
the hotel were “in important points contradictory” to the statements
Montgelas had made to his attorney and that the latter had already
proposed to summon the lady with whom Montgelas had conversed as a
rebuttal witness in behalf of the Count.
The wife of the martyr Montgelas stated in the official investigation
that Chief Prosecutor Schroeder told her that “there had not been time
to comply with my husband’s urgent request to get a defense counsel.”
Schroeder also told the Countess that she was not to be given any
information on the disposal of the body of her husband because he had
died a dishonorable death. Thus, on the last days of the war, when the
American Army was almost at the gates of Nuernberg, and within a month
of the total collapse of German opposition, a sick man, after solitary
confinement, is indicted on 3 April, tried on 5 April, and shot on 6
April without the knowledge of his counsel in secret proceedings, and
without the benefit of witnesses who would have testified for him. Such
a mock trial is not a judicial proceeding but a murder.
It is provided in C. C. Law 10 that persecutions on political as well
as racial grounds are recognized as crimes. While the mere fact alone
that Montgelas was prosecuted for remarks hostile to the Nazi regime
may not constitute a violation of C. C. Law 10, the circumstances under
which the defendant was brought to trial and the manner in which he was
tried convince us that Montgelas was not convicted for undermining the
already collapsed defensive strength of the defeated nation, but on the
contrary, that the law was deliberately invoked by Gauleiter Holz and
enforced by Oeschey as a last vengeful act of political persecution. If
the provisions of C. C. Law 10 do not cover this case, we do not know
what kind of political persecution it would cover.
We have already indicated that we will not convict any defendant merely
because of the fact, without more, that he participated in the passing
or enforcement of laws for the punishment of habitual criminals,
looters, hoarders, or those guilty of undermining the defensive
strength of the nation, but we also stated that these laws were in many
instances applied in an arbitrary and brutal manner shocking to the
conscience of mankind and punishable here. This was the situation in a
number of cases tried by Rothaug and Oeschey, but concerning which we
have no transcript of testimony and we must therefore of necessity rely
upon statements of associates and close observers. In this connection
we shall have reference to affidavits and to testimony of associates of
the defendant Oeschey. We shall refer to statements of affiants only in
those cases in which the affiant was also brought to court and verbally
cross-examined concerning his statements.
Dr. Hermann Mueller was a prosecutor at the Special Court in Nuernberg.
He said:
“He (Oeschey) frequently insulted the defendants and presented
the crimes to them as if these crimes were already a proven
fact. His behavior was often so extreme that one might well
believe he was a psychopathic case. The abusive insults that
he inflicted upon the defendants were, to the highest degree,
unworthy of a court trial. He wielded such influence over the
form of the administration of justice through his close Party
affiliations that the other officials of equal rank at the
Nuernberg administration of criminal justice were almost always
forced to yield.”
Mueller mentions several cases in which Oeschey announced before trial
that the defendant would be executed. In a case against Schnaus he
states that Oeschey--
“* * * told me that, as a result of a discussion with government
officials, he was certain to obtain the death sentence. At that
time I was still unaware of the changed situation at the Special
Court occasioned by the war, and turned to my immediate superior
for information. He then informed me of the very close relations
existing between judges and the prosecutors.”
Concerning the case Montgelas, Mueller stated:
“Concerning the case of Montgelas it must be pointed out that
this was a case of political extermination, which was handled in
a most hideous fashion.”
Again, he said:
“Oeschey was the most brutal judge that I have ever known in
my life and a most willing instrument of the Nazi terroristic
justice.”
Dr. Armin Baur was the medical officer at the Special Court. He said:
“One always had the impression that the verdict was already
previously decided upon and that Oeschey and Rothaug were just
playing cat and mouse with the defendants for hours. No occasion
was missed to insult the defendants in the filthiest way.”
This medical expert dealt with cases which were tried both by Rothaug
and by Oeschey. In the Katzenberger case the defendant Rothaug told the
doctor that he wanted the defendant examined but that the examination
was a matter of pure formality because the Jew “would be beheaded
anyhow,” and he added, “It is sufficient for me that the swine said
that a German girl sat on his lap.” Dr. Baur states that “foreigners
were generally dealt with by Rothaug and Oeschey as inferior beings
whose task it was only to serve the German master race.”
Hans Kern, defense counsel, stated “that foreigners were told at the
beginning and throughout the trial that they were to be annihilated.”
Again he said:
“Rothaug and Oeschey declined, as a matter of principle, to
believe Polish citizens who were under accusation. They were
branded as liars. It was assumed that their innate tendency made
liars of them.”
He described Oeschey as a “notorious Pole baiter.”
Dr. Gustav Kunz, leading court doctor at Nuernberg, was an excellent
and reliable witness. He stated:
“Insult, humiliation, and mental torture of the defendants
were routine and the two judges, especially Oeschey, did not
even renounce them in cases in which--according to the legal
situation--the verdict had to be and actually was acquittal or
an insignificant sentence.”
Kurt Hoffmann, prosecutor at Nuernberg, states that Oeschey was severe
as to the German defendants and was--
“* * * even more severe with regard to sentences against
foreigners and much more furious in his conduct of their trials,
especially in the case of Poles.”
Adolf Paulus, former public prosecutor, speaks of the “brutality of
which only Oeschey was capable.”
Friedrich Doebig, who was president of the district court of appeals at
Nuernberg, later senate president of the Reich Supreme Court, stated
that “Oeschey like Rothaug was a fanatical Nazi, who consistently
interpreted and enforced the law in accord with Nazi ideologies.”
Dr. Herbert Lipps served with defendant Oeschey on the Special Court,
Nuernberg. He states that Oeschey was autocratic and would not tolerate
contradiction.
“Defendants were insulted by Oeschey in the most abusive manner
and death candidates were told by Oeschey right at the beginning
of the session that they had forfeited their lives.
“Toward foreigners, particularly Poles, Oeschey was especially
rigorous and here upheld the National Socialist theory of
liquidating where nationals of the occupied territories were
concerned. I remember a case in which a Polish farmhand was
ill-treated by his employer and defended himself. Oeschey told
the defendant that a Pole was not allowed to oppose a German.”
Dr. Franz Gros was an associate judge at Nuernberg. He states that
Oeschey followed the harsh procedural methods of Rothaug and was a
“fanatic National Socialist who pursued his dishonorable motives with
conviction and who willingly lent his hand to blood-thirsty National
Socialist jurisdiction.”
Dr. Pfaff was an associate judge at Nuernberg and corroborates the
statements of Dr. Gros.
Dr. Joseph Mayer was a Referent in the prosecutor’s office at
Nuernberg. Concerning Oeschey, he said:
“Oeschey * * * was obviously of Rothaug’s school. Outwardly he
gave the impression of being morose and unrelenting. I cannot
remember ever having had a personal conversation with him. As
a rule he began the proceedings with a preconceived opinion
to which he adhered. Anyone who tried to oppose this opinion
was overridden by him in the most brutal way. He insulted the
defendants all the time in a most offensive manner, informing
them repeatedly all the way through, what he intended to do with
them. He had an extensive vocabulary of invectives for that
purpose, the use of which he developed to a fine art. * * * It
was literally tormenting if one had to listen to this tirade
often for hours at a time. When his face became distorted into a
repulsive mask by his continual scolding and abusive language,
Faust’s words to Mephistopheles would often quite involuntarily
come to my mind: ‘Thou freak of filth and fire.’”
Joseph Eichinger, defense attorney at Nuernberg, stated:
“His prejudice was so strong that he did not consider,
seriously, the statements of the defense and dismissed them
rudely or ironically. Even during the trial he repeatedly
addressed the defendant thus: ‘People such as you deserve to
be exterminated,’ ‘You will be convicted;’ or he called the
defendant insulting and humiliating names such as ‘criminal,’ or
‘scoundrel,’ ‘enemy of the people.’”
Again, he said:
“As leader of the Gau legal office (Gaurechtsamt) and, after the
latter’s disbanding, as member in the Gau staff (Gaustab), he
enjoyed a special position of power which enabled him to hold
the defense strongly in check; it was well known that a sign
from the Gau authorities, instigated by Oeschey, was sufficient
to have a lawyer turned over to the Gestapo.
“I had the impression that he supported, knowingly and
willingly, the policy of Hitler to ‘decimate’ (Dezimierung)
aliens, especially Poles, by increasing the number of death
sentences against them * * *.”
On cross-examination Eichinger admitted that he did not know of any
lawyer who had been turned over to the Gestapo by Oeschey. It is
clear that in his statements Eichinger was relying only upon general
information as the basis of his opinion. We think, however, that his
opinion merits consideration.
Dr. Karl Mayer, defense counsel, said that Rothaug was judge of the
worst Special Court in Germany and used to tell defendants even
during the trial that they would be exterminated. He adds that after
Rothaug was transferred to Berlin, Oeschey even surpassed him in the
spitefulness of his manner. Space does not permit the discussion
of the other cases which illustrate Oeschey’s ruthless exercise of
arbitrary power. Mention should, however, be made of the trial of a
group of foreign boys who had some fights with boys in the Nuernberg
Hitler Youth Home. Dr. Mueller characterizes the action of the boys as
harmless pranks. At worst they were indulging in street fights with the
Hitler Youth. Oeschey held that they constituted a resistance movement
and several of the boys were sentenced to death.
The defendant Oeschey is charged under count four of the indictment
with being a member of the Party Leadership Corps at Gau level within
the definition of the membership declared criminal according to the
judgment of the first International Military Tribunal in the case
against Goering, et al.
We have previously quoted the findings of the first International
Military Tribunal which define the organizations and groups within
the Leadership Corps which are declared to be criminal. Oeschey was
provisionally commissioned with the direction of the legal office of
the NSDAP in the Franconia Gau and served in that official capacity for
a long time. In his testimony he states that from 1940 to 1942 he was
solely in charge of the Gau legal office as section chief. The evidence
clearly establishes the defendant’s voluntary membership as the chief
of a Gau staff office subsequent to 1 September 1939. The judgment of
the first International Military Tribunal lists among the criminal
activities of the Party Leadership Corps the following:
“The Leadership Corps played its part in the persecution
of the Jews. It was involved in the economic and political
discrimination against the Jews which was put into effect
shortly after the Nazis came into power. The Gestapo and SD were
instructed to coordinate with the Gauleiter and Kreisleiter the
measures taken in the pogroms of 9 and 10 November 1938. The
Leadership Corps was also used to prevent German public opinion
from reacting against the measures taken against the Jews in the
East. On 9 October 1942, a confidential information bulletin
was sent to all Gauleiter and Kreisleiter entitled ‘Preparatory
measures for the final solution of the Jewish question in
Europe--rumors concerning the conditions of the Jews in the
East.’ This bulletin stated that rumors were being started by
returning soldiers concerning the conditions of Jews in the East
which some Germans might not understand, and outlined in detail
the official explanation to be given. This bulletin contained no
explicit statement that the Jews were being exterminated, but
it did indicate they were going to labor camps, and spoke of
their complete segregation and elimination and the necessity of
ruthless severity. * * *
“The Leadership Corps played an important part in the
administration of the slave labor program. A Sauckel decree
dated 6 April 1942 appointed the Gauleiter as plenipotentiary
for labor mobilization for their Gaue with authority to
coordinate all agencies dealing with labor questions in their
Gaue, with specific authority over the employment of foreign
workers, including their conditions of work, feeding, and
housing. Under this authority the Gauleiter assumed control over
the allocation of labor in their Gaue, including the forced
laborers from foreign countries. In carrying out this task the
Gauleiter used many Party offices within their Gaue, including
subordinate political leaders. For example, Sauckel’s decree of
8 September 1942, relating to the allocation for household labor
of 400,000 women laborers brought in from the East, established
a procedure under which applications filed for such workers
should be passed on by the Kreisleiter, whose judgment was final.
“Under Sauckel’s directive the Leadership Corps was directly
concerned with the treatment given foreign workers, and the
Gauleiter were specifically instructed to prevent ‘politically
inept factory heads’ from giving ‘too much consideration to the
care of eastern workers’. * * *
“The Leadership Corps was directly concerned with the treatment
of prisoners of war. On 5 November 1941 Bormann transmitted a
directive down to the level of Kreisleiter instructing them to
insure compliance by the army with the recent directives of the
department of the interior ordering that dead Russian prisoners
of war should be buried wrapped in tar paper in a remote place
without any ceremony or any decorations of their graves. On 25
November 1943 Bormann sent a circular instructing the Gauleiter
to report any lenient treatment of prisoners of war. On 13
September 1944 Bormann sent a directive down to the level of
Kreisleiter ordering that liaison be established between the
Kreisleiter and the guards of the prisoners of war in order
‘better to assimilate the commitment of the prisoners of war to
the political and economic demands’. * * *
“The machinery of the Leadership Corps was also utilized in
attempts made to deprive Allied airmen of the protection to
which they were entitled under the Geneva Convention. On 13
March 1940 a directive of Hess, transmitted instructions through
the Leadership Corps down to the Blockleiter for the guidance of
the civilian population in case of the landing of enemy planes
or parachutists, which stated that enemy parachutists were to be
immediately arrested or ‘made harmless.’”[675]
As to his knowledge, the defendant Oeschey joined the NSDAP on 1
December 1931. He was head of the Lawyers’ League for the Gau Franconia
and a judicial officer of considerable importance within the Gau. These
offices would provide additional sources of information as to the
crimes outlined. Furthermore, these crimes were of such wide scope and
so intimately connected with the activities of the Gauleitung that it
would be impossible for a man of the defendant’s intelligence not to
have known of the commission of these crimes, at least in part if not
entirely.
We find the defendant Oeschey guilty under counts three and four of
the indictment. In view of the sadistic attitude and conduct of the
defendant, we know of no just reason for any mitigation of punishment.
_THE DEFENDANT ALTSTOETTER_
Joseph Altstoetter was born 4 January 1892. He was educated for the
bar and passed the State examination in jurisprudence in Munich. He
subsequently served in the Bavarian and in the Reich Ministries of
Justice.
In 1932 he was promoted and sent to the Reich Supreme Court in Leipzig.
In 1933 he was a member of the appeals criminal senate. In 1936 he
was a member of the Reich Labor Court. From 1939 to 1943 he served
with the Wehrmacht. In 1943 he was assigned to the Reich Ministry of
Justice where he was made chief of the civil law and procedure division
in the Ministry of Justice with the title of Ministerialdirektor and
served in that capacity until the surrender. He had been a member of
the Stahlhelm prior to the Nazi rise to power. When the Stahlhelm was
absorbed into the Nazi organization, he automatically became a member
of the SA. Prior to May 1937 he resigned from the SA to become a member
of the general SS. His membership in the SS, from his personnel files,
dates from 15 May 1937. He applied for membership in the NSDAP in 1938
and his membership was dated back to 1 May 1937. He was awarded the
Golden Party Badge for service to the Party.
Upon the evidence in this case it is the judgment of this Tribunal that
the defendant Altstoetter is not guilty under counts two and three of
the indictment.
The question which remains to be determined as to the defendant
Altstoetter is whether, knowing of its criminal activities as defined
by the London Charter, he joined or retained membership in the SS, an
organization defined as criminal by the International Military Tribunal
in the case of Goering, et al.
The evidence in this case as to his connection with the SS is found
primarily in his personnel record which covers a great many pages, in
his correspondence with SS leaders, and his own testimony. From this
evidence it appears that the defendant, upon the request of Himmler,
joined the SS in May 1937. He stated that Himmler told him he would
receive a rank commensurate with his civil status. The record does
not indicate what rank in the SS was commensurate with his civil
status as a member of the Reich Supreme Court, but on 20 April 1938
he was promoted to Untersturmfuehrer, which corresponds to a second
lieutenant in the army. He was subsequently promoted on 20 April 1939
to Obersturmfuehrer; on 20 April 1940 to Hauptsturmfuehrer. On 12 March
1943, according to a letter to the SS Main Personnel Office, signed
by Himmler, he was promoted to Sturmbannfuehrer, effective 25 January
1943 and, by the same letter, to Obersturmbannfuehrer as of 20 April
1943, and it was directed that he be issued a skull and crossbones
ring. In June 1943 he wrote to the Chief of the SS Main Office, SS
Gruppenfuehrer Berger, thanking him for this ring bestowed by the Reich
Leader SS. In this letter he wrote:
“Both this promotion and the honoring of this decoration with
the skull and crossbone ring I will take not only as a token of
the Reich Leader’s most distinct proof of trust in me, but also
as an incentive for further active proof of my loyalty and for
strictest adherence to my duties in my career as an SS man.”
On 11 February 1944 he wrote SS Gruppenfuehrer and Lieutenant General
of the Waffen SS, Professor Dr. Karl Gebhardt, a letter containing the
following paragraph:
“One more personal remark--You kindly promoted me SS
Oberfuehrer. It is not that far yet. At least, I did not get to
know it until now. I merely tell you this because I do not want
to claim anything for me which does not correspond to facts.”
By letter dated 16 June 1944 he was notified that the Reich Leader SS
had promoted him to the rank of Oberfuehrer, effective 21 June 1944.
The defendant stated that he was assigned to the legal staff of the
48th Standarte and later to the legal staff of the SS Main Office.
He stated that he had no actual duties. However, part of his service
credentials, dated 14 March 1939, under the heading of qualifications,
signed by Dalski, SS Obersturmbannfuehrer, the following is stated:
“SS Untersturmfuehrer Altstoetter is frank, honest, and helpful.
His ideology is firmly established on a National Socialist
basis. A. was a leader of the staff of the 48th Standarte and
there at all times performed his duties in a satisfactory
manner.”
In a report from Leipzig, dated 10 June 1939, it is stated that he was
awarded the “badge of honor for legal service, in silver”, effective 19
April 1938, signed Sachse, SS Untersturmfuehrer and Adjutant.
The defendant was evidently highly regarded by Himmler who, on 18
September 1942, at a meeting with Thierack and Rothenberger, referred
to him as a reliable SS Obersturmfuehrer.
It also appears that his appointment to the Ministry of Justice was at
the suggestion of Himmler and that the defendant’s relationship with
Himmler was one which Thierack fostered for purposes of his own.
At the instance of Thierack, he visited Himmler at his headquarters and
was present at a speech given by Himmler at Kochem, where he attended a
dinner for twelve people, including SS Standartenfuehrer Rudolf Brandt
and SS Obergruppenfuehrer Pohl.
He visited Berger, a high SS official, at Berger’s request. He
carried on considerable correspondence with high officials in the
SS, including Himmler, SS Gruppenfuehrer Professor Dr. Gebhardt, SS
Gruppenfuehrer Berger, and Kaltenbrunner, Chief of the Security Police
and SD.
On 25 May 1940 Altstoetter wrote to the Reich Leader SS as follows:
“If I can contribute my small part towards helping our Fuehrer
to accomplish his great task for the benefit of our nation, this
causes me particular joy and satisfaction, especially in my
capacity as SS officer.”
According to a letter to Gebhardt, Himmler had instructed the SS
leaders to request Altstoetter’s advice in certain matters.
On 6 June 1944 he wrote Gebhardt, congratulating him upon a recent
award. In this letter he states:
“I am especially glad about your distinction, especially because
I do not see only in it a recognition of your great war service
as a physician and surgeon but also as a research scientist and
organizer and which is attributed to our old and trusty friend.”
The evidence in this case clearly establishes that the defendant joined
and retained his membership in the SS on a voluntary basis. In fact it
appears that he took considerable interest in his SS rank and honors.
The remaining fact to be determined is whether he had knowledge of
the criminal activities of the SS as defined in the London Charter.
In this connection we quote certain extracts from the judgment of the
International Military Tribunal in the case of Goering, et al., as to
the SS--
“Criminal activities: SS units were active participants in
the steps leading up to aggressive war. The Verfuegungstruppe
was used in the occupation of the Sudetenland, of Bohemia and
Moravia, and in Memel. The Henlein Free Corps was under the
jurisdiction of the Reich Leader SS for operations in the
Sudetenland in 1938, and the Volksdeutsche Mittelstelle financed
fifth column activities there.
“The SS was even a more general participant in the commission
of war crimes and crimes against humanity. Through its control
over the organization of the police, particularly the Security
Police and SD, the SS was involved in all the crimes which
have been outlined in the section of this judgment dealing
with the Gestapo and SD. * * * The Race and Settlement Office
of the SS, together with the Volksdeutsche Mittelstelle were
active in carrying out schemes for Germanization of occupied
territories according to the racial principles of the Nazi Party
and were involved in the deportation of Jews and other foreign
nationals. Units of the Waffen SS and Einsatzgruppen operating
directly under the SS Main Office were used to carry out these
plans. These units were also involved in the widespread murder
and ill-treatment of the civilian population of occupied
territories. * * *
“From 1934 onward the SS was responsible for the guarding and
administration of concentration camps. The evidence leaves no
doubt that the consistently brutal treatment of the inmates of
concentration camps was carried out as a result of the general
policy of the SS, which was that the inmates were racial
inferiors to be treated only with contempt. There is evidence
that where manpower considerations permitted, Himmler wanted to
rotate guard battalions so that all members of the SS would be
instructed as to the proper attitude to take to inferior races.
After 1942 when the concentration camps were placed under the
control of the WVHA they were used as a source of slave labor.
An agreement made with the Ministry of Justice on 18 September
1942 provided that antisocial elements who had. finished prison
sentences were to be delivered to the SS to be worked to death.
* * *
“The SS played a particularly significant role in the
persecution of the Jews. The SS was directly involved in the
demonstrations of 10 November 1938. The evacuation of the
Jews from occupied territories was carried out under the
directions of the SS with the assistance of SS police units. The
extermination of the Jews was carried out under the direction of
the SS central organizations. It was actually put into effect by
SS formations. * * *
“It is impossible to single out any one portion of the SS which
was not involved in these criminal activities. The Allgemeine SS
was an active participant in the persecution of the Jews and was
used as a source of concentration camp guards. * * *
“The Tribunal finds that knowledge of these criminal activities
was sufficiently general to justify declaring that the SS was
a criminal organization to the extent hereinafter described.
It does appear that an attempt was made to keep secret some
phases of its activities, but its criminal programs were so
widespread, and involved slaughter on such a gigantic scale,
that its criminal activities must have been widely known. It
must be recognized, moreover, that the criminal activities of
the SS followed quite logically from the principles on which
it was organized. Every effort had been made to make the SS
a highly disciplined organization composed of the elite of
national socialism. Himmler had stated that there were people
in Germany ‘who become sick when they see these black coats’,
and that he did not expect that ‘they should be loved by too
many’. * * * Himmler in a series of speeches made in 1943,
indicated his pride in the ability of the SS to carry out these
criminal acts. He encouraged his men to be ‘tough and ruthless’;
he spoke of shooting ‘thousands of leading Poles’, and thanked
them for their cooperation and lack of squeamishness at the
sight of hundreds and thousands of corpses of their victims. He
extolled ruthlessness in exterminating the Jewish race and later
described this process as ‘delousing’. These speeches show that
the general attitude prevailing in the SS was consistent with
these criminal acts. * * *
“In dealing with the SS the Tribunal includes all persons who
had been officially accepted as members of the SS, including the
members of the Allgemeine SS, members of the Waffen SS, members
of the SS Totenkopf Verbaende, and the members of any of the
different police forces who were members of the SS. * * *
“The Tribunal declares to be criminal within the meaning of
the Charter the group composed of those persons who had been
officially accepted as members of the SS as enumerated in the
preceding paragraph who became or remained members of the
organization with knowledge that it was being used for the
commission of acts declared criminal by article 6 of the Charter
* * *.”[676]
In this regard the Tribunal is of the opinion that the activities of
the SS and the crimes which it committed as pointed out by the judgment
of the International Military Tribunal above quoted are of so wide a
scope that no person of the defendant’s intelligence, and one who had
achieved the rank of Oberfuehrer in the SS, could have been unaware of
its illegal activities, particularly a member of the organization from
1937 until the surrender. According to his own statement, he joined the
SS with misgivings, not only on religious grounds but also because of
practices of the police as to protective custody in concentration camps.
Altstoetter not only had contacts with the high ranking officials
of the SS, as above stated, but was himself a high official in the
Ministry of Justice stationed in Berlin from June 1943 until the
surrender. He attended conferences of the department chiefs in the
Ministry of Justice and was necessarily associated with the officials
of the Ministry, including those in charge of penal matters.
The record in this case shows as part of the defense of many of
those on trial here that they claim to have constantly resisted the
encroachment of the police under Himmler and the illegal acts of the
police.
Documentary evidence shows that the defendant knew of the evacuation of
Jews in Austria and had correspondence with the Chief of the Security
Police and Security Service regarding witnesses for the hereditary
biological courts. This correspondence states:
“If the Residents’ Registration Office or another police office
gives the information that a Jew has been deported, all other
inquiries as to his place of abode as well as applications for
his admission of hearing or examination are superfluous. On the
contrary, it has to be assumed that the Jew is not attainable
for the taking of evidence.”
It also quotes this significant paragraph:
“If in an individual case it is to the interest of the public
to make an exception and to render possible the taking of
evidence by special provision of persons to accompany and means
of transportation for the Jew, a report has to be submitted
to me in which the importance of the case is explained. In
all cases offices must refrain from direct application to the
offices of the police, especially also to the Central Office for
the Regulation of the Jewish Problem in Bohemia and Moravia at
Prague, for information on the place of abode of deported Jews
and their admission, hearing, or examination.”
He was a member of the SS at the time of the pogroms in November 1938,
“Crystal Week,” in which the IMT found the SS to have had an important
part. Surely whether or not he took a part in such activities or
approved of them, he must have known of that part which was played by
an organization of which he was an officer. As a lawyer he knew that in
October of 1940 the SS was placed beyond reach of the law. As a lawyer
he certainly knew that by the thirteenth amendment to the citizenship
law the Jews were turned over to the police and so finally deprived of
the scanty legal protection they had theretofore had. He also knew,
for it was part of the same law, of the sinister provisions for the
confiscation of property upon death of the Jewish owners, by the police.
Notwithstanding these facts, he maintained his friendly relations with
the leaders of the SS, including Himmler, Kaltenbrunner, Gebhardt, and
Berger. He refers to Himmler, one of the most sinister figures in the
Third Reich, as his “old and trusty friend.” He accepted and retained
his membership in the SS, perhaps the major instrument of Himmler’s
power. Conceding that the defendant did not know of the ultimate mass
murders in the concentration camps and by the Einsatzgruppen, he knew
the policies of the SS and, in part, its crimes. Nevertheless he
accepted its insignia, its rank, its honors, and its contacts with the
high figures of the Nazi regime. These were of no small significance in
Nazi Germany. For that price he gave his name as a soldier and a jurist
of note and so helped to cloak the shameful deeds of that organization
from the eyes of the German people.
Upon the evidence in this case it is the judgment of this Tribunal that
the defendant Altstoetter is guilty under count four of the indictment.
This Tribunal has held that it has no jurisdiction to try any defendant
for the crime of conspiracy as a separate substantive offense, but we
recognize that there are allegations in count one of the indictment
which constitute charges of direct commission of war crimes and crimes
against humanity. However, after eliminating the conspiracy charge
from count one, we find that all other alleged criminal acts therein
set forth and committed after 1 September 1939 are also charged as
crimes in the subsequent counts of the indictment. We therefore find it
unnecessary to pass formally upon the remaining charges in count one.
Our pronouncements of guilt or innocence under counts two, three, and
four dispose of all issues which have been submitted to us.
Concerning those defendants who have been found guilty, our conclusions
are not based solely upon the facts which we have set forth in the
separate discussions of the individual defendants. In the course of
9 months devoted to the trial and consideration of this case, we
have reached conclusions based upon evidence and observation of the
defendants which cannot fully be documented within the limitations of
time and space allotted to us. As we have said, the defendants are
not charged with specific overt acts against named victims. They are
charged with criminal participation in government-organized atrocities
and persecutions unmatched in the annals of history. Our judgments are
based upon a consideration of all of the evidence which tends to throw
light upon the part which these defendants played in the entire tragic
drama. We shall, in pronouncing sentence, give due consideration to
circumstances of mitigation and to the proven character and motives of
the respective defendants.
[Signed] JAMES T. BRAND
Presiding Judge
MALLORY B. BLAIR
Judge
JUSTIN W. HARDING
Judge
VIII. SEPARATE OPINION BY JUDGE BLAIR
OPINION OF MALLORY B. BLAIR, JUDGE OF
MILITARY TRIBUNAL III
I concur in the final judgment and verdict filed herein, which I have
signed. A difference of view has arisen, however, with respect to
certain findings and conclusions made in the judgment under the title
“Source of Authority of Control Council Law No. 10”. Under this title
a lengthy and able discussion is made in the judgment concerning the
effect and meaning of the term “unconditional surrender” of Germany to
the Allied Powers. From the meaning given to the term of “unconditional
surrender” of the armed forces of the Hitler regime and the collapse
of his totalitarian government in Germany, the view is expressed that
a distinction arises between measures taken by the Allied Powers prior
to the destruction of the German Government and those taken afterwards;
and that only the former may be tested by the Hague Regulations
because they relate only to a belligerent occupation. To support this
view, quotations are made from articles expressing views of certain
text writers, which articles are published in the American Journal of
International Law. The judgment then adopts the view expressed in the
quoted texts, which is admittedly contrary to the views of the equally
scholarly writers whose articles are also cited.
The foregoing decision is made to depend upon a determination of the
present character or status of the occupation of Germany by the Allied
Powers; that is, whether or not it is a belligerent occupation. This
interesting but academic discussion of the question has no possible
relation to or connection with the “source of authority of Control
Council Law No. 10,” which is the question posed in the judgment. No
authority or jurisdiction to determine the question of the present
status of belligerency of the occupation of Germany has been given
this Tribunal. This question of present belligerency of occupation
rests solely within the jurisdiction of the military occupants and
the executives of the nations which the members of the Allied Control
Council represent. The determination by this Tribunal that the present
occupation of Germany by the Allied Powers is not belligerent may
possibly involve serious complications with respect to matters solely
within the jurisdiction of the military and executive departments of
the governments of the Allied Powers.
If, however, any possible questions are here present for determination
with respect to (1) the character of the present status of occupation
of Germany; and (2) the present status of belligerency, such questions
can only relate to the rights of the victorious belligerent to exercise
control over Germany. Such matters as regard the American Zone are
controlled by both the written and unwritten laws, rules, and customs
of warfare and by the rights and obligations of a victorious occupant
under international law. The determination of these matters has not
been entrusted to this Tribunal. This Tribunal has not been given
any jurisdiction to exercise any sovereign power of Germany; nor
has it been given any jurisdiction to determine that because of the
unconditional surrender Germany’s sovereignty was thereby transferred
to the victorious Allied Powers. These matters are controlled in the
American Zone by the Basic Field Manual [27-10] on Rules of Land
Warfare issued (1940) by The Judge Advocate General of the United
States Army.
As concerns questions of transfer of sovereignty of a defeated
belligerent to the victorious belligerent, the foregoing rules of land
warfare provide--
“_273. Does not transfer sovereignty._--Being an incident
of war, military occupation confers upon the invading force
the right to exercise control for the period of occupation.
It does not transfer the sovereignty to the occupant, but
simply the authority or power to exercise some of the rights
of sovereignty. The exercise of these rights results from the
established power of the occupant and from the necessity for
maintaining law and order, indispensable to both the inhabitants
and to the occupying force.
“_274. Distinguished from invasion._--The state of
invasion corresponds with the period of resistance. Invasion
is not necessarily occupation, although it precedes it and
may frequently coincide with it. An invader may push rapidly
through a large portion of enemy country without establishing
that effective control which is essential to the status of
occupation. He may send small raiding parties or flying columns,
reconnoitering detachments, etc., into or through a district
where they may be temporarily located and exercise control, yet
when they pass on it cannot be said that such district is under
his military occupation.
“_275. Distinguished from subjugation or
conquest._--Military occupation in a foreign war, being
based upon the fact of possession of _enemy_ territory,
necessarily implies that the sovereignty of the occupied
territory is not vested in the occupying power. The occupation
is essentially provisional.
“On the other hand, subjugation or conquest implies a transfer
of sovereignty. Ordinarily, however, such transfer is effected
by a treaty of peace. When sovereignty passes, military
occupation, as such, must of course cease; although the
territory may, and usually does for a period at least, continue
to be governed through military agencies which have such powers
as the President or Congress may prescribe.”
And as concerns the administration of occupied territory, the same
rules of land warfare require--
“_285. The laws in force._--The principal object of the
occupant is to provide for the security of the invading army
and to contribute to its support and efficiency and the success
of its operations. In restoring public order and safety he
will continue in force the ordinary civil and criminal laws of
the occupied territory which do not conflict with this object.
These laws will be administered by the local officials as far
as practicable. All crimes not of a military nature and which
do not affect the safety of the invading army are left to the
jurisdiction of the local courts.
“_286. Power to suspend and promulgate laws._--The military
occupant may suspend existing laws and promulgate new ones when
the exigencies of the military service demand such action.”
Manifestly this Tribunal, created for the sole purpose of trying and
punishing war criminals in the broadest sense of that term as used
in Control Council Law No. 10, has not by such law been given any
jurisdiction to determine matters relating to the far reaching power
or authority which the foregoing rules authorize a military occupant
to exercise provisionally. In consequence, the lengthy discussion
of the far reaching power or authority which the Allied Powers are
now exercising in Germany has no material relation to any question
before us for determination, and particularly the question of the
“source of the authority of Control Council Law No. 10”. Certainly
this Tribunal has no jurisdiction to determine whether or not the
military or executive authorities have exceeded their authority or
whether or not they are exercising in fact the sovereign authority of
Germany, or whether by her unconditional surrender Germany has lost all
sovereignty. The exercise of such powers has to do with provisional
matters of occupation and operates presently and in future. Our
jurisdiction extends to the trial of war criminals for crimes committed
during the war and before the unconditional surrender of Germany. This
jurisdiction is determined by entirely different laws.
Under the foregoing rules of military operation there is no rule which
would, because of the unconditional surrender of the German armed
forces, transfer the sovereignty of Germany to the Allied occupants,
or to either of them, in their respective zones of occupation. It
may here be pointed out that the report of 1919 by the Commission on
Responsibility of the Authors of War and Enforcement of Penalties lists
among other war crimes in violation of international law or of the laws
and customs of land warfare,“(10) the usurpation of sovereignty during
military occupation.” This rule is incident to military occupation
and was clearly intended to protect the inhabitants of any occupied
territory against the unnecessary exercise of sovereignty by a military
occupant. As concerns this Military Tribunal in the American Zone of
Occupation, the problem is dealt with and concluded by the above-quoted
rules (285–286), relating to administration of occupied territory.
No attempt has been made by the Allied Powers, or either of them, to
exercise the sovereign authority of Germany, except in the limited
sense provided for by the foregoing rules of land warfare. On 30
January 1946 the Allied Control Council enacted Law No. 11 which
repealed most of the enactments of the Nazi regime and continued in
force in all of Germany the great body of criminal law contained in
the German Criminal Code of 1871 with amendments thereto. This is in
accord with the provisions of the above-quoted rule 285. Thus in the
American Zone there has been continued in force the ordinary civil and
criminal laws of the German states, each of which has been recognized
as a sovereign power. These laws are being administered by German
local and state officials as far as can practicably be done, with the
avowed intention of the Allied Powers, and each of them, to surrender
all powers now exercised as a military occupant, particularly when the
all-Nazi militaristic influence in public, private, and cultured life
of Germany has been destroyed, and when Nazi war criminals have been
punished as they justly deserve to be punished.
Furthermore, as concerns the American Zone of Occupation, the
punishment of war leaders or criminals is being and will be carried out
by four separate procedures--
(1) Major German war leaders or criminals are tried by this and similar
military tribunals set up under Control Council Law No. 10 and Military
Government Ordinance No. 7, limited to the crimes or offenses therein
defined or recognized.
(2) The trials of Germans for the commission of war crimes against
American military personnel and for atrocities or crimes committed in
concentration camps in the area captured or occupied by the American
armed forces, are tried by special military courts set up at the
direction of the zone commander, with the theater judge advocate in
charge of the prosecution of the cases.
(3) Germans who are charged with committing crimes against humanity
upon other Germans, in violation of German law, are tried by the
ordinary German criminal courts.
(4) Other Germans who were actively responsible for the crimes of the
Hitler or Nazi regime, or who actively participated in the Nazi plans
or schemes, are tried by German tribunals under the Law for Liberation
from National Socialism and Militarism of 5 March 1946.
The purpose of the foregoing program is to carry out the objectives of
the Potsdam Agreement that “war criminals and those participating in
planning or carrying out Nazi enterprises involving or resulting in
atrocities or war crimes, shall be arrested and brought to judgment.”
The Potsdam Agreement related to punishment of all Axis war criminals.
Control Council Law No. 10 sets up the machinery to apply the Potsdam
Agreement to European Axis war criminals and particularly to German war
criminals.
The judgment further declares, however, that “in the case of Germany,
subjugation has occurred by virtue of military conquest.” This holding
is based upon the previous declarations that at the time of the
unconditional surrender of the German armed forces the Nazi government
had completely disintegrated, requiring the victorious belligerent to
take over the complete exercise and control of governmental affairs
of Germany, and thereby resulting in the transfer of her sovereignty
to the victorious Allied Powers. In this holding, the judgment simply
attempts to apply the provisions of rule 275 that “subjugation or
conquest implies a transfer of sovereignty.” Obviously this rule
implies that the question of subjugation is one of fact or intention
to be determined by the successful belligerent. There has been no act
or declaration of the Allied Powers, either before or since their
occupation of Germany under the terms of the unconditional surrender,
which could possibly be construed as showing that they intend by the
subjugation and occupation of Germany to transfer her sovereignty to
themselves. To the contrary every declaration that has been made by
the Allied Powers with respect to their occupancy of Germany and the
enactment of laws for her control during the occupation has emphasized
the fact that the ultimate purpose of such occupancy is to destroy
the Nazi form of government and militarism in Germany so that as thus
extirpated from these influences she may take her place in the comity
of the nations of the world.
The declaration made in the judgment that Germany has been subjugated
by military conquest and that therefore her sovereignty has been
transferred to the successful belligerent Allied Powers cannot be
sustained either as a matter of fact or under any construction of
the foregoing rules of land warfare. The control and operation of
Germany under the Allied Powers’ occupation is provisional. It does
not transfer any sovereign power of Germany other than for the limited
purpose of keeping the peace during occupancy, and for the ultimate
rectification of the evils brought about by the Nazi regime and
militarism, and in order to destroy such influences and to aid in the
establishment of a government in and for Germany under which she may in
the future earn her place in the comity of nations. In any event this
Tribunal has no power or jurisdiction to determine such questions.
The judgment further declares that Control Council Law No. 10 has a
dual aspect. The judgment states:
“In its first aspect and on its face it purports to be a statute
defining crimes and providing for the punishment of persons who
violate its provisions. It is the legislative product of the
only body in existence having and exercising general lawmaking
power throughout the Reich.”
Obviously this aspect or theory of reasoning is predicated upon the
previous declarations that since at the time of the unconditional
surrender the Nazi government had completely collapsed, and that,
since the Allied Powers assumed the entire control of the governmental
function of Germany, her sovereignty was thereby transferred to the
Allied Powers. It is then declared that Control Council Law No. 10
was enacted by the Allied Control Council in and for Germany in the
exercise of this transferred German sovereignty. Under this reasoning
Control Council Law No. 10 merely became a local law in and for
Germany because Germany, in the exercise of her national governmental
sovereignty, could not enact the law as international law. Nor can the
Allied Control Council in the exercise of the transferred sovereignty
of Germany enact international law.
The judgment further declares that the same and only supreme
legislative authority in and for Germany, the Allied Control Council,
gave this Tribunal jurisdiction and authority to enforce the local
German law so enacted by it and to punish crimes in violation of it,
including crimes by German nationals against German nationals as
authorized by Control Council Law No. 10. From the foregoing premise
the conclusion is inescapable that the Allied Control Council in the
exercise of the sovereign power of Germany has enacted the law in and
for Germany and has authorized this Tribunal to punish criminals who
violated the law in the manner of a German police court.
The foregoing conclusion is based upon the articles by Freeman and
Fried, from which quotations are made in the judgment. This same
theory by Fried has been expressed in a subsequent statement wherein
he states, after reviewing the foregoing facts with respect to the
unconditional surrender of the armed forces and the disintegration of
the Nazi government, that--
“This Tribunal (III) has the double quality of being an
international court and, owing to the special situation of
Germany at the present time, also a German court.”
This is the only possible conclusion that can be reached in the
premises stated.
The second aspect of Control Council Law No. 10 is declared by the
judgment to be as follows:
“We have discussed C. C. Law 10 in its first aspect as
substantive legislation. We now consider its other aspect.
Entirely aside from its character as substantive legislation, C.
C. Law 10, together with Ordinance No. 7, provides procedural
means previously lacking for the enforcement within Germany
of certain rules of international law which exist throughout
the civilized world independently of any new substantive
legislation.”
There can be no serious disagreement as regards this aspect or theory
of Control Council Law No. 10, but it is contrary to the first aspect
or theory of the law. The two aspects are diametrically opposed to
each other as to the “source of authority for Control Council No.
10.” They are so conflicting with respect to the claims that the law
is both local law and international law that either one or the other
aspect cannot exist. The legislature of a national state cannot by a
legislative act make international law binding upon other nations. Only
an international legislative body may so legislate and no such body has
ever existed.
With regard to the premises supporting the view that Control Council
Law No. 10 has two aspects, the judgment apparently contains other
conflicting statements with respect to the “source of authority for
Control Council Law No. 10” and also with respect to the basis of the
authority of the legislative body to enact the law. The judgment states
at one place--
“International law is not the product of statute. Its content
is not static. The absence from the world of any governmental
body authorized to enact substantive rules of international law
has not prevented the progressive development of that law. After
the manner of the English common law, it has grown to meet the
exigencies of changing conditions.”
The judgment recites at another point--
“Since the Charter IMT and C. C. Law 10 are the product of
legislative action by an international authority, it follows
of necessity that there is no national constitution of any one
state which could be invoked to invalidate the substantive
provisions of such international legislation.”
At still another place the judgment recites--
“In its aspect as a statute defining crime and providing
punishment the limited purpose of C. C. Law 10 is clearly set
forth. It is an exercise of supreme legislative power in and for
Germany. It does not purport to establish by legislative act any
new crimes of international applicability.”
Still at another place in the judgment it is declared that--
“Only by giving consideration to the extraordinary and temporary
situation in Germany can the procedure here be harmonized with
established principles of national sovereignty. In Germany
an international body (the Control Council) has assumed and
exercised the power to establish judicial machinery for the
punishment of those who have violated the rules of the common
international law, a power which no international authority
without consent could assume or exercise within a state having a
national government presently in the exercise of its sovereign
powers.”
Thus, in the first quotation, the judgment states that there has never
been an international legislature and that, therefore, international
law is not the product of statute; whereas, in the second quotation,
it is contended that Control Council Law No. 10 is “the product of
legislative action by an international authority.” The third recitation
is that Control Council Law No. 10 “is an exercise of supreme
legislative power in and for Germany.”
The fourth quotation doubts the legality of our procedure unless
the international body in Germany (the Allied Control Council) has
assumed and exercised the power to establish judicial machinery for
punishment of crimes in violation of international law. The source of
the authority to set up courts and machinery for punishment of German
war criminals does not depend in any manner upon the exercise of any
sovereign power of Germany. This matter will be later discussed.
With these conflicting conclusions as to the source of authority of
Control Council Law No. 10, I must respectfully disagree. But the
judgment saves itself from them by finally waiving them aside and
holding as follows:
“For our purposes, however, it is unnecessary to determine
the present situs of ‘residual sovereignty’. It is sufficient
to hold that, by virtue of the situation at the time of
unconditional surrender, the Allied Powers were provisionally
in the exercise of supreme authority, valid and effective
until such time as, by treaty or otherwise, Germany shall be
permitted to exercise the full powers of sovereignty. We hold
that the legal right of the Four Powers to enact C. C. Law 10 is
established and that the jurisdiction of this Tribunal to try
persons charged as major war criminals of the European Axis must
be conceded.”
The judgment makes the further and additional declaration that--
“The fact that the Four Powers are exercising supreme
legislative authority in governing Germany and for the
punishment of German criminals does not mean that the
jurisdiction of this Tribunal rests in the slightest degree
upon any German law, prerogative, or sovereignty. We sit as a
Tribunal drawing its sole power and jurisdiction from the will
and command of the victor states. The power and right exerted is
that of victors, not of the vanquished.”
With these declarations there is no disagreement. They waive and
completely nullify the foregoing conflicting declarations of the
judgment with regard to the “source of authority of Control Council Law
No. 10” and that its enactment was the exercise of German sovereignty
by the four Allied Powers.
It is my view that the jurisdiction of this Tribunal is limited to the
area or field of international law which relates to the punishment of
war criminals in the fullest sense of that term. The source of its
Charter and jurisdiction to try and punish European Axis war criminals
is as follows:
_Charter and Jurisdiction of this Tribunal_
The charter and jurisdiction of this Military Tribunal are found within
the framework of four instruments or documents: (1) Allied Control
Council Law No. 10; (2) Military Government Ordinance No. 7; (3) the
Charter of the International Military Tribunal; and (4) the judgment of
the International Military Tribunal. These instruments and documents
confer power or jurisdiction upon this Tribunal to try and punish
certain European Axis war criminals. The source of Control Council Law
No. 10 and Ordinance 7 and the authority to enact or issue them are
found in certain unilateral agreements, instruments, and documents of
the Allied Powers to which brief reference will be here made.
By the Moscow Declaration of 30 October 1943 on German war atrocities
and crimes, the three Allied Powers (the United Kingdom, the United
States, and the Soviet Union) declared that at the time of granting
any armistice to Germany, “those German officers and men and the
members of the Nazi Party who have been responsible for or have taken
a consenting part in” committing such atrocities or crimes will
be adjudged and punished for their abominable deeds. By the Yalta
Conference of 11 February 1945 the same three Powers declared that only
“the unconditional surrender” of the Axis powers will be accepted. The
plan for enforcing the unconditional surrender terms was agreed upon
and provides that the Allied Powers will each occupy a separate zone of
Germany with coordinated administration and control through a Central
Control Council composed of the supreme commanders at Berlin. France
was to be invited to take over a zone of occupation and to participate
as a fourth member of the Control Council for Germany. Among other
things, the Allied Powers declared that they intended to “bring all war
criminals to just and swift punishment.” They further declared that
they intended “to destroy German militarism and nazism and to insure
that Germany will never again be able to disturb the peace of the
world.” With these provisional matters we are not concerned here.
The German armed forces unconditionally surrendered on 8 May 1945.
France accepted the invitation to become a fourth member of the Allied
Control Council and later took over a zone of occupation.
By the Potsdam Agreement of 5 June 1945 and the declaration of the
Joint Chiefs of Staff of 2 August 1945 at Berlin, the then Four
Allied Powers expressly declared and provided that the punishment of
European Axis war criminals “was made a primary task of the military
occupation of Germany.” They further declared that certain far reaching
provisional measures would be undertaken in Germany to rid her people
of nazism and of militarism and to insure the peace and safety of the
world, and so that the German people thus extirpated will in the future
take their place in the comity of nations. With these latter provisions
we are not here concerned. The Allied Control Council for Germany is
composed of the Joint Chiefs of Staff of the Four Allied Powers.
By the London Agreement of 8 August 1945, the Four Allied Powers
referred to the Moscow Declaration and authorized, after consultation
with the Allied Control Council for Germany, the establishment of an
International Military Tribunal to try certain of the European Axis
war criminals. The Charter of the Tribunal was attached to and made
a part of the London Agreement. This Charter described the power and
jurisdiction of the Tribunal and defined or recognized the crimes for
which the European Axis war criminals were to be tried.
The foregoing avowed policy of the Allied Powers for the punishment
of European war criminals or enemy persons was thereafter approved
and sanctioned by 19 of the United Nations in accordance with the
provisions of article V of the London Agreement.
The International Military Tribunal was duly created and held its first
session on 18 October 1945. The actual trial began on 20 November 1945
of 22 alleged major war criminals; and by the judgment of 1 October
1946 some of them were given death sentences; some of them were given
life imprisonment; some were given lesser prison terms; and others of
them were acquitted.
After the foregoing trial began, the Allied Control Council for
Occupied Germany met and on 20 December 1945 enacted Control Council
Law No. 10, which defined the jurisdiction of this and similar military
tribunals and recognized as crimes to be tried by them--
1. Crimes against peace;
2. War crimes;
3. Crimes against humanity; and
4. Membership in categories of a criminal group or organization
declared criminal by the International Military Tribunal.
Control Council Law No. 10 recognizes as a crime, membership in any
organization declared to be criminal by the International Military
Tribunal.
Article 9 of the London Charter provides that the IMT may declare
any group or organization of which an individual was a member to be
a criminal organization. Article 10 provides that the IMT may also
declare membership in an organization found by it to be criminal to be
a crime. This the IMT did and further declared that its Charter makes
the declaration of criminality against an accused organization final.
The IMT then fixed the character of membership which would be regarded
as criminal, and expressly limited its declaration of group criminality
to persons who became or remained members of the organization with
knowledge that it was being used for criminal acts or who were
personally implicated as members of the organization in the commission
of such crimes. These findings and conclusions of the IMT are binding
upon this Tribunal.
The Control Council declared that this law or procedure was intended to
reach the German war criminals to be tried by the occupying powers of
Germany in their respective zones of occupation. The preamble stated
that the law was enacted by the authority of and to give effect to
the Moscow Declaration, the London Agreement, and the Charter of the
International Military Tribunal. Thus, the avowed purpose of the Allied
Powers to punish German war criminals was given quadripartite agreement
and application under Control Council Law No. 10.
Military Government Ordinance No. 7 was issued on 26 October 1946
“pursuant to the powers of the Military Governor of the United States
Zone of Occupation within Germany, and further pursuant to the power
conferred upon the Zone Commander by Control Council Law No. 10,
and articles 10 and 11 of the Charter of the International Military
Tribunal annexed to the London Agreement of 8 August 1945,” authorizing
the establishment of certain “tribunals to be known as Military
Tribunals”. Accordingly, Military Tribunal III was established on 13
February 1947, by virtue of the provisions of said Military Government
Ordinance No. 7, “with powers to try and punish persons charged with
offenses recognized as crimes in article II of Control Council Law No.
10, including conspiracies to commit such crimes.” And article X of
Ordinance No. 7 provides that--
“The determinations of the International Military Tribunal
in the judgments in Case No. 1 that invasions, aggressive
acts, aggressive wars, crimes, atrocities or inhumane acts
were planned or occurred, shall be binding on the tribunals
established hereunder and shall not be questioned except
insofar as the participation therein or knowledge thereof of
any particular person may be concerned. Statements of the
International Military Tribunal in the judgment in Case No. 1
shall constitute proof of the facts stated, in the absence of
substantial new evidence to the contrary.”
As so created and established this and other similar military tribunals
are international in character and jurisdiction. They are authorized
and empowered to try and punish the “major war criminals of the
European Axis”; to try and punish “those German officers and men and
members of the Nazi Party who have been responsible for, and have taken
a consenting part in,” and have aided, abetted, ordered, or have been
connected with plans or enterprises involving the commission of any
offense recognized in Control Council Law No. 10 as a crime.
The jurisdiction and power of this and similar tribunals to try and
punish war criminals find full support in established international law
relating to warfare. This law is that during hostilities and before
their formal termination belligerents have concurrent jurisdiction over
war crimes committed by the captured enemy persons in their territory
or against their nationals in time of war. Accordingly, it has been
generally recognized that belligerents during the war may legitimately
try and punish enemy persons charged with infractions of the rules of
war, if the accused is a prisoner of war and if the act charged has
been made a penal offense by the generally accepted laws and customs
of war. In such cases the accused usually is tried before the court,
commission, or tribunal set up by and adjudged in accordance with the
laws and procedure of the victor. After armistice or peace agreement
the matter of punishment of war crimes is determined by the terms
thereof.
The foregoing law was applied by the judgment of the International
Military Tribunal, which after referring to the Charter creating it,
declared that--
“The Charter is not an arbitrary exercise of power on the part
of the victorious nations, but in the view of the Tribunal,
as will be shown, it is the expression of international law
existing at the time of its creation; and to that extent is
itself a contribution to international law.
“The Signatory Powers created this Tribunal, defined the law it
was to administer, and made regulations for the proper conduct
of the trial. In doing so, they have done together what any one
of them might have done singly; for it is not to be doubted
that any nation has the right thus to set up special courts to
administer law. With regard to the constitution of the court,
all that the defendants are entitled to ask is to receive a fair
trial on the facts and law.”[677]
Even prior to the foregoing IMT judgment, Lord Chief Justice Wright
had so construed the London Charter in an article appearing in volume
62 of the Law Quarterly Review, January 1946, page 41. He limits the
discussion to the punishment of war criminals. He there states that--
“All I am here concerned with is a limited area of international
law, that relating to the trial and punishment of war criminals
in the full sense of that term, as adopted in the Agreement
of 8 August 1945, made in London between the Governments
of the United Kingdom, of the United States, of the French
Republic, and of the Union of Soviet Socialist Republics, which
established a Tribunal for the trial and punishment of the major
war criminals of the European Axis countries. The Agreement
includes as falling within the jurisdiction of the Tribunal
persons who committed the following crimes: (a) crimes against
peace, which means in effect planning, preparation, initiation,
or waging of a war of aggression; (b) war crimes, by which term
is meant mainly violation of the laws and customs of war; (c)
crimes against humanity, in particular murder, extermination,
enslavement, deportation and other inhumane acts committed
against any civilian population.
“The Tribunal so established is described in the Agreement
as an International Military Tribunal. Such an International
Tribunal is intended to act under international law. It is
clearly to be a judicial tribunal constituted to apply and
enforce the appropriate rules of international law. I understand
the Agreement to import that the three classes of persons which
it specifies are war criminals, that the acts mentioned in
classes (a), (b), and (c) are crimes for which there is properly
individual responsibility; that they are not crimes because of
the agreement of the four governments, but that the governments
have scheduled them as coming under the jurisdiction of the
Tribunal because they are already crimes by existing law. On
any other assumption the court would not be a court of law but
a manifestation of power. The principles which are declared in
the Agreement are not laid down as an arbitrary direction to
the court but are intended to define and do, in my opinion,
accurately define what is the existing international law on
these matters.”
Similar holdings may be made with respect to Control Council Law No. 10
which recognizes the same basic crimes to be tried by this Tribunal as
were recognized by the London Charter. Each such law is an expression
of the treaties, rules, and customs of international law on crimes
against peace, war crimes, and crimes against humanity; each is in
effect and purpose a listing of crimes in violation of preexisting
international law and each “to that extent is itself a contribution to
international law.” (IMT judgment, _supra_.) But IMT did not rest
its declaration of authority and its procedure upon the Charter which
created it, but on the contrary, discussed at length the matters before
it from the standpoint of preexisting international law. No defendant
was convicted by the International Military Tribunal except for crimes
in violation of preexisting international law which they held to
exist even as to crimes against peace. It supported its judgment that
each crime was based upon preexisting international law or custom of
war, discussing at length the matter of violation of international
treaties and agreements, particularly the Hague Conventions of 1899 and
1907, the Peace Conference of 1919, the violation of the Versailles
Treaty, the various treaties of mutual guarantee, arbitration, and
nonaggression, and the Kellogg-Briand Pact.[678]
Under American law (National Defense Act of 4 June 1920) a military
court or commission may be set up to try persons in the custody of the
United States Government or its armed forces for crimes in violation
of international law. The right to punish such war criminals is not
dependent upon any question of unconditional surrender or of whether
hostilities have ceased. As regards these matters, in the recent
case of Yamashita, the United States Supreme Court makes several
pronouncements applicable here, as follows:
“The trial and punishment of enemy combatants who have committed
violations of the law of war is thus not only a part of the
conduct of war operating as a preventive measure against such
violation, but is an exercise of the authority sanctioned by
Congress to administer the system of military justice recognized
by law of war, that sanction is without qualification as to the
exercise of this authority so long as a state of war exists,
from its declaration until peace is proclaimed. Articles of War,
articles 2, 15.
* * * * * * *
“The mere fact that hostilities have ceased does not preclude
the trial of offenders against the law of war before a military
commission, at least until peace has been officially recognized
by treaty or proclamation of the political branch of the
government. Articles of War, article 15.
“The extent to which power to prosecute violations of the laws
of war shall be exercised before peace is declared rests, not
with courts, but with the political branch of the government,
and may itself be governed by terms of an armistice or a treaty
of peace.”[679]
The importance of the Yamashita decision is apparent. The International
Military Tribunal was established by the London Agreement, 8 August
1945, with its Charter annexed thereto. On entirely similar principles
the Charter of the International Military Tribunal, or other tribunals
or commissions, for the trial of major war criminals in the Far East
was proclaimed on 19 January 1946. These tribunals or commissions
of similar principles were all established in accordance with the
Berlin Agreement of 2 August 1945, which defined the meaning of the
unconditional surrender of the armed forces of the Axis Powers,
and declared that the Allied Powers intended to punish captured
war criminals of the European Axis Powers. All such commissions or
tribunals are deemed to exercise military powers and therefore are
described as “Military Tribunals.” This includes the tribunals created
under the provisions of Control Council Law No. 10 and Ordinance 7.
The judges of these Tribunals set up under Law No. 10 and Ordinance 7
are appointed by the War Department, by the acts of the Secretary of
War, by the President of the United States as Commander-in-Chief of the
Armed Forces, and by the Commanding General of the American Zone of
Occupation in Germany. These judges take an oath to faithfully perform
the task thus assigned to them to the best of their ability.
The Supreme Court of the United States had previously applied the rule
announced in the Yamashita case in the case of Quirin and six others
(_317 U. S. 1_). The court declared that:
“The ‘law of war’ includes that part of the law of nations which
prescribes for the conduct of war the status, rights, and duties
of enemy nations as well as of enemy individuals.
“Under the ‘law of war’ lawful combatants are subject to
capture and detention as prisoners of war by opposing military
forces and unlawful combatants are likewise subject to capture
and detention but in addition they are subject to trial and
punishment by military tribunals for acts which render their
belligerency unlawful.”
This authority is expressly conferred by article 15 of the Articles of
War enacted by Congress on 4 June 1920.
It may be here again observed that international law is an unwritten
law. There has never been an international legislative authority.
The law of nations is founded upon various international rules and
customs, which gradually obtain universal recognition and thus become
international law. Likewise the law of war is built upon treaties
and upon the usages, customs, and practices of warfare by civilized
nations, which gradually obtain universal recognition, and also become
established by the general principles of justice as applied by jurists
and military courts, tribunals, or commissions. And as held by the IMT:
“The Signatory Powers created this Tribunal, defined the law it
was to administer, and made regulations for the proper conduct
of the trial. In doing so, they have done together what any one
of them might have done singly; for it is not to be doubted
that any nation has the right thus to set up special courts to
administer law. With regard to the constitution of the court,
all that the defendants are entitled to ask is to receive a fair
trial on the facts and law.”[680]
After the unconditional surrender, the Allied Powers have obtained the
actual custody of many of the leaders of the German Government, and
the German armies, and many of those who were active participants in
nameless atrocities against prisoners of war, other persons alleged
in the indictment, and civilians of invaded countries, and the power
to try such Axis war criminals must be conceded. This power to try
these crimes could have been exercised as an entirely military one,
but such a method would not accord with Anglo-Saxon or United States
ideology. It has been planned to conduct orderly trials, and fair
trials, in accordance with the American concepts of due process, giving
the accused the benefit of indictment, notice, counsel of their own
choosing, witnesses in their behalf, proof beyond a reasonable doubt,
and judgment by experienced jurists who are under the obligations of a
solemn oath to render even and exact justice. Surely this is giving to
the accused rights which they denied to their helpless victims.
It may be here observed that each of the defendants in this case has
been captured or arrested and is now in the custody and jurisdiction of
this Tribunal. Each of them has been charged by the indictment in this
case with having committed two or more of the offenses recognized as
crimes by the foregoing instruments which define and limit the Charter
and jurisdiction of this Tribunal and which authorize this Tribunal to
try and punish any individual found guilty of having committed such
crimes or offenses. There has been no formal declaration of peace and
officially a state of war still exists between the Allied Powers and
Germany.
Under the doctrine of the Quirin and Yamashita cases, the Allied
Powers, or either of them, have the right to try and punish individual
defendants in this case. These cases hold that where individual
offenders are charged with offenses against the laws of nations, and
particularly the laws of war, they may be tried by military tribunals
or courts set up by the offended government or belligerent power. In
such cases no question as to the character of military occupation nor
as to the character of belligerency is involved, or whether or not
hostilities have ceased. These cases recognize the right to try and
punish individuals who are in the custody and jurisdiction of such
military court or commission so long as peace has not been officially
declared by the authorities competent to conclude such matters.
After armistice or peace agreement, the matter of punishing war
criminals is a question for the parties making the peace agreement to
determine. In consequence, the question of whether hostilities have
ceased is not material. And as is so ably said in the Yamashita case
(_66 S. Ct. 340_)--
“The extent to which power to prosecute violations of the laws
of war shall be exercised before peace is declared rests, not
with courts, but with the political branch of the Government
and may itself be governed by terms of an armistice or a treaty
of peace.”
_Conspiracy_
Count one of the indictment charged the defendants with having,
pursuant to a common design, conspired and agreed together and with
each other and with divers other persons to commit war crimes and
crimes against humanity, as defined in article II of Control Council
Law No. 10, in that each of the defendants participated either
as a principal, or an accessory, or ordered and abetted, or took
a consenting part in, or was connected with plans or enterprises
involving the commission of the war crimes and crimes against
humanity as set forth in the indictment; and that each defendant so
participating was therefore responsible for his own acts and for the
acts of all other defendants in the commission of the crimes.
This Tribunal has ruled that under no provision of Law No. 10 was
conspiracy made a separate substantive and punishable crime. But the
defendants may be punished for having committed war crimes or crimes
against humanity by acts constituting a conspiracy to commit them.
Under the foregoing allegations of count one, the defendants are
charged with having committed war crimes and crimes against humanity by
acts constituting a conspiracy to commit them. This Tribunal has not
applied or convicted any defendant under the conspiracy charge of the
indictment. All defendants convicted, save one, have been convicted
under a plan or scheme to commit the alleged war crimes or crimes
against humanity. The same facts are alleged and proved as constituting
a conspiracy to commit the same war crimes and crimes against humanity.
The same facts under which certain defendants were convicted of having
committed war crimes and crimes against humanity by carrying out the
Night and Fog decree were alleged and, by the same evidence, proved to
be a common design or conspiracy to commit such crimes. The same is
true of the plan or scheme to persecute and exterminate Poles and Jews
upon racial grounds.
There is no material difference between a plan or scheme to commit a
particular crime and a common design or conspiracy to commit the same
crime. In legal concept there can be no material difference to plan,
scheme, or conspire to commit a crime. But of them all, the conspiracy
to commit the crimes charged in the indictment is the most realistic
because the Nazi crimes are in reality indivisible and each plan,
scheme, or conspiracy proved in the instant case was in reality an
interlocking part of the whole criminal undertaking or enterprise.
That Control Council Law No. 10 and Ordinance 7 authorize a conviction
for committing war crimes and crimes against humanity by conspiracy to
commit certain acts, which are defined or recognized as war crimes or
crimes against humanity by international law and by Control Council Law
No. 10, is clear.
In paragraph I (_a_) of article II of Control Council Law No. 10, as in
article 6 (_a_) of the London Charter, it is provided that a conspiracy
to initiate or wage an aggressive war is a crime against peace. The
defendants are not charged with having committed or conspired to
commit a crime against the peace but were so charged in the first
international trial.
In discussing the issue of conspiracy the International Military
Tribunal limited the scope of its inquiry to consideration of
conspiracy to initiate or wage an aggressive war. It did not determine
whether a conspiracy could be recognized as a crime under international
law relating to war, or whether a conspiracy to commit such a crime
had in fact been proved. It merely held that the concept of conspiracy
under its Charter was more restricted than that set forth in the
indictment which the prosecution sought to prove. That Tribunal did not
construe article II of Control Council Law No. 10 to determine whether
it authorized the punishment of a separate crime of conspiracy. Neither
did it determine whether the offenses of war crimes or crimes against
humanity could be committed by the acts which in fact constitute a
conspiracy to commit such crimes.
The Charter of the International Tribunal provided in article 6 (_c_)
that:
* * * * * * *
“Leaders, organizers, instigators and accomplices participating
in the formulation or execution of a common plan or conspiracy
to commit any of the foregoing crimes are responsible for all
acts performed by any persons in execution of such plan.”
This provision of the International Charter is not found in Control
Council Law No. 10. In lieu thereof the following pertinent and
significant language was used [Article II]:
“2. Any person without regard to nationality or the capacity
in which he acted, is deemed to have committed a crime as
defined in paragraph 1 of this article, if he was (_a_)
a principal or (_b_) was an accessory to the commission
of any such crime or ordered or abetted the same or (_c_)
took a consenting part therein or (_d_) was connected with
plans or enterprises involving its commission or (_e_)
was a member of any organization or group connected with the
commission of any such crime or (_f_) with reference to
paragraph 1 (_a_), if he held a high political, civil or
military (including General Staff) position in Germany or in
one of its Allies, co-belligerents or satellites, or held high
position in the financial, industrial or economic life of any
such country.”
This language in detail defines the acts which constitute aiding and
abetting and is so specific and so comprehensive that it has defined
conspiracy without employing the word. The language omits no element of
the crime of conspiracy. As a rule there can be no such thing as aiding
and abetting without some previous agreement or understanding or common
design in the execution of which the aider and abetter promoting that
common design has made himself guilty as a principal.
The foregoing provisions of paragraph 2 were intended to serve some
useful purpose. War crimes and crimes against humanity had been defined
or recognized and illustrated in paragraph 1 of Law No. 10 and did
not need further explanation. Obviously, the provisions of paragraph
2 were intended to provide that if the act of one person did not
complete the crime charged, but the acts of two or more persons did,
then each person “connected with the plans or enterprises involving its
commission” is guilty of the crime. This is the gravamen of the law
of conspiracy. Conspiracy is universally known as a plan, scheme, or
combination of two or more persons to commit a certain unlawful act or
crime.
The conspiracies charged in the indictment and defined by Law No.
10 are conspiracies or plans to commit war crimes or crimes against
humanity, which are established crimes under international laws or
customs of war. In the very nature of such crimes their commission is
usually by more than one person. Therefore the purpose of showing the
conspiracy to commit such crimes was to establish the participation of
each defendant and the degree of his connection with such crimes.
Since the language of paragraph 2 of Law No. 10 expressly provides
that any person connected with plans involving the commission of a
war crime or crime against humanity is deemed to have committed such
crimes, it is equivalent to providing that the crime is committed
by acts constituting a conspiracy under the ordinary meaning of the
term. Manifestly it was not necessary to place the label “conspiracy”
upon acts which themselves define and constitute in fact and in law a
conspiracy. Paragraph 2 was so interpreted by the Zone Commander when
he issued Military Government Ordinance No. 7, which authorized the
creation of this and similar military tribunals, and which provides in
article I that--
“The purpose of this Ordinance is to provide for the
establishment of military tribunals which shall have power to
try and punish persons charged with offenses recognized as
crimes in article II of Control Council Law No. 10, including
conspiracies to commit any such crimes. * * *.”
The prosecution also placed the same interpretation upon paragraph 2,
because paragraph 2 of count one of the indictment charges that the
“defendants herein * * * were principals in, accessories to, ordered,
abetted, took a consenting part in, and were connected with plans and
enterprises involving the commission of war crimes and crimes against
humanity.” Evidently the drawer of the indictment had before him
paragraph 2 of Control Council Law No. 10 and made its language the
basis of the charging of a conspiracy to commit war crimes or crimes
against humanity.
Furthermore, it is apparent that the declared purpose of Ordinance No.
7, as set forth in article I thereof, is part and parcel of the entire
ordinance as much as any other article thereof and the other articles
of the ordinance, as well as Law No. 10, must be construed and applied
in the light of article I. In fact article I is distinctly that portion
of Ordinance No. 7 which defines the jurisdiction of the military
tribunals authorized by it.
The Tribunal should therefore declare that military tribunals as
created by Ordinance No. 7 have jurisdiction over “conspiracy to
commit” any and all crimes defined in article II of Law No. 10. After
all, from a practical standpoint, it can make little difference to any
defendant whether the Tribunal finds that such defendant is a member of
a conspiracy to commit crimes on the one hand, this being the language
of article I of Ordinance No. 7, or on the other hand whether the
Tribunal should find he was (a) a principal or (b) an accessory or that
he abetted the same or (c) took a consenting part therein or (d) was
connected with plans or enterprises involving commission of crimes,
these latter descriptions being the language of paragraph 2 of article
II of Law No. 10.
In most modern English and American jurisprudence, conspiracy pure and
simple is not recognized as a separate crime. The only legal importance
of finding that any accused person is a party to a conspiracy is to
hold the conspirator responsible as an aider and abetter of criminal
acts committed by other parties to the conspiracy. If the party
knowingly aided and abetted in the execution of the plan and became
connected with plans or enterprises involving the commission of war
crimes and crimes against humanity, he thereby became a co-conspirator
with those who conceived the plan. It makes no difference whether the
plan or enterprise was that of only one of the conspirators. Upon this
point we quote from the judgment of the International Tribunal--
“The argument that such common planning cannot exist where there
is complete dictatorship is unsound. A plan in the execution
of which a number of persons participate is still a plan, even
though conceived by only one of them; and those who execute the
plan do not avoid responsibility by showing that they acted
under the direction of the man who conceived it.”[681]
This holding answers the further contention that one connected
with execution of such a plan of Hitler could not be guilty of
conspiracy, or punishable for helping carry out the plan or scheme as a
co-conspirator. It is undoubtedly true that not all of the defendants
had any part in the formulation of the plan, scheme, or conspiracy of
the Nazi regime’s Ministry of Justice to carry out the NN decree, but
they did know of its illegality and inhumane purpose and helped to
carry it out. The facts show beyond a reasonable doubt that they did
knowingly aid, abet, and become connected with the plan, scheme, or
conspiracy in aid of waging the war and committed those war crimes [and
crimes] against humanity as charged in the indictment. A more perfect
plan or scheme to show a conspiracy to commit crimes could hardly be
written than was the agreement entered into by the OKW, Ministry of
Justice, and the Gestapo to execute and carry out the Hitler Night and
Fog decree. All the defendants who took a part in the execution and
carrying out of the NN Decree knew of its illegality and of its cruel
and inhumane purposes.
[Signed] MALLORY B. BLAIR
Judge of Military Tribunal III
SENTENCES[682]
THE MARSHAL: The Tribunal is again in session.
PRESIDING JUDGE BRAND: The Tribunal is informed that the
defendant Schlegelberger is in a condition of illness rendering it
impossible for his attendance and that his counsel desires that
sentence be pronounced in his absence; in other words, that he waive
the presence of the defendant Schlegelberger at the time of sentence.
Is our understanding correct, Dr. Kubuschok?
DR. KUBUSCHOK: Yes, Your Honor.
PRESIDING JUDGE BRAND: The Tribunal will now impose sentence
upon those defendants who have been adjudged guilty in these
proceedings.
This Tribunal has adjudged the defendant FRANZ SCHLEGELBERGER
guilty on counts two and three of the indictment filed in this case.
For the crimes of which he has been convicted, this Tribunal sentences
him to imprisonment for life.
The Marshal will produce before the Tribunal the defendant Klemm.
HERBERT KLEMM, on the counts of the indictment on which you
have been convicted, this Tribunal sentences you to imprisonment for
life.
The Marshal will produce before the Tribunal the defendant Rothenberger.
KURT ROTHENBERGER, on the counts of the indictment on which
you have been convicted, this Tribunal sentences you to seven years’
imprisonment. You will receive credit upon your sentence for the time
already spent in confinement awaiting and pending trial.
The Marshal will bring before the Tribunal the defendant Ernst Lautz.
ERNST LAUTZ, on the counts of the indictment on which you have
been convicted, this Tribunal sentences you to ten years’ imprisonment.
You will receive credit upon your sentence for the time already spent
in confinement awaiting and pending trial.
The Marshal will produce the defendant Wolfgang Mettgenberg.
WOLFGANG METTGENBERG, on the counts of the indictment on which
you have been convicted, this Tribunal sentences you to ten years’
imprisonment. You will receive credit upon your sentence for the time
already spent in confinement awaiting and pending trial.
The Marshal will remove this defendant from the court and produce the
defendant Wilhelm von Ammon.
Defendant WILHELM VON AMMON, on the counts of the indictment
on which you have been convicted, this Tribunal sentences you to ten
years’ imprisonment. You will receive credit upon your sentence for the
time already spent in confinement awaiting and pending trial.
The Marshal will remove this defendant from the court and will produce
the defendant Guenther Joel.
GUENTHER JOEL, on the counts of the indictment on which
you have been convicted, this Tribunal sentences you to ten years’
imprisonment. You will receive credit upon your sentence for the time
already spent in confinement awaiting and pending trial.
The Marshal will remove this defendant from the court and will produce
the defendant Oswald Rothaug.
Defendant OSWALD ROTHAUG, on the count of the indictment
on which you have been convicted, this Tribunal sentences you to
imprisonment for life.
The Marshal will remove this defendant from the court and will produce
the defendant Rudolf Oeschey.
RUDOLF OESCHEY, on the counts of the indictment on which you
have been convicted, this Tribunal sentences you to imprisonment for
life.
The Marshal will remove this defendant from the court and will produce
the defendant Josef Altstoetter.
JOSEF ALTSTOETTER, on the count of the indictment on which
you have been convicted, this Tribunal sentences you to five years’
imprisonment. You will receive credit upon your sentence for the time
already spent in confinement awaiting and pending trial.
The Marshal will remove the defendant from the courtroom.
The Tribunal now stands adjourned without day.
THE MARSHAL: This Tribunal now adjourns without day.
(At 1745 hours, 4 December 1947, the Tribunal was adjourned.)
X. CONFIRMATION OF SENTENCES BY THE MILITARY
GOVERNOR OF THE UNITED STATES ZONE OF
OCCUPATION[683]
A. Introduction
Under articles XV and XVII of Ordinance No. 7, the sentences imposed
by a tribunal are subject to review by the Military Governor. On 18
January 1949, General Lucius D. Clay, Military Governor of the U.S.
Zone of Occupation, confirmed by separate orders the life sentences
imposed upon the defendants Klemm, Oeschey, Rothaug, and Schlegelberger
and the sentences for a term of years imposed upon the defendants
Altstoetter, von Ammon, Joel, Lautz, Mettgenberg, and Rothenberger. The
order confirming the life sentence upon the defendant Schlegelberger is
reproduced below.
B. Order of the Military Governor confirming the life
sentence imposed upon the defendant Schlegelberger
HEADQUARTERS, EUROPEAN COMMAND
Office of the Commander-in-Chief
APO 742
Berlin, Germany
18 January 1949
Military Tribunal III
Case No. 3
In the Case of The
United States of America
_vs._
Josef Altstoetter, et al.
_Order with respect to Sentence of Franz Schlegelberger_
In the case of the United States of America against Josef Altstoetter,
et al., tried by United States Military Tribunal III, Case No. 3,
Nuremberg, Germany, the defendant Franz Schlegelberger, on 4 December
1947, was sentenced by the Tribunal to life imprisonment. A petition
to modify the sentence, filed on behalf of the defendant by Dr. Egon
Kubuschok, his defense counsel, has been referred to me pursuant to
the provisions of Military Government Ordinance No. 7. I have duly
considered the petition and the record of the trial and in accordance
with article XVII of said Ordinance, it is hereby ordered that:
_a._ The sentence imposed by Military Tribunal III on Franz
Schlegelberger be, and hereby is, in all respects confirmed.
_b._ The defendant be confined in War Criminal Prison No. 1,
Landsberg, Bavaria, Germany.
[Signed] LUCIUS D. CLAY
LUCIUS D. CLAY
General, U. S. Army
Military Governor and
Commander-in-Chief European Command
X. ORDER OF THE UNITED STATES SUPREME COURT
DENYING WRITS OF HABEAS CORPUS
SUPREME COURT OF THE UNITED STATES
October Term, 1948
EXTRACT
* * * * * * *
No. 463 Misc. In the Matter of Wilhelm von Ammon.
No. 464 Misc. In the Matter of Dr. Guenther Joel.
No. 465 Misc. In the Matter of Herbert Klemm.
No. 466 Misc. In the Matter of Ernst Lautz.
No. 467 Misc. In the Matter of Dr. Wolfgang Mettgenberg.
No. 468 Misc. In the Matter of Rudolf Oeschey.
No. 469 Misc. In the Matter of Dr. Oswald Rothaug.
No. 470 Misc. In the Matter of Kurt Rothenberger.
No. 471 Misc. In the Matter of Dr. Franz. Schlegelberger.
* * * * * * *
ORDER
“Treating the application in each of these cases as a motion
for leave to file a petition for an original writ of habeas
corpus, leave to file is denied. The Chief Justice, Mr. Justice
Reed, Mr. Justice Frankfurter, and Mr. Justice Burton are of the
opinion that there is want of jurisdiction. U. S. Constitution,
article III, section 2, clause 2; see _Ex parte Betz_ and
companion cases, all 329 U.S. 672 (1946); Milch _v._ United
States, 332 U.S. 789 (1947); Brandt _v._ United States,
333 U.S. 836 (1948); _In re_ Eichel, 333 U.S. 865 (1948);
Everett _v._ Truman, 334 U.S. 824 (1948). Mr. Justice
Black, Mr. Justice Douglas, Mr. Justice Murphy, and Mr. Justice
Rutledge are of the opinion that argument should be heard on the
motions for leave to file the petitions in order to settle what
remedy, if any, the petitioners have. Mr. Justice Jackson took
no part in the consideration or decision of these applications.”
2 May 1949
APPENDIX
Titles of Judges and Prosecutors at Regular German Courts
1. Reichsgericht (Reich Supreme Court)
_Judges_
Reichsgerichtspraesident
(Presiding)
Senatspraesident
(Head of Division)
Reichsgerichtsrat
_Prosecutors_
Oberreichsanwalt (Att. Gen.)
Reichsanwalt (Asst. Att. Gen.)
Oberstaatsanwalt }
Staatsanwalt } (Assts.)
2. Oberlandesgericht (District Court of Appeal)
_Judges_
Oberlandesgerichtpraesident[684]
(Presiding)
Senatspraesident
(Head of Division)
Oberlandesgerichtsrat
_Prosecutors_
Generalstaatsanwalt
Oberstaatsanwalt }
Staatsanwalt } (Assts.)
3. Landgericht (District Court)
_Judges_
Landgerichtspraesident
(Presiding)
Landgerichtsdirektor
(Head of Division)
Landgerichtsrat
_Prosecutors_
Oberstaatsanwalt (Chief)
Erster Staatsanwalt }
Staatsanwalt } (Assts.)
4. Amtsgericht (Local Court)
_Judges_
Amtsgerichtsdirektor
(Presiding)
Amtsgerichtsrat
_Prosecutors_
Amtsanwalt
German Civil Service Ranks[685]
I. _Lower Level_[686]
II. _Intermediate Level_
1. Assistent[687]
2. Sekretaer[687]
3. Obersekretaer[687]
III. _Upper Level_
1. Inspektor[687]
2. Oberinspektor[687]
3. Amtmann[687]
4. Amtsrat
IV. _Higher Level_
1. Regierungsrat
2. Oberregierungsrat
3. Ministerialrat
4. Ministerialdirigent
5. Ministerialdirektor
6. Staatssekretaer
Table of Comparative Ranks
U.S. Army German Army SS SA
2d Lieutenant Leutnant Untersturmfuehrer Sturmfuehrer
1st Lieutenant Oberleutnant Obersturmfuehrer Obersturmfuehrer
Captain Hauptmann Hauptsturmfuehrer Hauptsturmfuehrer
Major Major Sturmbannfuehrer Sturmbannfuehrer
Lieutenant Colonel Oberstleutnant Obersturmbannfuehrer Obersturmbannfuehrer
Colonel Oberst Standartenfuehrer Standartenfuehrer
Oberfuehrer[688] Oberfuehrer[688]
Brigadier General Generalmajor Brigadefuehrer Brigadefuehrer
Major General Generalleutnant Gruppenfuehrer Gruppenfuehrer
Lieutenant General General der Infanterie, Obergruppenfuehrer Obergruppenfuehrer
der Artillerie, etc.
General Generaloberst Oberstgruppenfuehrer
General of the Army Generalfeldmarschall Reichsfuehrer Stabschef
Glossary of Terms and Abbreviations
TERMS
Akademie fuer Deutsches Recht Academy of German Law; organized as a
corporation of public law to build up a
new system of German law in all
branches, supervised by Reich Ministry
of Justice.
Amtsanwalt Public Prosecutor at local court.
Amtsgericht Local court.[689]
Amtsgerichtsdirektor Presiding Judge of local court.
Amtsgerichtsrat Judge of local court.
Arbeitshaus Workhouse.
Armenrecht Right granted by court to a litigant to file
papers without payment of court fees,
equivalent in United States to filing of
papers _in forma pauperis_.
Assessor Judge on probational appointment.[690]
Ausserordentlicher Einspruch “Extraordinary Objection;” extraordinary
remedy introduced by Act of 16 September
1939, enabling the Attorney general
of Germany (Oberreichsanwalt) to secure
the review of final criminal judgments.
Beisitzer Associate judge.
Blitzvollstreckung Expedited execution of a death sentence.
“Das Schwarze Korps” “The Black Corps,” official SS newspaper.
“Deutsche Justiz” “German Justice,” a legal publication;
semi-official; mouthpiece of Reich Ministry
of Justice.
Entmannung Castration.
Entrechtung Deprivation of civil rights.
Erbgesundheitsgericht Hereditary Health Court.
Erbhofrecht Hereditary Farm Law.
Ermaechtigungsgesetz Enabling Act; law dated 24 March 1933,
giving the Reich cabinet legislative
power.
Erster Staatsanwalt Public prosecutor at district court.
Gau Regional division (usually of size of a
province) of Nazi Party.
Gauleiter Leader of a Gau.
Generalstaatsanwalt Public prosecutor at district court of appeals;
supervises all public prosecutors
at subordinate courts within his jurisdiction.
(Also translated as “attorney
general,” “general public prosecutor,”
and “public prosecutor general.”)
Hauptverhandlung Trial.
Heimtueckegesetz Law on Insidious Acts (also translated as
“Law against Malicious Acts”).
Justiz Administration of justice; judiciary; term
usually denotes the judicial system including
Ministry of Justice, the courts,
and members of the judiciary.
Kammergericht District court of appeals in Berlin.
Kanzelmissbrauch Misuse of pulpit; term denotes imprudent
discussion of state affairs by clergymen.
Kreisleiter Leader of a district of the Nazi Party.
Kriegstaeter Perpetrator of a crime during wartime.
Land (Laender) State (s).
Landgericht District court.
Landgerichtsdirektor Presiding judge of a division of a district
court.
Landgerichtspraesident Presiding judge of a district court.
Landgerichtsrat Judge of district court.
Landrat (Landraete) Highest administrative official (s) of a
county.
Lynchjustiz Lynch justice: lynch law; act or practice
by private persons of inflicting punishment
for crimes or offenses, without due
process of law.
Ministerialblatt Ministerial Gazette; official publication of
a Ministry containing administrative
ordinances, regulations, etc.
Mischling Person of mixed race.
Mitarbeiter Co-worker immediately subordinated to a
Referent.
Nationalsozialistischer National Socialist Legal Workers’ Association;
Rechtswahrerbund[691] (also translated National Socialist
Jurists’ League, and National Socialist
Lawyers’ League) organization included
members of all professions and workgroups
connected with legal work; it contained
eight divisions (Fachgruppen):
(1) Richter und Staatsanwaelte (Judges
and Public Prosecutors); (2) Rechtsanwaelte
(lawyers); (3) Notare (notaries
public); (4) Rechtspfleger (court registrars
with authority of issuing court
orders); (5) Hochschullehrer, jur. (professors
of law); (6) Rechtswahrer der
Verwaltung (counsels in administrative
agencies); (7) Wirtschaftsrechtswahrer
(auditors, political economists, etc.);
(8) Junge Rechtswahrer (junior legal
workers).
Nichtigkeitsbeschwerde Nullity plea.
Notzucht Rape.
Obererbgesundheitsgericht Higher (Appellate) Hereditary Health
Court.
Oberlandesgericht District court of appeals.
Oberlandesgerichtspraesident Presiding judge of a district court of appeals;
administrative head of all courts
in his district.
Oberpraesident Chief of administration of a Prussian province,
corresponds to position of Reich
governor in other German states.
Oberreichsanwalt Attorney general of the Reich (also translated
as chief Reich prosecutor); there
were two attorneys general, one at the
People’s Court, the other at the Reich
Supreme Court.
Oberstaatsanwalt Public prosecutor at district court.
Oberster Gerichtsherr Holder of supreme judicial power (Hitler).
Ortsgruppenleiter Leader of a subdistrict of the Nazi Party.
Parteikanzlei Nazi Party Chancellery.
Polenstrafrechtsverordnung Criminal Code for Poles.
Rassenschande Race defilement (also translated as race
pollution).
Referat (e) Office (s) or section (s) concerned with a
specialized subject matter.
Referendar Young jurist who has passed a preliminary
state legal examination and works
as a law clerk in a court.
Referent Supervisor of several professional officials;
section chief; expert in a particular field.
Reichsanwalt (-waelte) Assistant attorney (s) general of the Reich
(also translated as Reich prosecutor).
Reichsgericht Reich Supreme Court.
Reichsgesetzblatt Reich Law Gazette.
Reichsjustizministerium Reich Ministry of Justice.
Reichsstatthalter Reich Governor.
Reichsstrafprozessordnung Code of Criminal Procedure.
Regierungspraesident Highest Administrative official of a state
district. (Each German state is subdivided
into several administrative districts
[Regierungsbezirke].)
Richterbrief (e) Judge’s Letter (s); confidential circular
letter to German judges and public
prosecutors issued by the Reich Ministry
of Justice.
Senat Division of the Reich Supreme Court, or a
district court of appeals, or the People’s
Court, or of a Special Court.
Sondergericht Special Court.
Staatsanwalt Public prosecutor at district court.
Staatsanwaltschaft Office of the public prosecutor.
Stahlhelm German veterans organization of World
War I, incorporated into the SA in 1933.
Standgericht Civilian court martial.
Volksgerichtshof People’s Court.
Volksschaedlingsverordnung Law against public enemies; (also translated
as “law against public parasites.”)
Wehrkraftzersetzung Undermining of military efficiency.[692]
Wehrmacht Armed Forces.
Zuchthaus Penitentiary.
ABBREVIATIONS
BNSDJ Bund Nationalsozialistischer Association for National Socialist
Deutscher Juristen Jurists; became part of NSRB
in 1936.
DBG Deutsches Beamtengesetz German Civil Service Law.
Gestapo Geheime Staatspolizei Secret State Police.
NN Nacht- und Nebel Erlass Night and Fog Decree.
NSDAP Nationalsozialistische Deutsche National Socialist Workers’ Party
Arbeiterpartei (Nazi Party).
NSRB Nationalsozialistischer National Socialist Legal Workers’
Rechtswahrerbund Association.
OKW Oberkommando der Wehrmacht German Armed Forces High Command.
RGBl Reichsgesetzblatt Reich Law Gazette.
RJM Reichsjustizministerium Reich Ministry of Justice.
RK Reichskanzlei Reich Chancellery.
RKabR Reichskabinettsrat Reich Cabinet Counselor (title).
RSHA Reichssicherheitshauptamt Reich Security Main Office of the
SS.
SA Sturmabteilung “Storm Troop Force” of the Nazi
Party.
SD Sicherheitsdienst Security and Intelligence Service
of the SS.
SS Schutzstaffel Elite Guard and “Protective
Force” of the Nazi Party.
UStS Unterstaatssekretaer Assistant Under Secretary.
VGH Volksgerichtshof People’s Court.
List of Witnesses in Case 3
_Note._--All witnesses in this case appeared before
the Tribunal, except for 13 witnesses whose testimony was
taken by commissioners of the Tribunal concerning affidavits
they had signed and which had been offered in evidence by
the prosecution. In the table below, prosecution witnesses
are designated by the letter P and defense witnesses by the
letter D. If the witness was a prosecution affiant called for
cross-examination by the defense, the letter designation PA
(prosecution affiant) is used. If the witness was a defense
affiant called for cross-examination by the prosecution, the
letter designation DA (defense affiant) is used. As the first
column below indicates, the same witness was sometimes called
by both the prosecution and the defense at different stages of
the trial. The names not preceded by any designation represent
defendants.
---+-----------------------------+-------------------------+-------------
| | | Pages
| Name | Date of Testimony |(mimeographed
| | | transcript)
---+-----------------------------+-------------------------+-------------
D |ALTMEYER, Hans Josef |15, 16 Jul 47 |5244–5308
|ALTSTOETTER, Josef |15, 16 Sep 47 |8841–8962
|AMMON, Dr. Wilhelm von |1, 4 Aug 47 |6377–6473
P |ANCKER, Edinger |29 Apr 47 |2743–2761
D |AZESDORFER, Dr. Hermann |9 Sep 47 |8437–8469
PA |BAEUMLER, Dr. Josef |3 Jun 47 |3818–3833
|BARNICKEL, Paul |26, 27, 28 Aug 47 |7649–7752;
| | | 7780–7901
PA |BAUR, Armin |23 May 47 |3598–3606
D |BECHER, Dr. Werner H. |17, 25 Sep 47 |8969–8998;
| | | 9514–9517
P |BEHL, Dr. Ferdinand C. W. |18, 19, 20, 21 Mar 47 |562–826
D |BLECKSCHMIDT, Annemarie |29 Jul 47 |6112–6114
D |BODEN, Helmuth |31 Jul 47 |6208–6235
PA |BREM, Walter |22 May 47 |3517–3564
PA |BUCHHOLZ, Peter |27, 28 May 47 |3718–3735
P |BUCHTHAL, Arnold |21 Aug 47 |7471–7474
P |BUHL, Walter |18 Sep 47 |9075–9107
|CUHORST, Hermann |29 Aug; 2, 3, Sep 47 |7958–8175
D |DECHANT, George |10 Sep 47 |8549–8558
D |DENZLER, Leonhard |15 Aug 47 |7095–7133
P |DIESSEM, Dr. Julius |17, 18 Apr 47 |2312–2346
P |DOEBIG, Dr. Friedrich |9, 10 Apr 47 |1750–1872
P |DORFMUELLER, Dr. Martin |12 May 47 |3154–3220
P |DRESCHER, Dr. Erich |22 Jul 47 |5646–5671
P |DUERRBECK, Dr. Otto |29 Jul 47 |6095–6096
P/D|EGGENSPERGER, Eugen |9 May; 16 Jul 47 |3083–3096;
| | | 5309–5323
D |EHRHARDT, Dr. Otto |1 Aug 47 |6363–6376
PA |EICHINGER, Josef |22 May 47 |3471–3487
D |EIFFE, Peter E. |22, 23 Jul 47 |5671–5692
P |EINSTEIN, Henry |1 May 47 |2970–2976
P |EITNER, Lorenz |25 Mar; 22 Apr 47 |943–949;
| | | 2521–2525
P |ELKAR, Friedrich |30 Apr; 1 May 47 |2884–2938
PA |ENGERT, Georg |27 May 47 |3694–3705
D |ERNST, Johanna |30 Jul 47 |6169–6173
PA |ESCHER, Dr. Ernst |23 May 47 |3628–3641
P |FERBER, Dr. Karl |31 Mar; 1, 3, 8 Apr 47 |1312–1315;
| | | 1319–1466;
| | | 1576–1630;
| | | 1665–1746
P |FILBIG, Karl Kaspar |19 May 47 |3351–3363
DA |FOETSCH, Maria |23 Sep 47 |9363–9367
PA |FRANKE, Dr. Horst Guenther |22 Sep 47 |9265–9280
D |FRITZSCHE, Hans |15 Jul 47 |5200–5242
PA |FROBOESE, Katharina |27 May 47 |3705–3718
P |GERSTAECKER, Dr. Wilhelm |29 Jul 47 |6064–6084
P |GOERINGER, Dr. Hugo |28 Mar 47 |1263–1280
D/P|GRAMM, Dr. Hans |3 Jul; 17 Sep 47 |4700–4764;
| | | 9070–9073
PA |GROBEN, Hans |23 May 47 |3614–3627
PA |GROS, Dr. Franz |30 Apr 47 |2826–2882
PA |GRUEB, Dr. Josef |22 May 47 |3502–3517
PA |GRUENWALD, Bruno |3 Jun 47 |3879–3910
P |HACH, Josef |24 Apr 47 |2643–2651
D |HAGEMANN, Hans |22 Sep 47 |9302–9315
D |HARTMANN, Hans |17 Sep 47 |8999–9068
P |HAVEMANN, Prof. Robert |10, 11 Apr 47 |1873–1925
P |HECKER, Robert |18 Apr; 9, 12 May; |2363–2386;
| | 7 Jul 47 | 3047–3083;
| | | 3111–3114;
| | | 4823–4870
D |HEGELE, Max |8 Sep 47 |8366–8389
P |HELM, Arthur |22 Sep 47 |9335–9337
P |HERGET, Franz |22 Sep 47 |9337–9343
P |HLAVAC, Josef |30 Apr 47 |2802–2825
P |HODGES, Thomas K. |19 May 47 |3363–3371
D |HOFFMANN, Dr. Heinz |15 Sep 47 |8816–8825
PA |HOFMANN, Kurt |27 May 47 |3650–3653
PA |HOFFMANN, Wilhelm |4 Jun 47 |3940–3947
PA |HUEMMER, Gottfried |4 Jun 47 |3976–3992
D |HUPPERTZ, Karin |30 Jul 47 |6141–6169
D |JAHRREISS, Prof. Hermann |25, 26 Jun 47 |4253–4364
|JOEL, Guenther |4, 5, 6 Aug 4 |6474–6611;
| | | 6617–6643
PA |KASSING, Bernhard |4 Jun 47 |3997–4000
PA |KERN, Dr. Hans |28 May; 4 June 47 |3806–3811;
|KLEMM, Herbert |3, 7, 8, 10, 11, 14, 15, |3934–3940
| | Jul; 23 Sep 47 | 4784–4822;
| | | 4891–5024;
| | | 5027–5090;
| | | 5094–5199;
| | | 9383–9396
P |KLEES, Rudolf |12 May 47 |3115–3140
D |KLETT, Dr. Arnulf |8 Sep 47 |8432–8435
PA |KROHER, Dr. Hermann |22 May 47 |3488–3496
D |KUESTNER, Dr. Otto |3, 4 Sep 47 |8175–8234
PA |KUNZ, Dr. Gustav |23 May 47 |3577–3598
D |LAMMERS, Dr. Hans Heinrich |22 Jul 47 |5582–5620
|LAUTZ, Dr. Ernst |23, 24, 25, 28 Jul 47 |5761–5775;
| | | 5781–6054
P |LEHMANN, Rudolf |23, 24 Apr 47 |2586–2643
D |LENZ, Dr. Otto |6 Aug 47 |6643–6652
D |LINK, Dr. Heinrich |29 Jul 47 |6104–6111
PA |LIPPS, Herbert |28 May 47 |3735–3755
P |LODUCHOWSKI, Dr. Hans Willi |4 Sep 47 |8254–8282
D |LUDWIG, Fritz |22 Sep 47 |9329–9332
P/D |MARKL, Hermann |27 May; 15 Sep 47 |3653–3662;
| | | 3675–3683;
| | | 3687–3692;
| | | 8805–8815
P |MARTIN, Capt. Roy A. |20, 26 Aug 47 |7399–7402;
| | | 7637–7639
D |MARX, Dr. Hanns |29, 30 Jul 47 |6114–6140
PA |MAYER, Dr. Karl |23 May 47 |3565–3577
PA |MAYER, Dr. Josef |5 Jun 47 |4033–4039
P |MCLENDON, Lt. Col. John |13 May 47 |3230–3234
D |MEISSNER, Dr. Otto |2 Jul 47 |4606–4642
|METTGENBERG, Dr. Wolfgang |31 Jul; 1 Aug 47 |6235–6271;
| | | 6274–6362
PA/D|MIETHSAM, Dr. Wilhelm |3, 4 Jun; 7, 8 Jul 47 |3911–3932;
| | | 4870–4876;
| | | 4880–4891
D |MITZSCHKE, Dr. Gustav |22 Sep 47 |9316–9328
PA |MUELLER, Dr. Hermann |28 May 47 |3755–3781
P |MUENCH, Anni |19 May 47 |3406–3419
P |OEHLCKERS, Dr. Wilhelm |18 Sep 47 |9108–9133
|OESCHEY, Rudolf |9–12, 15 Sep |8510–8548;
| | | 8559–8805
D |OHLER, Paul |15 Aug 47 |7149–7152
PA |OSTERMEIER, Robert |22 May 47 |3497–3499
PA |PAULUS, Adolf |28 May 47 |3781–3806
PA |PFAFF, Dr. Theodor |27 May 47 |3642–3650
PA |PREY, Josef |4 Jun 47 |3960–3975;
| | | 3992–3993
D |PRIESS, Dr. Friedrich |25 Sep 47 |9494–9514
PA |RAUH, Robert |22 May 47 |3499–3502
P |RIMELIN, Dr. Renatus |14 Apr 47 |2049–2092;
| | | 2137–2142
P |RICE, Lowell O., Captain |29 Jul 47 |6060–6064
PA |ROEDER, Dr. Manfred |4, 5 Jun 47 |3993–3997;
| | | 4000–4033
P |ROEMER, Walter |24 Apr 47 |2652–2672
D |ROSENAU, Dr. Wilhelm |1 Jul 47 |4568–4587
P |ROSKA, Charles J., Captain |26, 31 Mar 47 |1023–1024;
| | | 1316–1318
|ROTHAUG, Oswald |11–14, 18–22, 25, 26 |6754–6917;
| | Aug 47 | 6928–7016;
| | | 7179–7395;
| | | 7406–7470;
| | | 7474–7636;
| | | 7640–7648
|ROTHENBERGER, Dr. Curt |16–18, 21, 22 Jul; |5324–5381;
| | 24 Sep 47 | 5400–5484;
| | | 5495–5581;
| | | 9438–9478;
| | | 9512–9515
P |ROTTNER, Wolfgang |23, 24 Sep 47 |9403–9411;
| | | 9413–9437
P |SCHAEFER, Robert, Major |29 Jul 47 |6057–6060
P |SCHAEFER, Mark |15 Apr 47 |2125–2142
PA |SCHIRMER, Ludwig |4 Jun 47 |3947–3959
|SCHLEGELBERGER, Franz |26, 27, 30 June 47; |4367–4568
| | 1 Jul 47 |
P |SCHOSSER, Luitpold |9 May 47 |3021–3046
P |SCHMITT, Horst |14 May 47 |3321–3335
D |SCHOECK, Dr. Willi |4 Sep 47 |8235–8253
P/D |SCHROEDER, Dr. Karl |23 May; 14, 15 Aug 47 |3607–3613;
| | | 7017–7095
D |SCHULZ, Hans Heinrich |25 Sep 47 |9530–9552
P |SCHWARZ, Berthold |11, 14 Apr 47 |1925–2048
P |SCHWARZ, Dr. Eberhard |17 Apr 47 |2258–2312
P |SEILER, Irene |26 Mar 47 |1025–1057
P |SKOK, Dr. Herbert |19 Sep 47 |9178–9204
P |SOLF, Mrs. Hanna |15, 16 Apr 47 |2143–2208
D |STEINAECKER, Dr. Walter |22 Jul 47 |5621–5646
| Freiherr von | |
P |STERN, Dr. Peter |29 Jul; 20 Aug 47 |6085–6094;
| | | 7396–7398
D |STUBER, Dr. Max |8 Sep 47 |8390–8424
PA/D|SUCHOMEL, Dr. Hugo |3 Jun; 27 Aug 47 |3833–3841;
| | | 3870–3879;
| | | 7753–7779
P |TIMMERMAN, Hans |19 Sep 47 |9204–9214
D |WALLENTIN, Fritz |19 Sep 47 |9215–9224
P |WAHLER, Isaac E. |19 Sep 47 |9246–9262
P |WALDOW, Erich Christian |18, 19 Sep 47 |9153–9164
P |WEIN, Benedict |28 Apr 47 |2675–2692;
| | | 2716–2729
P |WEISS, Wilhelm |19 Sep 47 |9227–9233
P |WENTZENSEN, Edmund |18, 19 Sep 47 |9135–9153;
| | | 9166–9177
PA |WERGIN, Dr. Kurt |3 June 47 |3847–3868
P |WIEBER, Mrs. Ruth |29, 30 Jul 47 |6097–6103;
| | | 6174–6175
D |WILLERS, Hans |19 Sep 47 |9233–9245
P |WISKOTT, Wolfgang |4 Sep 47 |8282–8288
PA |WIZIGMANN, Eugen |27 May 47 |3670–3674
D |ZIMMERMANN, Hans |15 Aug 47 |7135–7149
INDEX OF DOCUMENTS AND TESTIMONIES
IN CASE 3
(This is not a complete index of the evidence submitted in Case 3. Only
those documents and testimonies which are reproduced herein are listed.)
Document No. Exhibit No. Description Page
NG-059 Pros. Ex. 38 File note concerning a conference of 503
18 September 1942 at Himmler’s
field headquarters between Himmler,
Reich Minister of Justice Thierack,
and defendant Rothenberger.
NG-071 Pros. Ex. 98 Secret report of the Chief of the Security 454
Police and SD, 3 September
1942, concerning “the control of
penal jurisdiction” and the reactions
of judges thereto.
NG-075 Pros. Ex. 27 Correspondence between the Reich 467
Chancellery and Hitler’s adjutant,
May and June 1942, mentioning
that Hitler had considered “noteworthy”
the Rothenberger memorandum
on judicial reform.
NG-077 Pros. Ex. 306 Letter from Under Secretary Freisler 782
to General Lehmann, 16 December
1941, transmitting a draft of a proposed
implementation order to the
“Night and Fog” Decree, together
with an interoffice note of 25 December
1941.
NG-102 Pros. Ex. 75 Four communications, May-June 438
1942, concerning the authority for
the confirmation of sentences.
NG-126 Pros. Ex. 356 Letter from defendant Schlegelberger 666
to Lammers, 26 May 1942, transmitting
a copy of Schlegelberger’s
decree delegating the right to
pardon Poles and Jews to Reich
governors and provincial presidents.
NG-128 Pros. Ex. 354 Letter from the Provincial President 665
of Upper Silesia to Lammers, 26
January 1942, requesting the power
of amnesty for Poles and Jews sentenced
to death.
NG-129 Pros. Ex. 355 Letter from defendant Schlegelberger 665
and Greiser, Reich Governor of the
Warthegau (Poland) to Lammers,
15 December 1941, stating that
Greiser’s authority concerning the
execution of death sentences and
pardoning of Poles and Jews is no
longer restricted.
NG-130 Pros. Ex. 200 File note of the Reich Chancellery, 620
22 April 1941, concerning Schlegelberger’s
draft of a proposed decree
on penal law for Poles and Jews
in the Incorporated Eastern Territories.
NG-136 Pros. Ex. 345 Memorandums of the Reich Chancellery, 622
27 May 1941, concerning
criminal law to be instituted in the
Incorporated Eastern Territories,
including copies of letters to defendant
Schlegelberger, Bormann,
and Himmler.
NG-144 Pros. Ex. 199 Letter from defendant Schlegelberger 611
to Lammers, 17 April 1941, concerning
“penal laws for Poles and
Jews in the Incorporated Eastern
Territories.”
NG-149 Pros. Ex. 110 Various memorandums from the files 569
of the High Command of the
Armed Forces, 6 June-5 July 1944,
concerning the treatment of “Terror
Fliers.”
NG-151 Pros. Ex. 204 Selections from correspondence preceding 686
issuance of thirteenth regulation
under Reich Citizenship
Law, 3 August 1942–21 April 1943,
involving limitations upon legal
rights of Jews, their punishment by
police, and related matters.
NG-152 Pros. Ex. 63 Letters from defendant Schlegelberger 417
to Hitler and Lammers, March
1941 and March 1942, concerning
judicial sentences displeasing Hitler
and proposing participation in
civil proceedings by public prosecutors.
NG-154 Pros. Ex. 152 Opinion and sentence of the Nuernberg 653
Special Court in the Katzenberger
case, 13 March 1942, in
which defendant Rothaug was presiding
judge.
NG-157 Pros. Ex. 103 Letter from the Reich Minister of 241
Justice to the president of the People’s
Court, 18 October 1944, commenting
upon its functions and the
selection of presiding judges “in
particularly important political
cases.”
NG-160 Pros. Ex. 124 Letter from Freisler, president of the 236
People’s Court, to the Reich Minister
of Justice, 17 January 1944,
transmitting summary of activity
of the People’s Court from 1 January
to 31 December 1943.
NG-186 Pros. Ex. 340 Memorandum from Freisler, president 238
of the People’s Court, 1 April
1944, concerning assignment of
various types of cases to the several
senates of the People’s Court.
NG-190 Pros. Ex. 284 Various memorandums and lists of 331
Reich Ministry of Justice, 28 September
1939 to 7 March 1941, concerning
executions without trial or
executions after trial under various
circumstances.
NG-205 Pros. Ex. 328 Secret directive of the Reich Ministry 798
of Justice, 21 January 1944, ordering
transfer to Gestapo of “Night
and Fog” prisoners who were acquitted,
against whom proceedings
were quashed, or who had served
their sentences.
NG-219 Pros. Ex. 42 Report from the general public prosecutor 507
in Jena to the Reich Ministry
of Justice, 30 September 1943, concerning
cooperation of justice authorities
with the SD, and interoffice
memorandums pertaining
thereto.
NG-228 Pros. Ex. 312 Memorandums of defendant von Ammon 788
to defendant Rothenberger, 9
and 26 September 1942, concerning
pending “Night and Fog” cases and
the handling of these prisoners.
NG-230 Pros. Ex. 331 Letter from Armed Forces High 801
Command to the Foreign Office,
copy to defendant von Ammon, 4
April 1944, concerning two notes
of M. De Brinon, Vichy Government
Ambassador, on “Night and
Fog” cases.
NG-232 Pros. Ex. 308 Circular Decree of the Reich Ministry 784
of Justice, signed by Under Secretary
Freisler, 6 February 1942,
assigning particular Special Courts
to handle “Night and Fog” cases.
NG-253 Pros. Ex. 317 Extracts from official correspondence 791
arising out of the question of providing
defense counsel in “Night
and Fog” trials, 4 January-19 February
1943.
NG-255 Pros. Ex. 314 Letter from Ministry of Justice, initialed 789
by defendants Mettgenberg
and von Ammon, to various judges
and public prosecutors, 21 December
1942, concerning objections to
elective defense counsel in “Night
and Fog” trials.
NG-260 Pros. Ex. 87 Extracts from Lawyers’ Letter No. 1 554
signed by Reich Minister of Justice
Thierack, 1 October 1944.
NG-262 Pros. Ex. 333 File note initialed by defendant von 803
Ammon on 10 May 1944, concerning
the status of “Night and Fog”
cases as of 30 April 1944.
NG-269 Pros. Ex. 319 Secret instructions of Reich Ministry 794
of Justice to prosecutors and
judges, initialed by defendants
Altstoetter, Mettgenberg and von
Ammon, 6 March 1943, concerning
measures necessary to maintain
secrecy of “Night and Fog” procedures.
NG-270 Pros. Ex. 155 Extracts from an article in 650
Streicher’s “Der Stuermer,” 2
April 1942, concerning the Katzenberger
trial and judgment.
NG-280 Pros. Ex. 70 Correspondence between the Reich 421
Chancellery and defendant Schlegelberger,
March and April 1941,
after Hitler had expressed displeasure
at a sentence granting extenuating
circumstances to a Pole.
NG-281 Pros. Ex. 323 File note of defendant von Ammon, 797
7 October 1943, concerning defendant
Lautz’ question as to giving
defendants translations of the indictments
against them in “Night
and Fog” cases.
NG-287 Pros. Ex. 88 Correspondence between Lammers, 429
Schaub, and defendant Schlegelberger,
October 1941, concerning
transfer of Markus Luftgas to the
Gestapo for execution.
NG-298 Pros. Ex. 81 The first issue of the Judges’ Letters, 525
1 October 1942.
NG-315 Pros. Ex. 82 Extracts from issue No. 3 of the 535
Judges’ Letters, 1 December 1942,
summarizing two cases and giving
in each case the opinion of the
Reich Minister of Justice.
NG-323 Pros. Ex. 32 Letters from the Reich Ministry of 358
Justice to public prosecutors, 10
March 1937, concerning collaboration
between public prosecutors and
the Gestapo and enclosing a circular
decree of Himmler on the same
subject.
NG-326 Pros. Ex. 456 Directive of 12 June 1937 from Heydrich, 317
Chief of the Security Police
to Police Offices, concerning protective
custody for Jewish race
defilers.
NG-327 Pros. Ex. 359 Letter from Lammers to Thierack, 510
23 October 1942, stating that the
opinion of the Gauleiter has to accompany
clemency cases submitted
to Hitler.
NG-331 Pros. Ex. 343 Draft of a proposed ordinance concerning 615
penal law for Poles and
Jews in the Incorporated Eastern
Territories, prepared by defendant
Schlegelberger and submitted to
the Chief of the Reich Chancellery
on 17 April 1941.
NG-337 Pros. Ex. 186 The Lopata case, April-December 852
1942. Extracts from the official files
including: verdict of local court
sentencing Lopata, a Pole, to 2
years’ imprisonment; decision of
the Reich Supreme Court granting
nullity plea filed by Chief Reich
prosecutor; verdict of the Nuernberg
Special Court (defendant
Rothaug presiding) sentencing Lopata
to death; Thierack’s refusal to
pardon; Lopata’s last petition for
clemency and the record of execution
of the death sentence.
NG-340 Pros. Ex. 257 Letter from Bouhelr, chief of the 329
Fuehrer’s Nazi Party Chancellery,
to Lammers, 26 July 1939, concerning
Hitler’s decision to place persons
in security detention under
Himmler for work in concentration
camps.
NG-346 Pros. Ex. 101 Circular of the Reich Ministry of 247
Justice to all presidents of the
courts of appeal, 11 May 1936, announcing
courses for judges dealing
with hereditary disease cases.
NG-351 Pros. Ex. 132 Secret judgment of first senate of 702
People’s Court concerning two
Poles, 21 May 1943, and directive
of Ministry of Justice to defendant
Lautz concerning the manner of
carrying out the execution of one
of the defendants.
NG-364 Pros. Ex. 108 Secret circular from Martin Bormann 577
to Nazi Party leaders, 30 May
1944, concerning “People’s justice
against Anglo-American murderers.”
NG-366 Pros. Ex. 256 Minutes of defendant Klemm on 323
conferences of Reich Minister of
Justice with attorneys general and
presidents of courts of appeal, 23
and 24 January 1939, concerning
protective custody.
NG-369 Pros. Ex. 258 Letter from People’s Court president, 340
Thierack, to Guertner, 14 August
1940, recommending transfer to
concentration camps without trial
of persons falling within a “minor
guilt” category of high treason.
NG-381 Pros. Ex. 159 The Beck case, 5 April-21 September 873
1943. Extracts from the official files
including report of local Nazi official,
5 April 1943; report to the
Gestapo in Vienna, 4 June 1943;
letter from defendant Barnickel to
the president of the People’s Court,
30 July 1943, enclosing indictment
signed by Barnickel; and judgment
of the People’s Court after trial of
20 September 1943.
NG-387 Pros. Ex. 400 Report from defendant Rothenberger 446
to defendant Schlegelberger, 4 July
1941, concerning criticism of judges
by the SS periodical, the draft law
on “asocials,” and the lack of
suitable candidates for judgeships.
NG-389 Pros. Ex. 76 Report from defendant Rothenberger 483
to defendant Schlegelberger, 11
May 1942, noting Rothenberger’s
intention to intensify “the internal
direction and steering of the administration
of justice,” and enclosing
copies of Rothenberger’s instructions
to judges in his district.
NG-395 Pros. Ex. 74 Report from the president of the 448
court of appeal in Hamm, 7 July
1942, concerning the alarm among
judges caused by Hitler’s Reichstag
speech of 26 April 1942, and certain
activities of the Gestapo and
the Nazi Party affecting legal matters.
NG-412 Pros. Ex. 77 Request by Under Secretary Freisler 863
for a “Draft on the retroactive
effect of the more severe National
Socialist regulations” for treason,
18 May 1942, together with an interoffice
memorandum thereon, and
a circular letter from defendant
Schlegelberger to various Reich
authorities attaching a draft of a
proposed law and requesting approval.
NG-417 Pros. Ex. 23 Summary by Dr. Crohne of the Reich 452
Ministry of Justice concerning
Goebbel’s speech to the members of
the People’s Court, 22 July 1942.
NG-445 Pros. Ex. 73 Letter from the president of the Berlin 433
court of appeal to defendant
Schlegelberger, 3 January 1942,
commenting upon “influence exerted
upon the judges.”
NG-457 Pros. Ex. 201 Opinion and sentence of the Nuernberg 705
Special Court, with defendant
Oeschey as presiding judge, 29
October 1943, by which two foreign
workers were condemned to death.
NG-478 Pros. Ex. 61 Letter from Thierack, Reich Minister 227
of Justice, to presidents of courts
of appeal, 5 July 1943, discussing
development and effectiveness of
Special Courts and proposing limitations
on their jurisdiction.
NG-498 Pros. Ex. 93 Letter from Thierack to presidents of 539
various district courts of appeal,
17 November 1942, concerning
manner of acquainting judges and
prosecutors in Alsace, Lorraine,
and Luxembourg with the Judges’
Letters.
NG-500 Pros. Ex. 90 Circular letter from Thierack to 523
judges, 7 September 1942, explaining
the establishment and function
of the Judges’ Letters.
NG-505 Pros. Ex. 71 Circular letter from defendant Schlegelberger 628
to the presidents of the
courts of appeal and attorneys general,
24 July 1941, entitled “Mild
sentences against Poles.”
NG-508 Pros. Ex. 72 Circular letter from defendant Schlegelberger 432
to presidents of district
courts of appeal, 15 December 1941,
quoting from a speech by Hitler
and stating that judges and public
prosecutors must keep Hitler’s
words in mind.
NG-540 Pros. Ex. 260 Letter from Meissner to defendant 342
Schlegelberger, 22 April 1941, concerning
transfer of convicted prisoners
to the Gestapo.
NG-546 Pros. Ex. 141 Draft of a notice to Hitler, initialed 879
by defendant Rothenberger and
Vollmer, November 1943, reporting
a death sentence imposed by the
People’s Court upon a former German
naval captain for remarks alleged
to have assisted the enemy
and undermined the morale of the
army.
NG-548 Pros. Ex. 347 Letter from defendant Lautz, Chief 846
Reich Prosecutor at the People’s
Court, to the Reich Minister of Justice,
23 February 1942, concerning
the question of prosecuting foreigners
for treason against Germany
for injuries to ethnic Germans
abroad.
NG-558 Pros. Ex. 143 Letter from Reich Minister of Justice 674
Thierack to Bormann, 13 October
1942, concerning the “Administration
of Justice against
Poles, Russians, Jews, and gypsies.”
NG-589 Pros. Ex. 372 Undated report from the district 643
court in Hamburg concerning
granting of benefits for destitute
persons to a Jew, together with two
letters of defendant Rothenberger
and an interoffice memorandum, 13
February-22 May 1942.
NG-590 Pros. Ex. 198 Letter from the Reich Ministry of 597
Justice, signed by defendant Mettgenberg,
to the president of the
district court and the Chief Public
Prosecutor in Hamburg, 1 April
1939, concerning the redesignation
of Jewish names in criminal proceedings.
NG-595 Pros. Ex. 136 The Bratek case, 10 December 1942–20 867
July 1943. Extracts from the
official files, including Gestapo report
of 10 December 1942; judgment
of the People’s Court after
trial of 20 May 1943; and note of
20 July 1943 on the execution of
the death sentence.
NG-611 Pros. Ex. 64 Correspondence between Bormann, 425
Lammers, and defendant Schlegelberger,
25, 29 May and 28 June
1941, concerning a suggestion of
Hitler to convert a prison sentence
into a death sentence.
NG-627 Pros. Ex. 474 Letter of defendant Klemm to the 545
president of the Hamburg district
court of appeal, 1 March 1945, stating
that sentences in cases of “undermining
the military efficiency”
of Germany have been too lenient.
(_Also Rothenberger 73, Rothenberger
Def. Ex. 7._)
NG-629 Pros. Ex. 28 Extracts from a report on a 1 February 327
1939 conference at the Ministry
of Justice between defendant
Rothenberger and various court
presidents. (_Also Rothenberger 3,
Rothenberger Def. Ex. 3._)
NG-629 Pros. Ex. 28 Extracts from a report on a conference 594
of defendant Rothenberger
and various court presidents, 1
February 1939, concerning “Race
Pollution,” exclusions of Jews from
employment, and “the legal treatment
of Jews.” (_Also Rothenberger
3, Rothenberger Def. Ex. 3._)
NG-630 Pros. Ex. 428 Letter from defendant Schlegelberger 912
to Chief Public Prosecutors and
senior public prosecutors, 20 July
1935, concerning the “struggle
against political Catholicism.”
NG-665 Pros. Ex. 346 Supplementary decree, 31 January 642
1942, concerning the administration
of penal justice against Poles and
Jews in the Incorporated Eastern
Territories.
NG-671 Pros. Ex. 220 Extracts from the situation report of 885
defendant Lautz, Chief Public Prosecutor
at the People’s Court, to
Thierack, 19 February 1944, concerning
the undermining of military
efficiency.
NG-674 Pros. Ex. 100 Circular letter from the Reich Ministry 880
of Justice to leading judges and
prosecutors, 19 February 1944,
transmitting excerpts from reports
of a conference of justice officials
on cases of “undermining” and
“malicious political acts.”
NG-676 Pros. Ex. 178 Letter from defendant Klemm to the 541
president of the Stuttgart Court
of Appeal, 5 July 1944, stating
sentences in that area were too
lenient, particularly in cases in
which defendant Cuhorst presided.
NG-677 Pros. Ex. 188 Extracts from affidavit of Dr. Escher, 411
German attorney, concerning the
use of the nullity plea.
NG-685 Pros. Ex. 259 Extracts from a letter by Chief Public 840
Prosecutor at Hamm to the Minister
of Justice, for defendant
Schlegelberger, 29 January 1941,
concerning treason, breach of regulations
by foreign workers, criminal
proceedings against Polish civilians,
and applicability of decrees
against public enemies and violent
criminals.
NG-700 Pros. Ex. 625 Decree, 3 September 1939, of the 186
Fuehrer and Reich Chancellor concerning
execution of the right of
pardon.
NG-715 Pros. Ex. 112 Decree, 28 February 1933, by Reich 160
President von Hindenburg, cosigned
by Reich Chancellor Hitler
and Reich Ministers Frick and
Guertner, suspending constitutional
rights and instituting other measures.
(_Also Schlegelberger 91,
Schlegelberger Def. Ex. 84._)
NG-715 Pros. Ex. 112 The “Enabling Act.” (_Also General 163
Def. 1, Klemm Def. Ex. 1._)
NG-715 Pros. Ex. 112 Law, 7 April 1933, concerning admission 164
to the bar.
NG-715 Pros. Ex. 112 Extracts from the first law for the 167
transfer of the administration of
justice to the Reich, 16 February
1934.
NG-715 Pros. Ex. 112 Extracts from the law, 24 April 1934, 169
amending provisions of criminal
law and criminal procedure.
NG-715 Pros. Ex. 112 Extracts from the second law concerning 172
the transfer of the administration
of justice to the Reich,
5 December 1934.
NG-715 Pros. Ex. 112 Extracts from law of 28 June 1935 176
amending the Criminal (Penal)
Code.
NG-715 Pros. Ex. 112 Extracts from the law, 28 June 1935, 177
The Code of Criminal Procedure
and the Judicature Act.
NG-715 Pros. Ex. 112 Law, 15 September 1935, for the protection 180
of German blood and honor.
NG-715 Pros. Ex. 112 Extracts from the law against economic 182
sabotage, 1 December 1936.
NG-715 Pros. Ex. 112 Extracts from decree, 17 August 184
1938, for special criminal law in
time of war and special emergency.
NG-715 Pros. Ex. 112 Decree, 1 September 1939, concerning 185
extraordinary measures with
regard to foreign radio broadcasts.
NG-715 Pros. Ex. 112 Extracts from the war economy decree 187
of 4 September 1939.
NG-715 Pros. Ex. 112 Decree, 5 September 1939, against 188
public enemies.
NG-715 Pros. Ex. 112 Extracts from decree, 25 November 192
1939, supplementing penal provisions
for protection of the military
efficiency of the German people.
NG-715 Pros. Ex. 112 Decree of 5 December 1939 against 193
violent criminals.
NG-715 Pros. Ex. 112 Decree of 6 May 1940 on the extension 195
of the application of German
criminal law.
NG-715 Pros. Ex. 112 Extracts from law of 4 September 199
1941 amending the Criminal
(Penal) Code.
NG-715 Pros. Ex. 112 Extracts from the eleventh regulation 200
on the Reich Citizenship Law,
25 November 1941.
NG-715 Pros. Ex. 112 Fuehrer Decree, 21 March 1942, concerning 203
simplification of the administration
of justice.
NG-715 Pros. Ex. 112 Unanimous decision of the greater 204
German Reichstag, 26 April 1942,
concerning unrestricted powers of
Adolf Hitler.
NG-715 Pros. Ex. 112 Decree, 15 July 1942, signed by Keitel, 205
Stuckart and defendant Schlegelberger,
extending special jurisdiction
of SS and police or military
courts to the Protectorate of Bohemia
and Moravia.
NG-715 Pros. Ex. 112 Extracts from decree of 13 August 206
1942 for the further simplification
of the administration of justice in
criminal cases.
NG-715 Pros. Ex. 112 Hitler decree, 20 August 1942, concerning 207
special powers authorizing
the Reich Minister of Justice to
deviate from any existing law in
establishing a National Socialist
administration of justice.
NG-715 Pros. Ex. 112 Extracts from the Reich juvenile 208
court law of 10 November 1943.
NG-715 Pros. Ex. 112 Fifth decree, 5 May 1944, amending 209
the decree concerning special criminal
law in time of war and special
emergency.
NG-715 Pros. Ex. 112 Decree of the Reich government, 21 218
March 1933, on the formation of
Special Courts.
NG-715 Pros. Ex. 112 Decree of 21 February 1940 concerning 222
jurisdiction of criminal courts,
Special Courts, and additional provisions
of criminal procedure.
NG-715 Pros. Ex. 112 Letter from Under Secretary Freisler 226
to presidents and public prosecutors
at courts of appeal, 26 September
1941, concerning handling of
certain wartime crimes by Special
Courts to speed up proceedings.
NG-715 Pros. Ex. 112 Extract from law of 24 April 1934 231
amending regulations of penal law
and criminal procedure.
NG-715 Pros. Ex. 112 Extracts from law, 16 September 233
1939, amending regulations of general
criminal procedure, military
criminal procedure and the penal
code.
NG-715 Pros. Ex. 112 Law of 14 July 1933 for the prevention 243
of progeny with hereditary
diseases (Gesetz zur Verhuetung
Erbkranken Nachwuchses).
NG-715 Pros. Ex. 112 Extracts from decree of 5 December 245
1933 for the execution of the law
for prevention of progeny with
hereditary diseases.
NG-715 Pros. Ex. 112 Third decree for the implementation 246
of the law for the prevention of
progeny with hereditary diseases,
25 February 1935.
NG-715 Pros. Ex. 112 Decree of 15 February 1945 on 250
civilian courts martial procedure.
NG-715 Pros. Ex. 112 Extract from law, 16 September 1939, 405
amending regulations of general
criminal procedure, military criminal
procedure, and the penal code.
NG-715 Pros. Ex. 112 Decree of 21 February 1940 concerning 410
the nullity plea.
NG-715 Pros. Ex. 112 Second Executive Decree, 31 May 627
1941, for the execution of the law
for the protection of German Blood
and Honor.
NG-715 Pros. Ex. 112 Decree of 4 December 1941 concerning 632
the administration of penal justice
against Poles and Jews in the
Incorporated Eastern Territories.
NG-715 Pros. Ex. 112 Thirteenth regulation under the 685
Reich Citizenship Law, 1 July 1943.
NG-744 Pros. Ex. 500 Letter from the Reich Ministry of 668
Justice, signed by Freisler, to
presidents of district courts of appeal
and others, 7 August 1942,
concerning “Poles and Jews in proceedings
against Germans.”
NG-752 Pros. Ex. 24 Extract from Hitler’s speech to the 436
German Reichstag, 26 April 1942,
requesting confirmation of the
right to keep everyone at his duty
and expressing his intention to intervene
where judges “do not understand
the demand of the hour.”
NG-770 Pros. Ex. 291 Circular of the Reich Minister of Justice 917
signed by defendant Engert,
to attorneys general, 12 December
1944, redefining limitations on divine
services for prisoners.
NG-787 Pros. Ex. 507 Letter of the Reich Ministry of Justice 676
to leading judges and prosecutors,
4 April 1944, transmitting a
report of the Reich Statistical Bureau
on “Criminality in the Greater
German Reich in the year 1942,”
exclusive of cases handled by the
People’s Court.
NG-789 Pros. Ex. 432 Announcement by the Reich Minister 248
of Justice, 17 December 1943, concerning
the appointment of a Referent
with the duty of training
judges and others in a racial,
hereditary, and criminological-biological
line of thought.
NG-825 Pros. Ex. 433 Report on a conference, 22 August 365
1939, between defendant Rothenberger
and SS Major Eckhardt, SD
Chief in Hamburg, concerning cooperation
of the judiciary with the
SD in Hamburg.
NG-857 Pros. Ex. 434 Letter from Thierack to the president 506
of the Reich Supreme Court,
29 September 1943, proposing SS
Generals Ohlendorf and Cerff as
guest speakers.
NG-880 Pros. Ex. 459 Letter from Ministry of Justice, 598
signed by defendant Schlegelberger,
to Minister of Interior and
the Fuehrer’s deputy, 3 February
1940, transmitting drafts of decrees
for introducing German law
into Incorporated Eastern Territories,
and a memorandum of the
Reich Chancellery initialed by
Lammers and defendant Klemm.
NG-900 Pros. Ex. 453 Letter from the Chief of Security Police 714
and SD to Ministry of Justice,
3 May 1944, entitled “Requests
made by the courts for information
on Jews,” and interoffice memorandums
leading to dispatching of
a letter drafted by defendant Altstoetter.
NG-901 Pros. Ex. 436 Two orders signed by defendant 363
Schlegelberger for the initiation of
criminal proceedings against notaries
because of their attitude toward
the National Socialist State,
19 May 1938 and 6 December 1938.
NG-938 Pros. Ex. 438 Letter from the office of the Supreme 235
Chief of the SA, signed by defendant
Klemm, 4 December 1936, proposing
five SA leaders as associate
judges of the People’s Court.
NG-1070 Pros. Ex. 439 Law of 1 December 1933 concerning 166
special Nazi Party and Storm
Troops’ (SA) jurisdiction over
members of the Nazi Party, the
SA, and their subordinate organizations.
NG-1106 Pros. Ex. 462 Extract from the minutes of a conference 642
between defendant Rothenberger
and three judges of the
Hamburg courts, 23 January 1942,
concerning the exemption of destitute
Jews from court fees.
NG-1612 Pros. Ex. 519 Decree of 13 June 1940 concerning 607
organization of courts in the Incorporated
Eastern Territories.
NG-1615 Pros. Ex. 521 Decree of 31 May 1941 concerning 626
the introduction of the Nuernberg
racial laws in the Incorporated
Eastern Territories.
NG-1656 Pros. Ex. 535 Draft of proposed memorandum to 701
Hitler from Ministry of Justice,
April 1943, initialed by defendant
Rothenberger and Ministerial Director
Vollmer, concerning imminent
prosecution of a Jewess for
selling her mother milk to a German
pediatrician.
NG-1807 Pros. Ex. 626 Decree of 11 June 1940 concerning 197
execution of prison sentences for
crimes committed in time of war.
NG-1808 Pros. Ex. 557 Extracts from the official files in the 913
case against Luitpold Schosser, a
Catholic priest, sentenced on 19
December 1942, under the law
against insidious attacks on State
and Party by a Special Court
headed by defendant Rothaug.
NG-1886 Pros. Ex. 546 Letter from defendant von Ammon to 804
the attorney general in Munich, 22
November 1944, concerning the
execution of “Night and Fog”
prisoners.
NG-1918 Pros. Ex. 531 Decree of 25 August 1944 for the 210
protection of the total war effort.
NG-2218 Pros. Ex. 604 Circular letter from defendant 321
Schlegelberger to presidents of district
courts of appeal, 31 January
1938, requesting lists of attorneys
allowed to defend prisoners held in
protective custody.
635-PS Pros. Ex. 109 Letter from Lammers to Reich Minister 578
of Justice Thierack, 4 June
1944, concerning “People’s justice
against Anglo-American murderers,”
and enclosing Bormann’s circular
to Nazi Party leaders on this
subject.
648-PS Pros. Ex. 264 Directive on behalf of the Reich Minister 343
of Justice to public prosecutors,
22 October 1942, concerning
the “transfer of asocial prisoners
to the police.”
654-PS Pros. Ex. 39 Memorandum of the Reich Minister 504
of Justice on a conference with
Himmler, 18 September 1942, concerning
“special treatment at the
hands of the police” where “judicial
sentences are not severe
enough,” the working of “asocial
elements” to death, and other matters.
662-PS Pros. Ex. 263 Notes of the Reich Ministry of Justice 670
on a conference of 9 October
1942 on transfer of convicts and
“asocials” in various categories to
the Africa brigade, special commandos
in the East, and to Himmler.
664-PS Pros. Ex. 348 Circular letter of Himmler to the 713
supreme Reich authorities, 10
March 1944, noting that “the
accomplished evacuation and isolation”
of Jews and gypsies had made
meaningless the previous manner
of publishing special directives concerning
them.
669-PS Pros. Ex. 305 Keitel letter of 12 December 1941, 777
transmitting the first implementation
decree to the “Night and Fog”
decree.
671-PS Pros. Ex. 304 Letter from Keitel, Chief of Armed 774
Forces High Command, to Ministry
of Justice, 12 December 1941,
transmitting Hitler’s “Night and
Fog” decree and its first implementation
order; interoffice memorandum
requesting transmittal of the
letter to defendant Schlegelberger.
701-PS Pros. Ex. 268 Directive of 1 April 1943, on behalf 347
of the Reich Minister of Justice announcing
that Poles and Jews released
from prisons pursuant to a
decision of the Reich Security Main
Office, are to be transferred to concentration
camps.
1393-PS Pros. Ex. 508 Law, 20 December 1934, on insidious 173
acts against State and Party for
the protection of Party uniforms
[Heimtueckegesetz].
1733-PS Pros. Ex. 303 Secret “Night and Fog” Decree of 775
Hitler, signed by Keitel, 7 December
1941, concerning measures to
be taken against persons offering
resistance to German occupation.
2521-PS Pros. Ex. 310 Letter from the SS Economic and 786
Administrative Main Office to concentration
camp commanders, 18
August 1942, transmitting instructions
for treatment of “Night and
Fog” prisoners.
4055-PS Pros. Ex. 401 Letter from defendant Schlegelberger 646
to Lammers, 12 March 1942, expressing
concern about contemplated
anti-Jewish measures; reply
from Lammers, 18 March 1942; letter
from Schlegelberger to seven
government and Party agencies on
“The final solution of the Jewish
problem,” 5 April 1942; file note on
situation of Berlin Jews, 21 November
1941.
Altstoetter Altstoetter Extract from the German Civil Service 182
10 Ex. 1 Law (Deutsches Beamtengesetz,
or “DBG”), 26 January 1937.
Joel 8 Joel Ex. 11 Letter of Reich Minister of Justice 314
Guertner to Reich Minister of the
Interior Frick, 14 May 1935, protesting
against the “Mistreatment
of Communist prisoners by policemen.”
Klemm 1 Klemm Ex. 1 The “Enabling Act.” (_Also NG-715, 163
Pros. Ex. 112._)
Klemm 20 Klemm Ex. 20 Letters from Guertner, Reich Minister 352
of Justice, to Hitler’s deputy,
Rudolf Hess, and to the SA Chief
of Staff, Viktor Lutze, 5 June 1935,
concerning interference in the trial
of camp Hohenstein personnel.
Klemm 28 Klemm Ex. 28 Order of Prussian Ministry of Justice, 313
15 March 1934, informing authorities
of Goering’s decree of 11
March 1934, authorizing the Gestapo
and certain Prussian authorities
to order protective custody for
political reasons.
Klemm 29 Klemm Ex. 29 Decree of 17 October 1939, establishing 190
special jurisdiction and providing
for judges appointed by
Himmler, for criminal proceedings
against members of the SS and
police formations on special tasks.
Klemm 33 Klemm Ex. 33 Party Chancellery instructions to 361
Party officials, 31 August 1937 and
9 February 1938, concerning the
exclusive concern of judicial authorities
in prosecuting punishable
offenses and procedures where
Party members may have committed
them.
Klemm 33 Klemm Ex. 33 Announcement of Martin Bormann, 540
Party Chancellery chief, 2 December
1942, requesting Gauleiter to
inform the Party Chancellery of
their opinions on the Judges’ Letters
and of good and bad verdicts.
Klemm 57 Klemm Ex. 57 Extracts from decree, 13 December 211
1944, for the further adaptation of
criminal procedure to the requirements
of total war (fourth decree
for the simplification of criminal
procedure).
Klemm 58 Klemm Ex. 58 Decree signed by Dr. Conti and defendant 249
Klemm, 14 November 1944,
temporarily suspending activities
of higher hereditary health courts,
and automatically legalizing pending
contested decisions.
Klemm 68a Klemm Ex. 68a Decree of Himmler to all higher SS 568
and police leaders, 10 August 1943,
concerning “controversies between
German citizens and parachuted
English and American terror
fliers.”
Rothenberger Rothenberger Extracts from a report on a 1 February 327
3 Ex. 3 1939 conference at the Ministry
of Justice between defendant Rothenberger
and various court presidents.
(_Also NG-629, Pros. Ex.
28._)
Rothenberger Rothenberger Extracts from a report on a conference 594
3 Ex. 3 of defendant Rothenberger
and various court presidents, 1
February 1939, concerning “race
pollution,” exclusions of Jews from
employment, and “the legal treatment
of Jews.” (_Also NG-629,
Pros. Ex. 28._)
Rothenberger Rothenberger Letter of defendant Klemm to the 545
73 Ex. 7 president of the Hamburg District
Court of Appeal, 1 March 1945,
stating that sentences in cases of
“undermining the military efficiency”
of Germany have been too
lenient. (_Also NG-627, Pros. Ex.
474._)
Schlegelberger Schlegelberger Order of 16 January 1942 for execution 201
23 Ex. 63 of the Fuehrer decree concerning
the position of chief of the
Party Chancellery.
Schlegelberger Schlegelberger Letter from the chief of the Fuehrer’s 363
34 Ex. 92 Nazi Party Chancellery to defendant
Schlegelberger, 30 January
1938, stating that Hitler has directed
that Schlegelberger be accorded
membership in the Nazi
Party.
Schlegelberger Schlegelberger Decree of 6 June 1940 on the introduction 608
60 Ex. 26 of German penal law in the
Incorporated Eastern Territories.
Schlegelberger Schlegelberger Extracts from an article by Dr. Roland 636
61 Ex. 27 Freisler, Under Secretary in
the Reich Ministry of Justice, January
1942, concerning criminal jurisdiction
for Poles.
Schlegelberger Schlegelberger Extracts from Decree, 21 February 234
88 Ex. 81 1940, concerning the jurisdiction of
criminal courts, Special Courts,
and additional provisions of criminal
procedure.
Schlegelberger Schlegelberger Extracts from the regulation of the 318
90 Ex. 83 Reich Ministry of the Interior, 25
January 1938, concerning protective
custody.
Schlegelberger Schlegelberger Decree, 28 February 1933, by Reich 160
91 Ex. 84 President von Hindenburg, cosigned
by Reich Chancellor Hitler
and Reich Ministers Frick and
Guertner, suspending constitutional
rights and instituting other measures.
(_Also Document NG-715,
Pros. Ex. 112._)
Schlegelberger Schlegelberger Decree, 10 July 1937, of the Fuehrer 183
127 Ex. 123 and Reich Chancellor concerning
appointment of civil servants and
termination of civil service status.
TESTIMONIES
Page
Extracts from the testimony of defendant _Altstoetter_ 766
Extracts from the testimony of defendant von _Ammon_ 815
Extracts from the testimony of defendant _Barnickel_ 902
Extracts from the testimony of prosecution witness Friedrich _Elkar_ 367
Extracts from the testimony of prosecution witness Ernst _Escher_ 413
Extracts from the testimony of defense witness Hans _Hagemann_ 579
Extracts from the testimony of defense witness Professor Herman _Jahrreiss_ 252
Extracts from the testimony of defendant _Klemm_ 384, 547, 587, 733, 939
Extracts from the testimony of defendant _Lautz_ 406, 888
Extracts from the testimony of prosecution witness Rudolf _Lehmann_ 804
Extract from the testimony of defendant _Mettgenberg_ 212
Extract from the testimony of defendant _Oeschey_ 761
Extracts from the testimony of defendant _Rothaug_ 391, 416, 744, 907, 930
Extracts from the testimony of defendant _Rothenberger_ 387, 489, 511, 754
Extracts from the testimony of defendant _Schlegelberger_ 284, 349, 460, 717, 808, 887
Extracts from the testimony of prosecution witness Father Luitpold _Schosser_ 918
U. S. GOVERNMENT PRINTING OFFICE: 1951--907802
FOOTNOTES:
[1] Although the subject material in many of the cases overlaps, it was
believed that this arrangement of the cases would be most helpful to
the reader and the most feasible for publication purposes.
[2] See protocol p. XVIII for correction of this paragraph.
[3] Judge Harding’s middle name was correctly used as “Woodward” in
General Orders No. 52, OMGUS, 21 June 1947. See section VII, opinion
and judgment.
[4] Id.
[5] The order constituting the Tribunal and designating the judges,
General Orders No. 11, 14 February 1947, is reproduced on page 7.
Because of illness, Judge Marshall was obliged to retire from the case
after the trial was under way. Thereupon, Judge Brand succeeded Judge
Marshall as Presiding Judge and, pursuant to Article II, paragraphs
(_b_) and (_f_) of Military Government Ordinance No. 7, Judge
Harding became a full member of the Tribunal. The text of General Order
No. 52, OMGUS, 21 June 1947, is quoted in the opinion and judgment,
(sec. VII). The final order of the Military Governor providing for
these changes in the constitution of the Tribunal is reproduced on page
8.
[6] A “Staatssekretaer” is approximately the equivalent of an under
secretary in one of the executive departments of the United States
Government. During the trial “Staatssekretaer” was translated
synonymously as State Secretary or Under Secretary.
[7] This caption, with the necessary factual changes, appeared at
the top of the first page of the transcript for each day of the
proceedings. Hereinafter it will be omitted from all extracts from the
transcript.
[8] The defendant Westphal committed suicide in the Nuernberg prison
adjacent to the Palace of Justice where the trials were held.
[9] Tr. pp. 34–137, 5 March 1947.
[10] Trial of the Major War Criminals, Nuremberg, 1947, volume I, page
181.
[11] These two charts are reproduced below in section IV C 2.
[12] Later nine more were formed in Austria, Danzig, Poland,
Sudetenland, and Bohemia, making 35 in all.
[13] Hitler’s speech to the Reichstag 13 July 1934, Voelkischer
Beobachter, 15 July 1934.
[14] Voelkischer Beobachter, 27 August 1930.
[15] Deutsche Allgemaine Zeitung, 28 November 1934.
[16] Speech before the NSDAP congress, 14 September 1935; Dokumente der
Deutschen Politik, volume 3, page 315.
[17] _A Nation Beholds Its Rightful Law_, lecture at the
University of Rostock, 13 February 1936.
[18] Trial of the Major War Criminals, op. cit., page 179.
[19] 1933 Reichsgesetzblatt I, 175. This decree is one of over 40
laws and decrees collected by the prosecution and introduced as
Document NG-715, Prosecution Exhibit 112. Most of these are reproduced
chronologically in section IV B below. See footnote 1, page 160.
[20] 26 January 1937, Reichsgesetzblatt I, 39, 71.
[21] Decree of the Reich President for Protection against Insidious
Attacks on the Government of the Nationalist Movement of 21 March 1933,
Reichsgesetzblatt I, page 135.
[22] 15 September 1935; Reichsgesetzblatt I, page 1146.
[23] 17 August 1938; 1939 Reichsgesetzblatt I, page 1455.
[24] 28 June 1935; 1935 Reichsgesetzblatt I, page 839.
[25] 28 June 1935; 1935 Reichsgesetzblatt I, page 844.
[26] Speech before the NSDAP Congress, op. cit., page 315.
[27] Speech before members of People’s Court, 22 July 1942; reproduced
below in section V C 2a.
[28] Reproduced below in section V C 1a.
[29] 6 May 1940, Reichsgesetzblatt I, page 754.
[30] 16 September 1939, Reichsgesetzblatt I, page 1841.
[31] Decree of 21 February 1940, Reichsgesetzblatt I, page 407.
[32] Decree of 13 August 1942, Reichsgesetzblatt I, page 508.
[33] Decree of 1 September 1939, Reichsgesetzblatt I, page 1658.
[34] Extracted from Voelkischer Beobachter, 27 April 1942; reproduced
below in section V C 2a.
[35] Resolution of the Greater German Reichstag, 26 April 1942,
“Deutsche Justiz,” 1942, page 283.
[36] 20 August 1942, 1942 Reichsgesetzblatt, page 535.
[37] Periodical of Academy for German Law, 1 September 1942, page 44.
[38] Decree on Courts Martial Procedure, 15 February 1945,
Reichsgesetzblatt I, page 30.
[39] Reproduced below in section V C 3 a.
[40] Complete text of the Moscow Declaration is reproduced in the
preface pages of this volume. See table of contents.
[41] Complete text of Ordinance No. 7 is reproduced in the preface
pages of this volume. See table of contents.
[42] Trial of the Major War Criminals, _op. cit._, page 253.
[43] Ibid., pages 253–255.
[44] Complete text of Control Council Law No. 10 is reproduced in the
preface pages of this volume. See table of contents.
[45] Trial of the Major War Criminals, _op. cit._, page 304.
[46] Ibid., p. 318.
[47] Ibid., pages 318–319.
[48] United States _vs._ Holt, 108 F. 2d 365 (C.C.A., 7th, 1939).
[49] Reproduced below in section V D 2.
[50] Trial of the Major War Criminals, _op. cit._, pages 232 and
233.
[51] Rudolf Lehmann was a defendant in Case 12, the “High Command
Case.” He was convicted and sentenced to 7 years’ imprisonment. See
volumes X and XI, this series.
[52] Ibid., p. 271.
[53] 1943. Reichsgesetzblatt I, p. 372.
[54] Reproduced below in section V E.
[55] Reproduced below in section V C 3 b.
[56] Wigmore, John Henry, _A Treatise on the Anglo-American System of
Evidence in Trials at Common Law_ (Wigmore on Evidence), (Little,
Brown & Co., Boston, 1940), 3d Ed., vol. II, p. 206.
[57] Ibid., sec. 363, p. 274.
[58] Ibid., p. 275.
[59] Ibid.
[60] Ibid., p. 275–276.
[61] Ibid., p. 287.
[62] The Volkszeitung of Reuss, 16 March 1931.
[63] Deutscher Juristentag, 30 May 1933, pp. 7 and 8.
[64] Deutsche Justiz, 1941, p. 441.
[65] Ibid., p. 839.
[66] Preussisches Justizministerialblatt, 24 April 1933 (I 9474), p.
130.
[67] Decree concerning Community Life of Undergraduates of Law
(referendare) admitted to the Second State Examination, Preussisches
Justizministerialblatt, (I 10136) 29 June 1933, p. 210.
[68] Trial of the Major War Criminals, _op. cit._, pp. 255–257.
[69] Ibid., pp. 270–273.
[70] Ibid., pp. 258–261.
[71] This general opening statement by Dr. Kubuschok was made, as noted
by the Tribunal, “in behalf of all of the defendants.” (Tr. p. 4055.)
Both this statement (Tr. pp. 4057–4083) and those on behalf of each
defendant (Tr. pp. 4084–4221) were delivered on 23 and 24 June 1947.
[72] Professor Jahrreiss appeared as a defense witness on 25 and 26
June 1947. Extracts from his testimony are reproduced below in section
IV D. Dr. Niethammer did not appear as a witness.
[73] Tr. pp. 4084–4089.
[74] The general opening statement on behalf of all defendants is
reproduced immediately above, section III B.
[75] Tr. pp. 4090–4106.
[76] Tr. pp. 4106–4119.
[77] Transcript pages 4120–4124.
[78] Tr. pp. 4138–4140.
[79] Document is reproduced below in section V D 3.
[80] Tr. pp. 4141–4148.
[81] Technische Nothilfe, Technical Emergency Corps.
[82] The prosecution collected over forty different laws, decrees,
extracts from the Weimar constitution, or German legal writings
in Document NG-715 and introduced these in one document book as
Prosecution Exhibit 112. Numerous decrees and laws from Document NG-715
are reproduced in this and later sections of this volume. Therefore,
where a particular law or decree is reproduced in different parts
of this volume under the heading “Partial Translation of Document
NG-715,” this does not necessarily mean that only extracts from that
law or decree are reproduced. It merely means that only a part of
Document NG-715, which in fact contained many different “documents,” is
reproduced at that point.
[83] The defense often included all or parts of documents in their
document books which had previously been introduced as exhibits by the
prosecution. This was not necessary, of course, in order to give the
defense the benefit of materials contained in prosecution exhibits,
but it was apparently done to bring together in one place (the defense
document books) the documentary materials upon which the defendant
principally relied. In this volume the editors have occasionally noted
the designation of documents as both prosecution and defense exhibits.
[84] During the early period of the Nazi regime, this decree served as
the basis for numerous “restrictions on personal freedom,” including
the placing of persons in “protective custody” without trial. For
example, see the Goering decree concerning the Secret State Police
(Gestapo) of 11 March 1934, (Klemm Doc. 28, Klemm Ex. 28), reproduced
below in section V B. See also Document NG-478, Prosecution Exhibit 61,
in section C-3.
[85] These articles, contained in part II (“Fundamental Rights and
Duties of Germans”) of the Weimar constitution, read:
“Article 114. Personal liberty is inviolable. No encroachment on
or deprivation of personal liberty by any public authority is
permissible except in virtue of a law.
“Persons, who have been deprived of their liberty, shall be
informed--at the latest on the following day--by what authority
and on what grounds the deprivation of liberty has been ordered;
opportunity shall be given them without delay to make legal
complaint against such deprivation.
“Article 115. The residence of every German is an inviolable
sanctuary for him; exceptions are admissible only in virtue of
laws.
* * * * *
“Article 117. The secrecy of correspondence and of the postal,
telegraph, and telephone services is inviolable. Exceptions may
be permitted only by law of the Reich.
“Article 118. Every German has the right, within the limits of
general laws, to express his opinion freely, by word of mouth,
writing, printed matter or picture, or any other manner. This
right must not be affected by any conditions of his work or
appointment, and no one is permitted to injure him on account of
his making use of such rights.
“No censorship shall be enforced, but restrictive regulations
may be introduced by law in reference to cinematograph
entertainments. Legal measures are also admissible for the
purpose of combating bad and obscene literature, as well as for
the protection of youth in public exhibitions and performances.
* * * * *
“Article 123. All Germans have the right without notification or
special permission to assemble peaceably and unarmed.
“Open-air meetings may be made notifiable by a law of the Reich,
and in case of direct danger to public security may be forbidden.
“Article 124. All Germans have the right to form unions
and associations for purposes not in contravention of the
penal laws. This right may not be restricted by preventive
regulations. The same provisions apply to religious unions and
associations.
“Every union is at liberty to acquire legal rights in accordance
with the provisions of the Civil Code. These rights shall not
be refused to a union on the ground that its objects are of
political, social-political, or religious nature.
* * * * *
“Article 153. Property is guaranteed by the constitution. Its
extent and the restrictions placed upon it are defined by law.
“Expropriation may be effected only for the benefit of the
general community and upon the basis of law. It shall be
accompanied by due compensation, save insofar as may be
otherwise provided by a law of the Reich. In case of dispute
as to the amount of compensation, resort may be had to legal
proceedings in the ordinary course, unless a law of the Reich
otherwise determines. Property of the states, local authorities,
and public utility associations may be expropriated by the Reich
only on payment of compensation.
“The ownership of property entails obligations. Its use must at
the same time serve the common good.”
[86] This act became known as the “Enabling Act” because it authorized
Hitler and his government to alter the statutory law and even the
constitution of Germany without the participation or consent of the
legislative bodies. See the testimony of the expert witness for the
defense, Professor Jahrreiss, section D, below.
[87] This law repealed an earlier law of 28 April 1933 creating a
special basis for imposing disciplinary penalties on members of the SA
and the SS.
[88] Before the reorganization of the German judicial system by the
Hitler regime, the administration of justice was largely the function
of the separate German states (Laender) making up the Reich.
[89] For more extensive evidence from the record concerning treason and
related matters, see section V E, below.
[90] This part is reproduced below on page 231.
[91] The full text of this law was submitted in evidence as
Schlegelberger Document 26, Schlegelberger Defense Exhibit 66. The
parts of the law not reproduced here deal with arrangements for the
further transfer of the administration of justice from the individual
German states (Laender) to the Reich.
[92] Article 2 of the penal code prior to the above amendment was as
follows:
“For no act may punishment be imposed unless such punishment is
prescribed by statute before the act is committed. In the event of any
change in the statute between the time of commission of an act and the
time of rendering a decision, the most lenient statute shall apply.”
[93] This law and the Reich citizenship law of the same date constitute
the original “Nuernberg Laws,” so-called because both were issued
in Nuernberg “at the Reich Party Congress for Freedom.” The Reich
citizenship law (1935 Reichsgesetzblatt, Part I, page 1146), was signed
by Hitler and Frick, the Reich Minister of Interior. The text of this
law reads as follows:
“The Reichstag has unanimously decided on the following law,
which is herewith promulgated:
“1. (1) A citizen [Staatsangehoeriger] is one who belongs to the
protective association of the German Reich and owes allegiance
to it. (2) Citizenship can also be obtained according to
regulations of the Reich and State citizenship law.
“2. (1) A Reich citizen [Reichsbuerger] is only a citizen of
German or related blood, who proves through his behaviour, that
he is willing and fit to serve the German people and Reich
faithfully. (2) Reich citizenship [Reichsbuergerrecht] will be
obtained through the award of a Reich citizenship letter. (3)
The Reich citizen is the sole bearer of full political rights to
the extent of the law.
“3. The Reich Minister of the Interior decrees in collaboration
with the deputy of the Fuehrer those legal and administrative
regulations necessary for the execution and supplementation of
this law.”
[94] A number of further decrees as well as other materials
concerning the application of the “Nuernberg Laws” in the
Incorporated Eastern Territories (Poland), are reproduced below
in section V D 2.
[95] This extract is taken from Prof. Arthur Brand’s book,
_The German Civil Service Law_, Berlin, 1937, p. 123.
The book contains the law with extensive annotations and
commentaries, as well as further regulations on the law.
[96] Note that the decree is dated 17 August 1938, at which time
it was signed by Hitler and Keitel. It was not promulgated in
the Reichsgesetzblatt, however, until 26 August 1939. The decree
had no general preamble. The earlier articles are entitled:
“1. Substantive law;” “2. Espionage;” “3. Guerrilla warfare;”
and “4. Acts contrary to decrees issued by the commanders in
occupied foreign territory.”
[97] Materials concerning the application of the law of
“undermining of military efficiency” are reproduced below in
section V-E.
[98] This decree was not published in the Reichsgesetzblatt.
It was taken from a letter of 9 September 1939 from Meissner,
chief of the Presidential Chancellery, transmitting this decree
to the chief of the Reich Chancellery and to the chief of the
Chancellery of the Fuehrer of the Nazi Party.
[99] Material concerning the application of laws on “public
enemies” is reproduced below in section V E.
[100] For other decrees concerning the establishment and
jurisdiction of “Special Courts,” see section C 3 below.
[101] Article 1 of this decree was also introduced as a part
of Document NG-715, Prosecution Exhibit 112. This decree and a
decree of 15 July 1942 extending the jurisdiction of SS courts
into Bohemia and Moravia (reproduced later in this section as
another part of Document NG-715, Prosecution Exhibit 112) were
the subject of questions put to the defendant Schlegelberger by
Judge Harding. This testimony is reproduced below in section V D
3.
[102] The SS Death Head units were in charge of the
concentration camps.
[103] Material concerning the application of the laws on “public
enemies” are reproduced below in section V E.
[104] The Reich Citizenship Law and the Law for the Protection
of German Blood and Honor, both announced in Nuernberg on 15
September 1939, were the basic parts of the so-called “Nuernberg
Laws.” See the Law for the Protection of German Blood and Honor,
reproduced earlier in this section also as a part of Document
NG-715, Prosecution Exhibit 112. Further decrees and other
materials concerning Jews are reproduced below in section V D 2.
[105] The reference is to Hitler’s speech to the Reichstag on
the same day, 26 April 1942. Extracts from this speech (Doc.
NG-752, Pros. Ex. 24) are reproduced below in section V C 2a.
[106] The decree of 17 October 1939 establishing special
jurisdiction in criminal proceedings against members of the SS
and members of police formations on special tasks, (Klemm Doc.
29, Klemm Ex. 29), is reproduced earlier in this section.
[107] Thierack at this time had just been appointed Reich
Minister of Justice. From late January 1941 until the middle of
August 1942, the defendant Schlegelberger had been acting Reich
Minister of Justice. Evidence concerning developments in the
administration of justice while Thierack was Reich Minister are
reproduced below in section V C3.
[108] Martin Bormann, tried _in absentia_ and sentenced to
death by the International Military Tribunal. See Trial of the
Major War Criminals, _op. cit._, volume I, page 367.
[109] Reproduced on page 184 as a part of Document NG-715,
Prosecution Exhibit 112.
[110] Reproduced on page 207 as a part of Document NG-715,
Prosecution Exhibit 112.
[111] At this time the defendant Klemm was one of several Under
Secretaries (Staatssekretaere) in the Reich Ministry of Justice.
[112] Reproduced on page 207 as a part of Doc. NG-715, Pros. Ex.
112.
[113] Complete testimony is recorded in the mimeographed
transcript, (31 July, 1 Aug. 1947), pages 6235–6271; 6274–6362.
[114] Defendant Mettgenberg later testified that in department
III of the Ministry of Justice he held the position of “Referent
for legislation in the field of international penal law” and
that in department IV he was “a subdepartment chief in charge
of a sphere of work which, above all, also concerned affairs of
international penal law” (Tr. p. 6251).
[115] For various periods of time under the Hitler regime, over
half of the defendants held one or more of the various titles
and positions which the defendant Mettgenberg here proceeds to
describe. For example, the defendant Joel was a Referent and
later a ministerial counsellor; the defendants von Ammon and
Westphal were ministerial counsellors; the defendant Mettgenberg
himself was a Ministerialdirigent; the defendants Altstoetter
and Engert were ministerial directors; and the defendants
Schlegelberger, Klemm and Rothenberger were Under Secretaries.
Only two persons held the position of Reich Minister of Justice
during the Hitler regime, Guertner and Thierack, both of whom
were dead by the time of the trial. The defendant Schlegelberger
was acting Reich Minister of Justice between the death of
Guertner in January 1941 and Thierack’s appointment as Minister
in August 1942.
[116] This summary and the following two charts are part of
the “Basic Information” submitted by the prosecution at the
beginning of the case as an aid to the understanding of the
evidence to be later submitted.
[117] This decree is reproduced on p. 218.
[118] This decree is reproduced on p. 231.
[119] For further information on this subject, see
contemporaneous documents below in section C5.
[120] The decree on court martial procedure is reproduced below
in section C6.
[121] A much enlarged copy of this chart was displayed in the
courtroom during several sessions of the trial as a visual aid
in argument and in the presentation of evidence.
[122] A number of the contemporaneous documents reproduced
later in this volume deal with trials held before Special
Courts. Among the specific cases treated herein are the
Katzenberger case (Doc. NG-270, Pros. Ex. 155, and Doc. NG-154,
Pros. Ex. 152), reproduced in part below in section V D2; the
Kaminska-Wdowen case (Doc. NG-457, Pros. Ex. 201) reproduced in
part below in section V D2; and the Father Schosser case (Doc.
NG-1808, Pros. Ex. 557) reproduced in part below in section V F.
[123] This law is reproduced on p. 173.
[124] This decree is reproduced on p. 185.
[125] This decree is reproduced on p. 187.
[126] This decree is reproduced on p. 188.
[127] These decrees, dated 5 September, 4 September, 6 December,
and 1 September 1939, respectively, are reproduced in section B,
above.
[128] This decree is reproduced on p. 218.
[129] This decree, dated 28 February 1933, is reproduced on p.
160.
[130] This decree, dated 20 December 1934, is reproduced on p.
173 under the title, _Law on Insidious Acts against State and
for the Protection of Party Uniforms_.
[131] A number of the contemporaneous documents reproduced
later in this volume deal with trials held before senates of
the People’s Court. Among the specific cases treated herein are
the Stenfanowicz-Lenczewski case (Doc. NG-351, Pros. Ex. 132),
reproduced below in section V D 2; the Bratek case (Doc. NG-595,
Pros. Ex. 136), reproduced in part below in section V E; the
Beck case (Doc. NG-381, Pros. Ex. 159), reproduced in part below
in section V E; and the Paschen case (Doc. NG-546, Pros. Ex.
141), reproduced below in section V E.
[132] The law of 24 April 1934 consists of three chapters
or parts (each divided into several articles and sections).
Chapter I broadened and redefined the concepts of high treason
and treason, according to National Socialist principles by
amended articles 80–93 of the Reich criminal code. Chapter I
is reproduced in part above in section B, Selected Laws and
Decrees. Chapter III of the law, reproduced here, established
a special judicial machinery to deal with high treason and
treason as newly defined in chapters I and II. Materials on the
application and interpretation of these provisions on treason
and high treason are reproduced below in section V E.
[133] This decree is reproduced on p. 160.
[134] From 1936 until 1942, Thierack was President of the
People’s Court. In 1942, Thierack became Reich Minister of
Justice, and Freisler, President of the People’s Court.
[135] This law is reproduced in part on p. 182.
[136] Decree of the Reich President for the protection of people
and State is reproduced on p. 160.
[137] The hereditary health courts dealt with sterilization
of human beings. Because of space limitations, a relatively
small amount of the evidence introduced in the Justice Case
has been reproduced in this volume. However, sterilization was
also the subject of charges in the Medical Case. See “Medical
Experiments--Experiments for Mass Sterilization” (sec. VII A 15,
Vol. I, pp. 694 ff., this series).
[138] Reference is made to the basic law of 14 July 1933,
reproduced in part immediately above.
[139] Dr. Conti was Reich Health Leader
(Reichsgesundheitsfuehrer). His activities came into issue in
the Medical Case, United States _vs._ Karl Brandt, et al.,
Volumes I and II, this series. Conti committed suicide in 1945
after Germany’s unconditional surrender.
[140] Complete testimony is recorded in the mimeographed
transcript, 25 and 26 June 1947, pages 4253–4364.
[141] Reference is made to the Law Concerning the Head of the
German Reich, 1 August 1934 (1934 Reichsgesetzblatt, pt. I,
p. 747). This law reads as follows: “Article 1. The office
of the Reich President is herewith united with that of the
Reich Chancellor. Therefore, the prerogatives hitherto held by
the Reich President are transferred to the Fuehrer and Reich
Chancellor, Adolf Hitler. He determines his deputy. Article 2.
This law becomes effective from the time of the death of Reich
President Hindenberg.” Hindenberg died on 2 August 1934. This
law was signed by Hitler and 14 Reich ministers.
[142] This act is reproduced on page 163.
[143] Article 53 reads--“The President of the Reich appoints
and dismisses the Chancellor of the Reich and, on the latter’s
recommendation, the ministers of the Reich.”
[144] Article 54 reads--“The Chancellor of the Reich and the
ministers of the Reich require the confidence of the Reichstag
in the administration of their office. Any one of them must
resign should the confidence of the Reichstag be withdrawn by an
express resolution.”
[145] Article 50 reads--“All orders and decrees of the
President of the Reich, including those relating to the armed
forces, require for their validity the countersignature of
the Chancellor or the competent minister of the Reich. The
countersignature entails the undertaking of responsibility.”
[146] Article 76 reads--“The constitution may be amended
by legislation. But decisions of the Reichstag as to such
amendments come into effect only if two-thirds of the legal
total of members be present, and if at least two-thirds of those
present have given their consent. Decisions of the Reichsrat in
favor of amendments of the constitution also require a majority
of two-third of the votes cast. Where an amendment of the
constitution is decided by an appeal to the people as the result
of a popular initiative, the consent of the majority of the
voters is necessary.
“Should the Reichstag have decided upon an alteration of the
constitution in spite of the objection of the Reichsrat, the
president of the Reich shall not promulgate the law if the
Reichsrat, within 2 weeks, demands an appeal to the people.”
[147] Article 102 reads--“Judges are independent and subject
only to the law.”
[148] The problem referred to by the witness was briefly the
following: The value of the German currency having fallen to
a very small fraction of its prewar value, debtors were able
to pay off debts by paying, in terms of purchasing power, only
a small fraction of the original debt. This brought hardship
to many creditors. Hence, the question was whether, under the
doctrine of “unjust enrichment,” or under some similar doctrine,
or by virtue of special legislation, these debts, particularly
toward creditors in the lower economic strata, should be
“revalued.”
[149] Article 48, paragraph 2, reads--“Where public security and
order are seriously disturbed or endangered within the Reich,
the President of the Reich may take the measures necessary for
their restoration, intervening in case of need with the help of
armed forces. For this purpose he is permitted, for the time
being, to abrogate either wholly or partially the fundamental
rights laid down in articles 114, 115, 117, 118, 123, 124, and
153.”
The articles subject to temporary suspension are quoted in the
footnote to the decree of 28 February 1933, the first decree
reproduced in section B, above.
[150] Article 43 reads--“The president of the Reich holds office
for 7 years. Reelection is permissible.
“The president of the Reich may, upon the motion of the
Reichstag, be removed from office before the expiration of his
term by the vote of the people. The resolution of the Reichstag
requires to be carried by a two-thirds’ majority. Upon the
adoption of such a resolution, the president of the Reich is
prevented from the further exercise of his office. Refusal to
remove him from office, expressed by the vote of the people, is
equivalent to reelection, and entails the dissolution of the
Reichstag.
“Penal proceedings may not be taken against the president of the
Reich without the consent of the Reichstag.”
[151] The “red folder” contained the order of the Reich
President dissolving the Parliament (Reichstag). In some
instances, the Reich Chancellor would bring the “red folder”
with him into a session of the Reichstag, thus indicating that
the Reich President had already signed but not yet promulgated
the order dissolving the Reichstag and making it clear to the
Reichstag that an adverse vote would lead to the dissolution of
the Reichstag.
[152] Paragraph 3 of article 48 reads: “The President of the
Reich must, without delay, inform the Reichstag of any measures
taken in accordance with paragraph 1 or 2 of this article. Such
measures shall be abrogated up on the demand of the Reichstag.”
[153] In a previous section of his testimony, the witness had
differentiated between the ordinary private citizen, who was
affected by many norms only indirectly, and such categories as
the soldiers and the public employees, who were more directly
affected by certain norms.
[154] Article 4 reads: “The generally recognized rules of
international law are valid as binding constituent parts of the
law of the German Reich.”
[155] Article 4 is quoted in footnote immediately preceding.
Article 45, paragraph 3, reads: “Alliances and treaties with
foreign states which refer to matters in which the Reich has
legislative power require the consent of the Reichstag.”
[156] Other extracts from the testimony of defendant
Schlegelberger appear below in sections V B, V C 2 a, V D 2, V D
3, and V E. His entire testimony is recorded in the mimeographed
transcript (26, 27, 30 June, 1 July 1947, pp. 4367–4568).
[157] The portions of the record omitted here pertain to such
matters as the order of trial and the offers of documents. At
this point no testimony has been omitted.
[158] Reproduced below in section V C 1 a.
[159] Reproduced below in section V C 1 a.
[160] Opening statement for the prosecution, section III A,
above.
[161] Hans Frank, former head of the National Socialist Legal
Workers’ Association, and of the German Academy of Law, Reich
Minister and Governor General of the Government General (Poland).
[162] Prior to the Hitler regime, the administration of justice
was largely in the hands of the German Laender (States). When
Hitler abrogated the federal system, he also centralized the
administration of justice.
[163] Decree of the Fuehrer and Reich Chancellor concerning
Appointment of Civil Servants and Termination of Civil Service
Status, (Schlegelberger 127, Schlegelberger Def. Ex. 123), is
reproduced above in section IV B.
[164] According to the testimony of prosecution witness Ferber
(Tr. p. 1325) Heller and his mistress were riders in a taxicab.
[165] The defendant Westphal committed suicide in Nuernberg jail
after indictment but before the arraignment.
[166] Counsel refers to the testimony of the prosecution witness
Karl Ferber, (31 March, 1, 3, 8 April 1947, pp. 1312–1315,
1319–1466, 1576–1630, 1665–1746). None of his testimony has been
reproduced herein.
[167] Reproduced below in Section V C 2 a.
[168] Trial of the Major War Criminals, _op. cit._, volume
I, page 275.
[169] Three of the defendants in the Medical case were tried
and convicted upon charges of participation in the euthanasia
program. (See United States _vs._ Karl Brandt, et al., Vol.
I, p. 794, and Vol. II, p. 171 ff., this series.) Concerning the
time when Guertner received a copy of a Hitler notice regarding
euthanasia, the prosecution in the Justice Case introduced the
following document (630-PS, Pros. Ex. 383), the original of
which was on the letterhead of “A. Hitler” and dated Berlin, 1
September 1939:
Reichsleiter Bouhler and Dr. Brandt, M.D. are charged with the
responsibility of enlarging the authority of certain physicians
to be designated by name in such a manner that persons who
according to human judgment are incurable can, upon a most
careful diagnosis of their condition of sickness, be accorded a
mercy death.
[Signed] A. HITLER
[Handwritten note] Given to me by Bouhler on 27 August 1940.
[Signed] DR. GUERTNER III a 3/ 41g R s /
[170] Trial of the Major War Criminals, op. cit., page 182.
[171] Reproduced below in section VC3a.
[172] Reproduced above in section IVB.
[173] This document is a letter of 14 September 1937 from Thierack, at
that time President of the People’s Court, to Lammers, Chief of the
Reich Chancellery, in which Thierack suggested that Hitler address a
further meeting of the members of the People’s Court in connection with
their “fight against treason.” This exhibit is not reproduced herein.
[174] Thierack became Reich Minister of Justice in August 1942.
[175] The defendant refers to the showing before the Tribunal of a
German sound film showing scenes from the actual trial of some of the
persons allegedly involved in the attempt upon Hitler’s life on 20 July
1944 (NG-1019, Pros. Ex. 192). In that trial, Freisler acted as the
presiding judge of the People’s Court.
[176] Testimony is recorded in the mimeographed transcript, 28 April
1947, pp. 2675–2691; 2716–2729.
[177] This resolution is reproduced on page 204.
[178] Hitler’s speech to the Reichstag on 26 April 1942 (NG-752, Pros.
Ex. 24) is reproduced below in section VC2a.
[179] Dr. Ferdinand Behl testified as a prosecution witness. His
testimony is not reproduced herein. It is recorded in the mimeographed
transcript, 18–21 March 1947, pp. 562–826.
[180] The first mentioned law is reproduced in full on page 167, and
the second in part on page 172.
[181] This document is the Second Law concerning the transfer of
administration of justice to the Reich, dated 5 December 1934. Extracts
from this law are reproduced as a part of Doc. NG-715, Pros. Ex. 112,
on p. 172.
[182] Higher officials belong to the top group of German Civil
Servants. See table on German Civil Service Ranks in the appendix.
[183] Reproduced below in section V F.
[184] Extracts from the testimony of Father Schosser are reproduced
below in section V F. Further testimony of defendant Schlegelberger,
dealing with treatment of Jews, is also reproduced below, section V D 2.
[185] This order was printed in _German Justice_ (Deutsche
Justiz), 1934, 96th year, pp. 341 ff.
[186] In the IMT trial, this document was identified as Document
3751-PS and introduced in evidence as Exhibit USA-828.
[187] Wilhelm Frick was one of the defendants sentenced to death by
the International Military Tribunal. Concerning Frick’s relation to
concentration camps, the IMT stated, “From the many complaints he
received, and from the testimony of witnesses, the Tribunal concludes
that he knew of atrocities committed in these camps.” (Trial of the
Major War Criminals, op. cit., vol. I, p. 300.)
[188] The enclosure was not offered in evidence.
[189] This document was taken from “General Collection of Regulations,”
a secret publication of the Reich Security Main Office (RSHA) compiling
numerous regulations of concern to the various police agencies.
[190] The introductory paragraphs of this regulation were omitted from
the document as introduced in evidence by the defense. These paragraphs
read as follows:
“The following regulations regarding protective custody go into effect
on 1 February 1938. At the same time, the following are rescinded:
“a. My decree of 12 April 1934--I 3311 A/28.2 along with the supplement
of 26 April 1934 and 10 July 1934 (directed to governments of the
states and to the Reichstatthalters).
“b. My decree of 12 April 1935--VI B 757A/3014 along with the
supplementary decree of 1 June 1935 VI B 11568/3014 (directed to the
governments of the states, Reichstatthalters, Prussian presidents of
government districts).
“c. My decree of 17 June 1935--III P 3311/329 (directed to the state
government and the Reichstatthalter).
“d. The decree of office of Secret State Police of 3 July 1934--B Nr.
19582 II I D (directed to the presidents of the Prussian government
districts).
“e. The decree of the Political Police Commander of the Lands of 9
September 1935--B. Nr. 37840/35 II I D (directed to the political
police of the states and the Prussian State police offices).”
[191] Although the term Generalstaatsanwalt may be translated literally
as state chief attorney, the term was ordinarily translated at the
trial as “attorney general” or “chief public prosecutor.” Similarly,
Staatsanwalt has ordinarily been translated as “attorney general” or
“public prosecutor.”
[192] Defense counsel often reproduced in their document books
documents which had previously been introduced as prosecution exhibits,
and in these cases the document ordinarily acquired both a prosecution
and a defense exhibit number.
[193] Document reproduced immediately above reports on two meetings of
this conference.
[194] Document is not signed.
[195] The reference is to the widespread acts of violence against Jews
during this time, a period often referred to as “Crystal Week” because
of the large number of windows in Jewish stores which were broken.
[196] Further parts of this report, dealing with the question of “race
pollution” and the treatment of Jews, are reproduced below in section V
D 2.
[197] The exact status of the enclosures mentioned is not known.
Since the letter itself was only a draft, the marginal notes of which
indicate that it was submitted to Dr. Guertner’s consideration more
than once, it is not clear whether the original list mentioned was
initially compiled and then substituted by a completely new list, or
whether the list compiled initially was merely revised by new additions
as time passed. However, it should be pointed out that the list
reproduced below, and which was submitted as part of the file as found
by Allied authorities, contains entries as late as 30 January 1940. It
should also be noted that the three cases specifically mentioned in the
draft letter of 30 November 1939 (Latacz, Jacobs, and Gluth) are all
cases mentioned in the following list.
[198] The initials indicate that Dr. Crohne, a department chief in the
Reich Ministry of Justice, proposed this draft or, in any event saw it
before it was shown to Reich Minister Guertner. Dr. Crohne was chief,
first of Department III, and later of Department IV, in the Reich
Ministry of Justice.
[199] Concerning this list, see footnote on preceding page.
[200] Otto Meissner was Chief of the Presidential Chancellery of the
Fuehrer and Reich Chancellor. He was a defendant in Case 11, United
States _vs._ Ernst von Weizsaecker et al. See volumes XII-XIV,
this series.
[201] Concerning the relation of the extermination program to
transfers of certain groups to the Reich Leader SS, two documents
written by Thierack, Reich Minister of Justice, are especially
enlightening--Thierack’s memorandum concerning his conference with
Himmler and others on 18 September 1942, which mentions “special
treatment” (654-PS, Pros. Ex. 39), reproduced below in section V C 3 a;
Thierack’s letter of 13 October 1942 to Bormann, which mentions “the
extermination of members of these nationalities,” referring to Poles,
Russians, Jews, and gypsies (NG-558, Pros. Ex. 143), reproduced below
in section V D 2.
[202] See related documents in section V D, below, concerning the
treatment of Poles, Jews, and others.
[203] Other extracts from the testimony of defendant Schlegelberger are
reproduced above in section IV E, and below in sections V C 2a, V D 2,
V D 3, V E.
[204] Reproduced earlier in this section.
[205] Reproduced below in section VC2a.
[206] Article 340 of the Reich Criminal (Penal) Code provides as
follows: “An Official who in the exercise of or in connection with the
exercise of his office intentionally commits or causes to be committed
a bodily injury shall be punished by imprisonment for not less than 3
months. If there are extenuating circumstances, the punishment may be
reduced to 1 day imprisonment or to a fine.
“If the bodily injury is serious, confinement in a penitentiary for
not less than 2 years shall be imposed. If there are extenuating
circumstances, the punishment shall be imprisonment for not less than 3
months.” (Taken from Klemm Doc. 26, Klemm Ex. 26.)
[207] Highest court in Berlin.
[208] The enclosure is reproduced following this letter.
[209] Here follow the names, followed by initials, of 23 department
chiefs and assistants, including the names of defendants Klemm and
Mettgenberg.
[210] Both directives were taken from “Ordinances, Regulations,
Announcements,” pages 377 and 378, issued by the Chancellery of the
Nazi Party and published by the Central Publishing Office of the NSDAP,
Frz. Eher Successor, G.m.b.H., Munich.
[211] Concerning the later establishment of special jurisdiction in
criminal proceedings against members of the SS and members of police
formations on special tasks, see the decree of 17 December 1939, (Klemm
Doc. 29, Klemm Ex. 29), reproduced above in section IV B.
[212] Stahlhelm (Steel Helmet), an organization of German Veterans of
World War I.
[213] Rudolf Hess, one of the defendants before the International
Military Tribunal. See Trial of the Major War Criminals, op. cit.,
volumes I-XLII.
[214] Complete testimony is recorded in the mimeographed transcript, 30
April, 1 May 1947, pages 2884–2938.
[215] Otto Ohlendorf, defendant in the Einsatzgruppen Case, United
States _vs._ Otto Ohlendorf, et al., Case 9, volume IV, this
series.
[216] “Decree concerning the administration of Penal Justice against
Poles and Jews in the Incorporated Eastern Territories” of 4 December
1941. It is reproduced below as a part of NG-715, Prosecution Exhibit
112, page 632.
[217] The opinion and judgment in the Katzenberger case, one of the
trials in which defendant Rothaug was presiding judge, is reproduced
below in section D 2, (NG-154, Pros. Ex. 152).
[218] Reference is made to cases under the “Law on Insidious Acts
Against State and Party and for the Protection of Party Uniforms,” 20
Dec. 1934, (1393-PS, Pros. Ex. 508), reproduced above in section IV B.
[219] The role of the Party Chancellery in connection with legal
matters is discussed in the extracts from the testimony of defendant
Klemm reproduced below in section V D 2.
[220] Further extracts from the testimony of the defendant Klemm
are reproduced below in sections V C 3, V D 2, and V F. His entire
testimony is recorded in the mimeographed transcript, 3, 7, 8, 10,
11, 14, 15 July and 23 September 1947, pages 4784–4822; 4891–5025;
5027–5090; 5094–5199; 9383–9396.
[221] The defendant Klemm held a number of different official positions
during the Hitler regime, the last of which was Under Secretary in the
Reich Ministry of Justice. Extracts from his testimony reproduced later
in this volume deal with his activities during periods when he held
other positions.
[222] Reproduced earlier in this section.
[223] Further extracts from the testimony of the defendant Rothenberger
are reproduced below in sections C 2 b, C 3 a and D 2. Rothenberger’s
entire testimony appears in the mimeographed transcript, 16–18, 21,
and 22 July, 24 September 1947, pages 5324–5381; 5400–5484; 5495–5581;
9438–9478; 9512–9515.
[224] In the preceding part of his direct examination, defendant
Rothenberger testified that he had previously held the following
positions, among others: judge from 1925–1927; government counselor
(Regierungsrat and subsequently Oberregierungsrat) in the justice
administration of Hamburg from 1927–1930; and district court director
in Hamburg after 1931 (tr. 5327–5331).
[225] Later Governor General of German occupied Poland. Frank was tried
and sentenced to death by the International Military Tribunal. Thierack
later succeeded Frank as leader of the NSRB, and in 1944, Thierack
appointed the defendant Klemm as his deputy in this organization.
[226] This is a report of a conference on 22 August 1939 between
defendant Rothenberger and the SD chief in Hamburg. It is reproduced
earlier in this section.
[227] Further extracts from the testimony of defendant Rothaug are
reproduced later in this section and in sections V D 2, V E, and V F.
Complete testimony is recorded in the mimeographed transcript, 11–14,
18–22, 25, and 26 August 1947, pages 6754–6917, 6928–7016, 7179–7395,
7406–7470, 7474–7636, 7640–7648.
[228] Extracts from the testimony of the prosecution witness Elkar are
reproduced earlier in this section.
[229] Testimony of Dr. Karl Ferber, a prosecution witness, is not
reproduced herein.
[230] Doebig was a prosecution witness. His testimony is recorded in
the mimeographed transcript 9, 10 August 1947, pages 1750–1872.
[231] In German legal terminology a judgment or an interlocutory ruling
is described as “rechtskraeftig” if all regular means of opposing
or altering it (by such means as objection and appeal) have been
exhausted, or if the period of time within which objection or appeal
can be taken has lapsed. The term “rechtskraeftig” in this trial,
Justice Case, was usually translated as “final.”
[232] Further extracts from the testimony of the defendant Lautz are
reproduced below in section V E. His entire testimony is recorded in
the mimeographed transcript (23, 24, 25, 28 July 1947, pages 5761–5775,
5781–6054).
[233] Concerning the purpose of the extraordinary objection, the
defendant Schlegelberger stated the following in a letter to Hitler
on 6 May 1942: “In order to accelerate the setting aside of such
decisions [judgments not accomplishing the unrelenting punishment of
criminals], you, my Fuehrer, created the extraordinary objection to the
Reich Supreme Court. With the help of this legal resource the judgment
against Schlitt, which you mentioned in the session of the Reichstag,
was quashed within 10 days by sentence of the Reich Supreme Court.
Schlitt was sentenced to death and executed at once.” (See Doc. NG-102,
Pros. Ex. 75, reproduced in sec. V C 2 a.)
[234] Dr. Escher acted as a defense lawyer for a number of accused
persons during the Nazi regime and executed a number of affidavits
concerning his experiences which were introduced as exhibits by the
prosecution. Extracts from Dr. Escher’s cross-examination concerning
his affidavit on the nullity plea appear immediately below.
[235] This decree is reproduced in part immediately above.
[236] Complete testimony is recorded in mimeographed transcript 23 May
1947, pages 3628–3641.
[237] Reproduced in part just above.
[238] Tr. 6885–6886, (12 Aug 1947). Further extracts from the testimony
of defendant Rothaug are reproduced earlier in this section, and below
in sections V D 2, V E, and V F.
[239] The letter to Hitler is reproduced immediately above.
[240] 1940 appears in the original, but obviously 1941 was intended.
[241] Testimony of defendant Schlegelberger concerning this document
(Tr. p. 4462) is reproduced above in section V B where Schlegelberger
discusses the question of the transfer of persons to the Gestapo.
[242] The newspaper clipping is reproduced on following page.
[243] Schaub was Hitler’s adjutant.
[244] Extracts from this document were also submitted as Document
Petersen 2, Petersen Exhibit 5.
[245] This extract is taken from the speech as reported in the
“Voelkischer Beobachter,” South German Edition, page 3, for 27 April
1942.
[246] In a unanimous decision on the same day as this speech, the
Reichstag granted Hitler power to take action “without being bound
by existing legal regulations” and “regardless of so-called well
established right.” The Reichstag decision is reproduced on page 204 as
a part of Document NG-715, Prosecution Exhibit 112.
[247] Excerpts from parts of this correspondence not reproduced in this
exhibit are quoted in the extracts from Schlegelberger’s testimony
reproduced at the end of this section.
[248] Pertinent parts of Hitler’s speech are contained in Document
NG-752, Prosecution Exhibit 24, reproduced immediately above.
[249] See section V C 1 b, “New devices to change final court
decisions--extraordinary objection and nullity plea,” for further
information concerning this subject.
[250] Not reproduced herein. This letter transmitted Schlegelberger’s
letter to Hitler and the decree on right of confirmation, both
reproduced immediately above.
[251] The decision of the Greater German Reichstag, 26 April 1942,
promulgating Hitler’s authority to act “without being bound by existing
law,” is reproduced as part of Document NG-715, Prosecution Exhibit
112, on page 204.
[252] On 26 April 1942, Hitler made a speech to the Reichstag, which
discussed, among other things, the role of persons concerned with the
administration of justice. Extracts from this speech (NG-752, Pros. Ex.
24) are reproduced earlier in this section. Concerning Hitler’s speech,
see also the letter of 7 July 1942 from the President of the Court of
Appeal in Hamm to the defendant Schlegelberger (NG-395, Pros. Ex. 74)
reproduced later in this section.
[253] Concerning the treatment of so-called “asocial elements,” see
Thierack’s memorandum on decisions made in conference with Himmler on
18 September 1942 (654-PS, Pros. Ex. 39), reproduced in section V C 3
a, and Crohne’s notes on a conference of 9 October 1942 (662-PS, Pros.
Ex. 263), reproduced in section V D 2.
[254] Numerous persons have stated that Hitler died in the air-raid
shelters under the garden of the Reich Chancellery just before
Germany’s unconditional surrender to the Allies in 1945.
[255] Thierack became Reich Minister of Justice in August 1942. From
March 1941 until Thierack’s appointment, the defendant Schlegelberger
had been Acting Reich Minister of Justice.
[256] Further extracts from the testimony of defendant Schlegelberger
are reproduced above in sections IV E and V B, and below in sections V
D 2, V D 3 and V E.
[257] These documents are reproduced in this section with the exception
of Document NG-505, Prosecution Exhibit 71, which is reproduced below
in section V D 2. It is a letter signed by defendant Schlegelberger
concerning “mild sentences against Poles,” dated 24 July 1941.
[258] Reproduced above in this section.
[259] For testimony of defendant Schlegelberger on the general question
of transfer of persons to the police, see extracts from his testimony
reproduced in section V B.
[260] Not to be mistaken for Martin Bormann, chief of the Party
Chancellery, whose name appears in a number of the contemporaneous
documents reproduced herein.
[261] Cf. Rothenberger’s “Reflections on a National Socialist Judicial
Reform,” Document NG-075, Prosecution Exhibit 27, reproduced above.
[262] Not to be confused with The Enabling Act of 24 March 1933
reproduced on page 163 (Doc. NG-715, Pros. Ex. 112).
[263] Other extracts from the testimony of the defendant Rothenberger
appear in sections V C 1 a, V C 3 a and V D 2.
[264] Reproduced earlier in this section.
[265] See the extracts from the testimony of defendant Rothenberger
reproduced in section V C 1 a.
[266] Earlier in his direct examination the defendant Rothenberger
had testified--“In 1929 I was in England for about 8 months. There
I studied the organization and structure of the English courts, the
position of the English judges, the positions of the masters and the
registrars, and the relations of the barristers and solicitors to the
court. I studied these in detail. I worked at the high court of justice
with a barrister and with a solicitor. * * *” (Tr. p. 5331).
[267] Reproduced in section C 2 b, above.
[268] Reference is made to Rothenberger’s “Reflections on a National
Socialist Judicial Reform,” (Doc. NG-075, Pros. Ex. 27), reproduced at
the beginning of this section.
[269] Extracts from this speech as reported in the “Voelkischer
Beobachter” are reproduced in section V C 2 a (Doc. NG-752, Pros. Ex.
24).
[270] Reich Minister Thierack’s minutes concerning this conference are
reproduced immediately below (Doc. 654-PS, Pros. Ex. 39).
[271] See the testimony of defendant Rothenberger concerning this
notation and Thierack’s minutes of the meeting, reproduced later in
this section.
[272] Thierack wrote a letter to Bormann on this subject on 13
October 1942, entitled “Administration of Criminal Justice against
Poles, Russians, Jews, and Gypsies.” (See Doc. NG-558, Pros. Ex. 143,
reproduced in section V D 2.)
[273] Kuemmerlein was Thierack’s adjutant.
[274] SS General Otto Ohlendorf was commanding officer of Einsatzgruppe
D, one of the special task forces assigned to exterminate “undesirable
elements” in the East. He was also chief of Office III of the Reich
Security Main Office (RSHA) from 1939–1943. Ohlendorf and a number of
his codefendants were sentenced to death in the Einsatzgruppen Case
(United States _vs._ Otto Ohlendorf, et al., Case 9, vol. IV, this
series).
[275] This document is referred to in the testimony of defendant
Schlegelberger, reproduced in section IV E.
[276] The IMT in its judgment found Gauleiter to be within the group
of persons of the Leadership Corps of the Nazi Party declared by the
Tribunal to be criminal. See Trial of the Major War Criminals, op.
cit., volume I, pages 257–262.
[277] Further extracts from the testimony of defendant Rothenberger are
reproduced in sections V C 1 a, V C 2 b, and V D 2.
[278] Document NG-059, Prosecution Exhibit 38, and Document 654-PS,
Prosecution Exhibit 39, are reproduced above in this section.
[279] Reference is made to Rothenberger’s “Reflections on a National
Socialist Judicial Reform,” (NG-075, Pros. Ex. 27), reproduced at the
beginning of section V C 2 b.
[280] Reproduced in section V C 2 a. It is a situation report of 4 July
1941 from defendant Rothenberger to defendant Schlegelberger.
[281] Document 654-PS, Prosecution Exhibit 39, reproduced earlier in
this section.
[282] Prosecution Exhibit 38, the first document reproduced in this
section.
[283] Document 648-PS, Prosecution Exhibit 264, reproduced in section V
B.
[284] Document 701-PS, Prosecution Exhibit 268, reproduced in section V
B.
[285] Document NG-558, Prosecution Exhibit 143, reproduced in section V
D 2.
[286] This section of the document discusses the interpretation of the
“Decree against Public Enemies,” 5 September 1939, reproduced as a part
of Document NG-715, Prosecution Exhibit 112, on page 188.
[287] This announcement was taken from “Ordinances, Regulations,
Directives,” 1942, (vol. II, p. 377 ff.), issued by the Nazi Party
Chancellery and published by the Central Publishing Office of the
NSDAP, Frz. Eher Successor, G.m.b.H., Munich.
[288] The technical German term for this type of letter was
“Lenkungsbrief” (“guidance letter” or “directing letter”). They
differed from the “Judges’ Letters” of Thierack insofar as they were
not circulated generally but rather addressed to specific courts. See
the extracts from the testimony of defendant Klemm reproduced later in
this section for discussion of these letters.
[289] A list of 28 more cases follows.
[290] This is the abbreviated designation for the “Decree concerning
special criminal law in time of war and special emergency,” signed on
17 August 1938 but not promulgated until 26 August 1939. The pertinent
provisions of article 5 of this law, which define the crime of
“undermining the German military efficiency” are reproduced as a part
of Document NG-715, Prosecution Exhibit 112, on page 184.
[291] Further extracts from the testimony of defendant Klemm are
reproduced in sections V C 1 a, V C 3 d, V D 2, and V F.
[292] Klemm and his counsel divided Klemm’s direct examination
principally into four phases of activity during the Hitler regime.
Klemm testified that the first phase included two different
assignments. From 1933 until March 1935, he was personal Referent and
adjutant to Thierack who was at that time, Minister of Justice for
Saxony. From March 1935 until he was conscripted as a soldier, Klemm
testified that he was an official in Department III (later Department
IV) of the Reich Ministry of Justice in Berlin. He testified that here
he reached the rank of ministerial counsellor and acted as liaison
officer between the Ministry and the supreme leadership of the SA
(Storm Troops) of the Nazi Party. The second phase, Klemm testified,
was an assignment on the staff of the German civilian administration
in the Netherlands from July 1940 to March 1941, where he introduced
German penal administration for German citizens in Holland and acted
as liaison between Reich Commissioner Seyss-Inquart and the Dutch
administration of justice. Klemm testified that the third phase was
from 17 March 1941 to January 1944. During this period he was on the
staff of the deputy of the Fuehrer (Rudolf Hess, until Hess flew to
Scotland on 10 May 1941) and then on the staff of the Party Chancellery
(which was created with Martin Bormann as its chief after Hess’ flight
to England). Here Klemm was the chief of Group III-C, administration of
justice, of the Party Chancellery. (See Klemm’s testimony reproduced in
section V D 2.) Klemm testified that the fourth and last phase began
when in January 1944, Thierack, at that time Reich Minister of Justice,
had him appointed Under Secretary in the Reich Ministry of Justice
as successor to defendant Rothenberger. (See the extracts from the
testimony of defendant Rothenberger reproduced in section V C 3 a.) In
1944 and early 1945, Klemm resided in Thierack’s house in Berlin.
[293] This is a Judge’s Letter, issued for March and April 1944. It was
entitled “Plunderers and public enemies during air raids,” and contains
26 case histories with comments by the Reich Minister of Justice. It is
not reproduced herein.
[294] Guidance letters of 5 July 1944 and of 1 March 1945 reproduced
earlier in this section.
[295] Mr. LaFollette, Deputy Chief Counsel, stated the following
concerning the prosecution’s purpose in offering this document in
evidence: “I briefly stated this morning with reference to the other
brief [Judges’ Letters] and to this brief [Lawyers’ Letter] that the
prosecution offers them as evidence for the purpose of showing that
there was a direct controlled judiciary and bar. We are not offering
these documents as evidence of any particular act contained therein,
but since we offer them, we are to some extent bound by them and our
purpose of offering them is to prove there was a connection” (Tr. p.
412). Mr. LaFollette also stated that this was the only Lawyers’ Letter
known to the prosecution.
[296] General Warlimont was convicted for his participation in the
“Terror Flier” program in the High Command Case, United States vs.
Wilhelm von Leeb, et al., Case 12, volumes X and XI. Extracts from his
testimony on this question are reproduced in section VII C 5, volume X,
this series.
[297] Kaltenbrunner was appointed chief of the Security Police and SD
and head of the Reich Security Main Office (RSHA) on 30 January 1943.
He was sentenced to death by the International Military Tribunal. See
Trial of the Major War Criminals, op. cit., volume I, page 365.
[298] Karl Ritter was ambassador for special assignments in the
German Foreign Office from 1939–1945, and liaison officer between
von Ribbentrop, the Foreign Minister, and Keitel, the Chief of the
High Command of the Armed Forces (OKW). Ritter was a defendant in the
Ministries Case, United States _vs._ Ernst von Weizsaecker, et
al., Case 11, volumes XII-XIV, this series.
[299] “Special treatment by the SD” generally meant killing of
the persons in question by the Security Service. This subject is
extensively treated in the High Command Case, United States _vs._
Wilhelm von Leeb, et al., Case 12, volumes X and XI, this series.
[300] Concerning the scope of the physical distribution of this
circular, see the discussion in the judgment of the IMT concerning “The
Leadership Corps of the Nazi Party.” Under the heading “Structure and
component parts,” the IMT stated that “The Kreisleiter were the lowest
members of the Party hierarchy who were full-time paid employees”
(Trial of the Major War Criminals, op. cit., vol. I, p. 257).
[301] Helmuth Friedrichs, Chief of the Division II, the party-political
division, of the Nazi Party Chancellery.
[302] The circular letter, Document NG-364, Prosecution Exhibit 108, is
reproduced above in this section.
[303] Complete testimony is recorded in the mimeographed transcript, 22
September 1947, pages 9302–9315.
[304] The actual directive of Thierack was not found or introduced in
evidence. However, see Thierack’s handwritten note on Document 635-PS,
Prosecution Exhibit 109, reproduced immediately above.
[305] Ludwig Kluettgen was tried and sentenced to death by a General
Military Government Court at Dachau, Germany, 11 and 12 August 1947.
His execution was carried out on 29 October 1948.
[306] Further extracts from the testimony of the defendant Klemm are
reproduced above in sections V C 1 a and V C 3 b, and below in sections
V D 2 and V F.
[307] These documents are reproduced earlier in this section.
[308] At the time the defendant Klemm was Under Secretary in the Reich
Ministry of Justice.
[309] See Klemm Document 68a, Klemm Exhibit 68a, the first document
reproduced in this section.
[310] Translation of entire document appears in Nazi Conspiracy and
Aggression, (U.S. Government Printing Office, Washington, 1946) volume
IV, pages 186–189.
[311] These documents are reproduced above in this section.
[312] The first part of this report on the conference is reproduced in
section B. It dealt with attacks on judicial actions in the official
SS magazine and questions of prosecuting those who committed criminal
offenses during the widespread violence against Jews during “Crystal
Week,” 9–11 November 1938.
[313] Document is not signed.
[314] Paragraph (5) is not included in original document.
[315] This ordinance was promulgated in the 1938 Reichsgesetzblatt,
part I, page 1044. It provided that beginning 1 January 1939, male Jews
must add “Israel” and female Jews “Sara” as their first or middle names
unless they already used such names. This provision applied to all
German Jews but not to Jews in Austria or Jews of foreign nationality.
The aim was to identify Jewish persons as Jews by their names.
[316] At this time the Reich Minister of the Interior was Frick and
the Fuehrer’s Deputy was Hess. Both were tried in Nuernberg before the
International Military Tribunal.
[317] Only the third draft (_c_) is reproduced herein.
[318] The text of the decree of 21 March 1933 is reproduced on page 218.
[319] Document 1393-PS, Prosecution Exhibit 508, reproduced above in
section IV B.
[320] Reproduced in part as a part of Document NG-715, Prosecution
Exhibit 112, on page 182.
[321] Reproduced as a part of Document NG-715, Prosecution Exhibit 112,
on page 185.
[322] Ibid., p. 187.
[323] Ibid., p. 188.
[324] Reproduced in part as a part of Doc. NG-715, Pros. Ex. 112, on p.
192.
[325] Ibid., p. 193.
[326] Reproduced as a part of Doc. NG-715, Pros. Ex. 112, on p. 218.
[327] Part of the background of this decree is shown by the letter of
defendant Schlegelberger to the Reich Minister of the Interior and to
the Fuehrer’s deputy of 3 February 1940, which transmitted a proposed
draft for this decree (NG-880, Pros. Ex. 459) reproduced in part
earlier in this section.
[328] Articles I and III of this decree were omitted from the document
as offered in evidence by defense counsel. Article I is entitled,
“Introduction of Reich Legal Regulations” and lists a large number of
Reich laws most of which are contained in article 1 of the proposed
draft of the Reich Ministry of Justice (NG-880, Pros. Ex. 459)
reproduced in part earlier in this section.
[329] Document Schlegelberger 60, Schlegelberger Exhibit 26, reproduced
in part earlier in this section.
[330] Schlegelberger’s draft (NG-331, Pros. Ex. 343) is reproduced
following this letter.
[331] Defendant Schlegelberger testified concerning this document and
his draft of a proposed ordinance (NG-331, Pros. Ex. 343, immediately
following). The pertinent extracts from Schlegelberger’s testimony are
reproduced near the end of this section. The decree ultimately issued
by the Ministerial Council for the Defense of the Reich was dated 4
December 1941. It is reproduced on page 632.
[332] The transmittal letter from Schlegelberger to Lammers (NG-144,
Pros. Ex. 199) appears immediately above. File notes of the Reich
Chancellery concerning Schlegelberger’s draft (NG-130, Pros. Ex. 200)
are reproduced just below.
[333] Document Schlegelberger 60, Schlegelberger Ex. 26, reproduced
earlier in this section.
[334] This draft by defendant Schlegelberger (NG-331, Pros. Ex. 343) is
reproduced immediately above.
[335] Schlegelberger’s explanatory letter of 17 April 1941 (NG-144,
Pros. Ex. 199) is reproduced above in this section.
[336] Hans Frank, Governor General of Poland, was a defendant before
the International Military Tribunal. See Trial of the Major War
Criminals, op. cit., volumes I-XLII.
[337] Words denoting colors are explained in the testimony of defendant
Klemm on pp. 589 ff.
[338] Document NG-144, Prosecution Exhibit 199, reproduced earlier in
this section.
[339] The enclosure was not a part of this document as offered in
evidence.
[340] The text of the Reich Citizenship Law is reproduced on page 180.
[341] Id.
[342] Document Schlegelberger 60, Schlegelberger Exhibit 26, reproduced
in part above in this section.
[343] Stuckart was a defendant in the Ministries Case (United States
_vs._ Ernst von Weizsaecker, et al., Vols. XII-XIV, this series).
[344] On the same day, 31 May 1941, the three persons signing this
decree also signed a “second decree for the execution of the Law
for the Protection of German Blood and Honor,” which is reproduced
immediately below.
[345] Reproduced as a part of Document NG-715, Prosecution Exhibit 112,
on page 188.
[346] This circular letter was discussed during the direct examination
of defendant Schlegelberger in connection with a number of other
documents reproduced above in section C 2 a.
[347] A supplementary decree of 31 January 1942, signed by defendant
Schlegelberger and Dr. Pfundner of the Reich Ministry of Interior, is
reproduced later in this section (NG-665, Pros. Ex. 346).
[348] Document Schlegelberger 60, Schlegelberger Exhibit 26, reproduced
earlier in this section.
[349] This article was published in the periodical “German Justice
[Deutsche Justiz], Administration of Justice and Judicial Policy,”
104th year, Edition A, Number 2, Berlin, 9 January 1942, (p. 25 ff.).
[350] Proceedings started by the injured in order to force the public
prosecutor to lodge an indictment.
[351] This decree is reproduced as a part of Document NG-715,
Prosecution Exhibit 112, on page 632.
[352] Under German law, “Armenrecht,” or the benefits of the _forma
pauperis_, are to be granted to plaintiffs or defendants who are
destitute. The benefits consist, principally, of the exemption from
court fees and the assignment of an _ex officio_ lawyer, free of
cost, where representation by counsel is required by law.
[353] Of the seven persons to whose attention the copies of this letter
were sent, two were tried in Nuernberg--Dr. Stuckart in the Ministries
Case (United States _vs._ Ernst von Weizsaecker, et al., vols.
XII-XIV, this series); and SS General Hofmann in the RuSHA Case (United
States _vs._ Ulrich Greifelt, et al., vols. IV-V, this series).
The activities of Luther, Under Secretary in the Foreign Office, were
often brought into issue in the Ministries Case.
[354] First degree presumably those with two non-Aryan grandparents and
second degree with only one.
[355] Julius Streicher, editor of “Der Stuermer” and Gauleiter of
Franconia, the province in which Nuernberg is located, was sentenced to
death by the International Military Tribunal.
[356] This is one of a number of opinions and sentences by
extraordinary German courts which were received in evidence. In some of
these cases one of the defendants sat as presiding judge or as a member
of the court. In some the defendant Lautz or one of his representatives
acted as prosecutor. For an opinion and sentence of the Nuernberg
Special Court in which the defendant Oeschey presided, see the Kaminska
case, decided on 29 October 1943 (NG-457, Pros. Ex. 201), reproduced
later in this section.
[357] “Law for the Protection of German Blood and Honor,” 15 September
1935, one of the two original Nuernberg laws, is reproduced on page 180
(NG-715, Pros. Ex. 112).
[358] See Document NG-129, Prosecution Exhibit 355, reproduced
immediately above.
[359] Reproduced as a part of Document NG-715, Prosecution Exhibit 112,
on page 632.
[360] This supplementary decree, signed by defendant Schlegelberger and
Dr. Pfundner, is reproduced earlier in this section (NG-665, Pros. Ex.
346).
[361] In discussing this subject with Himmler, the Reich Leader SS, on
18 September 1942, Thierack used the words “special treatment at the
hands of the police,” and “delivery of asocial elements * * * to the
Reich Leader SS to be worked to death.” See Thierack’s memorandum of
his conference with Himmler, Document 654-PS, Prosecution Exhibit 39,
reproduced in section V C 3 a.
[362] Not counting the small number of sentences on the basis of former
Polish, Austrian, or Czech law, as well as the decrees of the Reich
Protector of Bohemia and Moravia.
[363] Not reproduced herein.
[364] Reproduced at the end of this document.
[365] It will be noted that the statistics do not include persons
_outside_ the Greater German Reich, for example, in the Government
General.
[366] Including dual punishment. Compare also annotation 1 of chart 1.
[Chart 1 is not reproduced herein.]
[367] Sentenced by virtue of the Penal Ordinance for Poles, dated 12
April 1941.
[368] Selections from the correspondence of various Reich authorities
concerning the drafting of this law are reproduced immediately below in
Document NG-151, Prosecution Exhibit 204.
[369] Reproduced as a part of Document NG-715, Prosecution Exhibit 112,
on page 632.
[370] The thirteenth regulation under the Reich Citizenship Law, dated
1 July 1943 (NG-715, Pros. Ex. 112), is reproduced immediately above.
[371] The German word “Rechtsmittel” is a technical term, meaning
“writs” (such as writ of appeal, writ of certiorari, writ asking
for a revision) which aims at changing a decision of a court, be
it a judgment or an interlocutory ruling. In the present case, the
term “Rechtsmittel” was usually translated, “legal rights” or “legal
remedies.”
[372] The letter of 12 August 1942, with enclosed draft, of the
Goebbels ministry, was not a part of the document introduced in
evidence.
[373] This letter is reproduced immediately below.
[374] By this time, measures for the “final solution” of the Jewish
question were well under way. See, for example, the following
contemporaneous documents reproduced earlier in this volume: 654-PS,
Prosecution Exhibit 39 (sec. V C 3 a); 648-PS, Prosecution Exhibit 264
(sec. V B); and NG-558, Prosecution Exhibit 143, reproduced previously
in this section. See also the materials contained in the volumes on the
Pohl Case, United States _vs._ Oswald Pohl, et al., Volume V, this
series, and the Ministries Case, United States _vs._ Ernst von
Weizsaecker, et al., Volumes XII-XIV, this series.
[375] The decree of 5 August 1943 was not with the copy of the document
introduced in evidence.
[376] Dr. Vollmer was a Ministerialdirektor in the Reich Ministry
of Justice and chief of division IV--penal jurisdiction and penal
legislation.
[377] For an opinion and judgment of the Nuernberg Special Court, with
defendant Rothaug presiding, see Document NG-154, Prosecution Exhibit
152, reproduced earlier in this section.
[378] The testimony of defendant Oeschey concerning this case is
reproduced subsequently in this section.
[379] Dr. Franz Gros was called as a prosecution witness concerning
this case. His testimony, none of which is reproduced herein, is
recorded in the mimeographed transcript (30 April 1947), pages
2826–2882.
[380] Dr. Theodor Pfaff was called as a prosecution witness concerning
this case. His testimony, none of which is reproduced herein, is
recorded in the mimeographed transcript (27 May 1947), pages 3642–3650.
[381] The words which appear italicized and in parentheses were crossed
out in the original.
[382] The proposed insert appears at the end of the document.
[383] Further extracts from the testimony of the defendant
Schlegelberger are reproduced above in sections IV E, V B, and V C 2 a;
and below in sections V D 3 and V E.
[384] The reference is to the “Decree concerning the Administration
of Penal Justice against Poles and Jews in the Incorporated Eastern
Territories,” reproduced on page 632 (NG-715, Pros. Ex. 112).
[385] Document NG-219, Prosecution Exhibit 42, reproduced above in
section C 3 a.
[386] Document Schlegelberger 79, Schlegelberger Exhibit 72, was a
law of 25 March 1939 amending the German Civil Service Law. Document
Schlegelberger 80, Schlegelberger Exhibit 73, was the third law
amending the German Civil Service Law of 21 October 1941, neither of
which are reproduced.
[387] Reproduced earlier in this subsection.
[388] For contemporaneous documents concerning labor camps in
German-occupied Poland, see the Pohl Case, United States _vs._
Oswald Pohl, et al., Volume V, this series.
[389] Document NG-151, Prosecution Exhibit 204 is reproduced previously
in this section.
[390] Schlegelberger refers to his letter of 13 August 1942 to the
Reich Minister of Public Enlightenment and Propaganda, Dr. Goebbels,
making specific proposals for the wording of the decree. This letter is
reproduced earlier in this section as part of a lengthy correspondence
on the matter (Doc. NG-151, Pros. Ex. 204).
[391] Schlegelberger refers to decisions taken by Thierack after
consultations with Reich Leader SS Himmler on 18 September 1942. See
Thierack’s own memorandum of this conference (654-PS, Pros. Ex. 39)
reproduced in section C 3 a, and Thierack’s letter to Bormann of 13
October 1942 (NG-558, Pros. Ex. 143) reproduced earlier in this section.
[392] Reproduced earlier in this section.
[393] The reference is to a provision in German law whereby a person
who has been granted the benefits of the _forma pauperis_ but who,
later on, ceases to be poor, must pay the court and lawyer’s fees from
which he had been exempted.
[394] Document NG-880, Prosecution Exhibit 459, is reproduced earlier
in this section.
[395] Document Schlegelberger 60, later received in evidence as
Schlegelberger Defense Exhibit 26, is reproduced earlier in this
section.
[396] Here defense counsel makes two erroneous references, as both
the contemporaneous documents and Schlegelberger’s ensuing testimony
show. The pertinent penal ordinance concerning Poles and Jews was
promulgated on 4 December 1941, and it was introduced in evidence
as part of Document NG-715, Prosecution Exhibit 112, reproduced on
page 632. On the other hand, Prosecution Exhibit 343, which defense
counsel mentions, is a draft for a penal ordinance on Poles and Jews
by defendant Schlegelberger. He transmitted this draft to the Reich
Chancellery on 17 April 1941 with a long letter of explanation (NG-144,
Pros. Ex. 199). Both the transmittal letter by Schlegelberger and the
proposed draft are reproduced earlier in this section, and both are
discussed in the following testimony by the defendant.
[397] Document NG-227, Prosecution Exhibit 341, is not reproduced
herein. It contains, among other items, a note prepared in the Reich
Ministry of Justice, dated 26 November 1940, stating that “the Deputy
of the Fuehrer [Rudolf Hess] thinks it best to rescind the application
of the German Penal Code in the new eastern provinces and to create a
penal code a special dominating principle of which must be to deter
by fear and there must be a possibility of pronouncing a sentence of
corporal punishment. The law of criminal procedure must not allow for
obstruction; here the deputy of the Fuehrer is in favor of police
courts martial rather than law courts.”
[398] This draft (NG-331, Pros. Ex. 343) is reproduced earlier in
this section just following Schlegelberger’s letter of 17 April 1941
(NG-144, Pros. Ex. 199) transmitting the draft to Lammers, Chief of the
Reich Chancellery.
[399] Document NG-144, Prosecution Exhibit 199, dated 17 April 1941,
reproduced earlier in this section.
[400] Decree concerning the administration of penal justice against
Poles and Jews, 4 December 1941 (NG-715, Pros. Ex. 112), reproduced on
page 632.
[401] Extracts from this article were offered in evidence as Document
Schlegelberger 61, Schlegelberger Exhibit 27, reproduced earlier in
this section.
[402] This is an undated table entitled “Death Sentences.” It lists
115 persons delivered to jail between 24 April 1942 and 1 September
1944, all having been sentenced by the Special Court in Stuttgart.
However, in a column headed “Execution,” the table shows that five of
the cases were either sentences for a term of years or possibly cases
where death sentences were changed to imprisonment for a term of years.
The entry under the heading “Execution” for the two cases mentioned by
Schlegelberger are for Pitra, “8 years’ prison camp” and Wozniak, “5
years’ prison camp, beginning September 1942.”
[403] Reference is made to article I of the Supplementary Decree
concerning the Administration of Penal Justice against Poles and
Jews in the Incorporated Eastern Territories, a decree signed by the
defendant Schlegelberger and Dr. Pfundner. This decree (NG-665, Pros.
Ex. 346) is reproduced earlier in this section.
[404] Reproduced earlier in this section.
[405] The two original Nuernberg laws, the Reich Citizenship Law
and the Law for the Protection of German Blood and Honor, were both
announced at Nuernberg on 15 September 1935. The second law is
reproduced as a part of Document NG-715, Prosecution Exhibit 112, on
page 180.
[406] This document is reproduced earlier in this section.
[407] Other extracts from the testimony of the defendant Klemm are
reproduced above in sections V C 1 a, V C 3 b, V C 3 d, and below in
section V F.
[408] Concerning the earlier phases of Klemm’s activities, see the
footnote appearing at the beginning of the extracts from Klemm’s
testimony which are reproduced above in section V C 3 b. There was
still a fourth phase to Klemm’s activities, for in January 1944 he was
appointed Under Secretary in the Reich Ministry of Justice.
[409] Hess landed in Scotland on 10 May 1941.
[410] 1933 Reichsgesetzblatt, 1 December 1933, part I, page 1016.
[411] Reproduced above in section C 3 d.
[412] Reproduced above in this section.
[413] Reproduced above in section C 2 a.
[414] Reproduced below in subsection E.
[415] Reproduced above in this section.
[416] Circular letter of 10 March 1944, reproduced above in this
section.
[417] Reproduced above in this section.
[418] Further extracts from Rothaug’s testimony are reproduced in
sections V C 1 a, V C 1 b, V E, and V F.
[419] See the opinion and judgment in the Katzenberger case (NG-154,
Pros. Ex. 152), reproduced earlier in this section. Rothaug was
presiding judge in the Katzenberger case.
[420] These were all prosecution witnesses and none of their testimony
is reproduced herein. Their testimony is recorded in the mimeographed
transcript as follows: Dr. Karl Ferber, (31 Mar, 1, 3, 8 Apr 47), pages
1312–1315, 1319–1466, 1576–1630, 1665–1746; Irene Seiler, (26 Mar
1947), pages 1025–1057; and Armin Baur, (23 May 1947), pages 3598–3606.
[421] Extracts from the pertinent article in “Der Stuermer” concerning
the Katzenberger case are reproduced above in this section (NG-270,
Pros. Ex. 155).
[422] Further extracts from the testimony of defendant Rothenberger
appear in sections V C 1 a, V C 2 b, and V C 3 a.
[423] Reproduced in part in section V B. This document was also
introduced as Document, Rothenberger 3, Rothenberger Exhibit 3.
[424] Reproduced above in this section.
[425] Document NG-392, Prosecution Exhibit 373, is not reproduced
herein. It is a situation report of 5 January 1942 from defendant
Rothenberger to defendant Schlegelberger. The item of this report
concerning privileges of Jews in court proceedings is the following:
“VII. The lower courts do not grant to Jews the right to participate
in court proceedings in _forma pauperis_. The district court
suspended such a decision in one case. The refusal to grant this right
of participation in court proceedings in _forma pauperis_ is in
accordance with today’s legal thinking. But since a direct legal basis
is missing, the refusal is unsuitable. We therefore think it urgently
necessary that a legal regulation or order is given, on the basis of
which the rights of a pauper can be denied to a Jew.”
[426] Document NG-1106, Prosecution Exhibit 462, reproduced in part
above in this section.
[427] Reproduced above in this section.
[428] In January 1944, at Thierack’s request, defendant Klemm was made
Under Secretary.
[429] Document NG-1656, Prosecution Exhibit 535, above, earlier in this
section.
[430] Further testimony of defendant Rothenberger denying knowledge of
“final liquidation” measures of Poles and Jews is reproduced in section
V C 3 a.
[431] Complete testimony is recorded in the mimeographed transcript,
(9, 10, 11, 12, and 15 Sep 1947), pages 8510–8548, 8559–8805.
[432] From these official files only the opinion and sentence of the
Nuernberg Special Court has been reproduced herein. See Document
NG-457, Prosecution Exhibit 201, reproduced in part above in this
section.
[433] Actually only the first two of these three exhibits are
affidavits. Document NG-650, Prosecution Exhibit 229, is an affidavit
of Associate Judge Dr. Franz Gros. Document NG-635, Prosecution Exhibit
235, is an affidavit of Associate Judge Dr. Theodor Pfaff. Gros and
Pfaff were the two associate judges sitting in the Kaminska-Wdowen
case with defendant Oeschey. Both were called as witnesses before the
Tribunal. (Gros, 30 Apr 1947, tr. pp. 2826–2882) (Pfaff, 27 May 1947,
tr. pp. 3642–3650). The third mentioned exhibit, Document NG-2245,
Prosecution Exhibit 635, is a newspaper clipping of 25 August 1942.
None of these three exhibits and none of the testimony of Gros and
Pfaff is reproduced herein.
[434] Associate Judge Dr. Franz Gros. In addition, the second associate
judge was also heard. See footnote 2.
[435] Decree concerning the Administration of Penal Justice against
Poles and Jews in the Incorporated Eastern Territories, 4 December
1941, reproduced as a part of Document NG-715, Prosecution Exhibit 112,
on page 632.
[436] SG 256/1943 is the file number of the Kaminska-Wdowen case. See
Document NG-457, Prosecution Exhibit 201, reproduced in part above in
this section.
[437] Counsel refers to the two associate judges in the case, both of
whom testified in the justice trial.
[438] Reproduced as part of Document NG-715, Prosecution Exhibit 112,
on page 193.
[439] Decree of 5 September 1939, reproduced as part of Document
NG-715, Prosecution Exhibit 112, on page 188.
[440] Complete testimony is recorded in mimeographed transcript, 15 and
16 September 1947, pp. 8841–8962.
[441] Reproduced above in this section.
[442] Decree of 1 July 1943, reproduced as part of Document NG-715,
Prosecution Exhibit 112, on page 685.
[443] The defendant Altstoetter, as this time a Ministerial Director,
was Chief of Department VI of the Reich Ministry of Justice. Department
VI was concerned with civil law; commercial and economic law; racial
legislation; public administrative law and international law;
international law and international treaties; constitution of the
courts; and administration of civil law.
[444] The State in its capacity as carrier of rights and duties of a
financial-legal nature.
[445] Document NG-900, reproduced above in this section.
[446] Lieutenant General Rudolf Lehmann was head of the armed forces
legal section. Lehmann also had the title of judge advocate general
(Generaloberstabsrichter) and Ministerialdirektor. Lehmann, whose name
comes up in ensuing documents, was sentenced to 7 years’ imprisonment
by Tribunal V in the High Command Case. Extracts from Lehmann’s
testimony concerning the Night and Fog decree appear near the end of
this section and more lengthy testimony by Lehmann on the same and
related subjects appears in the materials on the High Command Case,
United States _vs._ Wilhelm von Leeb, et al., Volumes X-XI, this
series.
[447] This decree was the Night and Fog decree (1733-PS, Pros. Ex. 303)
reproduced immediately below.
[448] This implementation decree is contained as the enclosure to
Document 669-PS, Prosecution Exhibit 305 reproduced below after the
Night and Fog decree.
[449] Distribution appears at end of document.
[450] Sometimes referred to as Document 665-PS. See transcript, 21
April 1947, page 2440.
[451] Defendant Schlegelberger testified that he signed the proposed
executive order and that it was the same as the draft submitted in the
document book, i.e., the draft enclosed hereto. See extracts from the
testimony of defendant Schlegelberger reproduced later in this section.
[452] SS General Pohl, Chief of the SS Economic and Administrative Main
Office, and a number of his subordinates, were tried in the Pohl Case
(United States _vs._ Oswald Pohl, et al., Vol. V, this series).
[453] Request addition of case, as soon as available settled. [Signed]
Ebersberg 12 Sept.
[454] Document NG-232, Prosecution Exhibit 308, reproduced earlier in
this section.
[455] Goebel was president of the Essen Special Court and also held the
title of District Court Director.
[456] Items _a_ and _b_ crossed out in original document.
[457] Bracketed excerpt is part of handwritten note partially illegible
on document.
[458] The enclosures were not a part of the document received in
evidence.
[459] (in the case of Breslau as of 31 March 1944)
[460] This document was introduced in evidence during the
cross-examination of defendant von Ammon. See extracts from his
testimony reproduced at the end of this section.
[461] Complete testimony appears in the mimeographed transcript (23, 24
Apr. 47), pages 2586–2643.
[462] This affidavit is not reproduced herein.
[463] Extracts from the testimony of the defendant Schlegelberger have
been reproduced above in several sections, including IV E, V B, V C 2
A, V D 2, and V E.
[464] Reference is made to the draft contained in Document NG-077,
Prosecution Exhibit 306, a letter of 16 December 1941, from the Reich
Ministry of Justice. This document is reproduced earlier in this
section.
[465] Trial of the Major War Criminals, op. cit., volume I, page 232
and following.
[466] Special jurisdiction of the SS was established by a decree of
17 October 1939, entitled “Decree on Special Jurisdiction in Criminal
Proceedings against Members of the SS and Members of Police Formations
on Special Tasks.” This decree (Klemm 29, Klemm Ex. 29) is reproduced
in section IV B.
[467] Judge Harding refers to Article 1 which with other parts is
reproduced as Document Klemm 29, Klemm Ex. 29 on page 190.
[468] This decree is reproduced as a part of Document NG-715,
Prosecution Exhibit 112, on page 205.
[469] The entire testimony appears in the mimeographed transcript (1–4
Aug 1947), pages 6377–6473.
[470] Document NG-988, Prosecution Exhibit 510 consists of over
one hundred mimeographed pages, dealing with the organization of
Departments III, IV, V, and VI of the Reich Ministry of Justice. It is
not reproduced herein.
[471] Document NG-232, Prosecution Exhibit 308, reproduced above in
this section.
[472] See, for example, Document NG-205, Prosecution Exhibit 328, a
secret directive of 21 January 1944, reproduced above in this section.
[473] Document NG-077, Prosecution Exhibit 306, reproduced above in
this section.
[474] Document NG-232, Prosecution Exhibit 308, reproduced above in
this section.
[475] This exhibit is a draft dated 16 December 1941 which was later
published as an executory decree on 6 February 1942.
[476] Document NG-486, Prosecution Exhibit 337, not reproduced herein.
[477] The testimony of defendant Mettgenberg appears in the
mimeographed transcript (31 Jul–1 Aug 1947) pages 6235–6271; 6274–6362.
The testimony referred to is not reproduced herein.
[478] Document NG-205, Prosecution Exhibit 328, reproduced above in
this section.
[479] Document von Ammon 4, von Ammon Exhibit 2. This affidavit, except
for the parts quoted, is not reproduced herein.
[480] Document NG-269, Prosecution Exhibit 319, reproduced above in
this section.
[481] Document NG-255, Prosecution Exhibit 314, reproduced in part
above in this section. The report referred to here is not reproduced
herein.
[482] Extracts from the testimony of prosecution witness Lehmann are
reproduced above in this section.
[483] Document NG-232, Prosecution Exhibit 308, reproduced above in
this section.
[484] Document NG-255, Prosecution Exhibit 314, reproduced in part
above in this section. This letter referred to here is not reproduced
herein.
[485] Document NG-077, Prosecution Exhibit 306, reproduced above in
this section. Note entry on document indicating that it was dispatched.
[486] Document NG-253, Prosecution Exhibit 317, reproduced in part
above in this section.
[487] This note is a part of Document NG-253, Prosecution Exhibit 317,
reproduced above in this section.
[488] Document NG-486, Prosecution Exhibit 337, not reproduced herein.
[489] Roemer’s testimony appears in the mimeographed transcript (24 Apr
1947), pages 2652–2672.
[490] The testimony of defendant Lautz appears in the mimeographed
transcript (23–25, and 28 Jul 1947), pages 5761–5775; 5781–6054.
[491] Pastor Martin Niemoeller, Protestant clergyman in Berlin-Dahlen
at the time of his arrest.
[492] Robert Hecker was an official of Department V (which dealt with
the execution of court sentences). The chief of Department V was
defendant Engert. The entire testimony of prosecution witness Hecker is
recorded in the mimeographed transcript (18 Apr, 9 and 12 May, and 7
Jul 1947), pages 2363–2386, 3047–3083, 3111–3114, and 4823–4870.
[493] Document NG-737, an affidavit by Hecker, not reproduced herein.
[494] Document NG-1886, Prosecution Exhibit 546, reproduced above in
this section.
[495] This letter was written before the promulgation of the Decree
concerning the administration of penal justice against Poles and Jews
in the Incorporated Eastern Territories of 4 December 1941, reproduced
as a part of Document NG-715, Prosecution Exhibit 112, on page 632. The
first four sections of the decree also applied to Poles domiciled or
residing in Poland on 1 September 1939 “and who committed punishable
acts in any part of the German Reich other than the Incorporated
Eastern Territories.” (Sec. XIV.)
[496] GewVVO, abbreviation for “Verordnung gegen
Gewaltverbrecher”--Decree against Violent Criminals--dated 5 December
1939. Article 1 of this decree makes the death penalty mandatory for
acts of “armed violence” as defined therein. The decree is reproduced
as part of Document NG-715, Prosecution Exhibit 112, on page 193.
[497] VVO, abbreviation for “Verordnung gegen Volksschaedlinge”--Decree
against Public Enemies--dated 5 September 1939. Article 4 of this
decree makes the death sentence possible but not mandatory. The decree
is reproduced as part of Document NG-715, Prosecution Exhibit 112, on
page 188.
[498] Reference is made to the articles of the Reich Penal Code
defining treason. The provisions of this code concerning “high
treason” and “treason” were amended early in the Hitler regime by
the law of 24 April 1934, “amending provisions of criminal law and
criminal procedure.” This same law established the People’s Court with
competence in treason cases. Provisions of this law defining treason
are reproduced on page 169 as a part of Document NG-715, Prosecution
Exhibit 112, and the provisions establishing the People’s Court are
reproduced on page 23, as part of the same document. Article 91 of
the Reich Penal Code, as amended by the law of 24 April 1934 reads,
“(1) Whoever established contact with a foreign government or a person
acting for a foreign government with the intention of causing a war or
forcible measures against the Reich or other serious disadvantages to
the Reich, will be punished by death. (2) Whoever established contact
of the kind described in paragraph (1) with the intention of causing
serious disadvantages for a national of the Reich, will be punished
with hard labor for life or for not less than 5 years.”
[499] Article 2 of the Reich Penal Code, as amended by the “Law
Amending the Penal Code” of 28 June 1935, introduced the principle
of “creation of law by analogous application of penal laws,” and
declared punishable any act “which deserves punishment according to the
fundamental idea of a penal law or the sound sentiment of the people.”
Extracts from this amending law are reproduced on page 176, as part
of Document NG-715, Prosecution Exhibit 112. Article 91, paragraph
2, of the Reich Criminal (Penal) Code, as amended, established the
principle that intentional causing of “serious disadvantages for
a national of the Reich” in connection with a foreign government
was treasonable. This provision, however, did not go so far as to
declare that acts against “ethnic Germans of foreign nationality”
could constitute treason against Germany. Hence, the discussion of
Article 2 of the Reich Penal Code as amended with its provision for
punishment “according to the fundamental idea of a penal law or the
sound sentiment of the people” and the “creation of law by analogous
application of penal law.”
[500] This decree of 4 December 1941 is reproduced as part of Document
NG-715, Prosecution Exhibit 112, on page 632.
[501] Concerning the “nullity plea,” see section V C 1 b.
[502] The decree of 5 September 1939 is reproduced as part of Document
NG-715, Prosecution Exhibit 112, on page 188.
[503] The relevant provisions of this law are reproduced on page 231 as
part of Document NG-715, Prosecution Exhibit 112.
[504] The various articles of the Reich Penal Code mentioned in this
sentence are all contained in the law of 24 April 1934, amending
provisions of criminal law and criminal procedure. This law amended
numerous articles of the Reich Penal Code. It is reproduced as part of
Document NG-715, Prosecution Exhibit 112, on page 169.
[505] This decree, entitled “Decree concerning the Administration
of Penal Justice against Poles and Jews in the Incorporated Eastern
Territories,” is reproduced as part of Document NG-715, Prosecution
Exhibit 112, on page 632.
[506] Political organization founded by the Austrian Government in 1934
after the dissolution of the Social Democratic Party and the National
Socialist Party.
[507] Reference is made to the “Law on Insidious Acts against State and
Party, and for the Protection of Party Uniforms,” Document 1393-PS,
Prosecution Exhibit 508, reproduced in section IV-B.
[508] Reference is made to the “Decree concerning Special Criminal
Law in Wartime,” 17 August 1938, the relevant provisions of which are
reproduced on page 184, as part of Document NG-715, Prosecution Exhibit
112. Article 5 of this decree is entitled “Undermining of Military
Efficiency.”
[509] All italicized parts in this portion of the document are
handwritten in the original.
[510] Bracketed text is crossed out in original document.
[511] Concerning this document, see extracts from the testimony of
defendant Lautz reproduced below in this section.
[512] The first-mentioned law, Document 1393-PS, Prosecution Exhibit
508, is reproduced in section IV B, and extracts from the second
mentioned law, as a part of Document NG-715, Prosecution Exhibit 112,
on page 184. Article 2, paragraph 1 of the law of 20 December 1934
provides that “Whoever makes statements showing a malicious, inciting
or low-minded attitude toward leading personalities of the State or the
NSDAP, or about orders issued by them, or about institutions created
by them which are apt to undermine the confidence of the people in its
political leadership, shall be punished with imprisonment.” The decree
of 17 August 1938 on special criminal law in wartime established and
defined the new offense of “undermining of military efficiency” and
makes the death sentence mandatory. In view of the different penalty
under the two laws, the question of indicting a person who allegedly
made defeatist remarks under the one law or the other was most
significant.
[513] Concerning Judges’ Letters, see the materials in section V C 3 b.
[514] A town west of Smolensk where a mass grave of 10,000 Polish army
officers was found. See Trial of Major War Criminals, op. cit., volume
XXIII, page 426.
[515] The reference is to the act of 20 December 1934, which does not
provide for the death penalty.
[516] The reference is to the decree of 17 August 1938, which makes the
death penalty mandatory.
[517] Extracts from the testimony of defendant Schlegelberger have also
been reproduced in sections IV E, V B, V C 2 a, V D 2, and V D 3.
[518] Reproduced above in this section.
[519] Extracts from the testimony of defendant Lautz are also
reproduced in section C 1 b. His entire testimony is recorded in the
mimeographed transcript 23–25, 28 July 1947, pages 5761–5775; 5781–6054.
[520] Decree concerning special criminal law in time of war and special
emergency, 17 August 1938, reproduced in part as a part of Document
NG-715, Prosecution Exhibit 112, on page 184.
[521] Document NG-1474, Prosecution Exhibit 515, is not reproduced
herein. The cross-examination of Dr. Horst Guenther Franke concerning
this affidavit is recorded in the mimeographed transcript, 22 September
1947, pages 9265–9280. The affiant Dr. Franke was the official in the
Reich Ministry of Justice who succeeded defendant Joel in the fall of
1943 as chief of the ministry section dealing with crimes against war
economy.
[522] Document NG-510, Prosecution Exhibit 97, a decree of 8 March 1943
by Thierack further defining the jurisdiction of the People’s Court in
case of “subversive undermining of German military efficiency.” This
decree is not reproduced herein.
[523] Document NG-671, Prosecution Exhibit 220, reproduced in part
above.
[524] Prior to his assignment in the Reich Ministry of Justice,
defendant Rothaug had been presiding judge of the Nuernberg Special
Court.
[525] Document NG-659, Prosecution Exhibit 126, an affidavit of
defendant Lautz dated 17 January 1947, is not reproduced herein.
[526] Bruno Gruenwald appeared as a prosecution witness. His testimony
is recorded in the mimeographed transcript, 3 June 1947, pages
3879–3910.
[527] These exhibits are all reproduced herein in whole or in part.
Document NG-676, Prosecution Exhibit 178, is a letter of 5 July 1944
from the defendant Klemm to the president of the district court of
appeal and the attorney general in Stuttgart concerning cases of
defeatism (sec. V C 3 b); Document NG-627, Prosecution Exhibit 474,
is a letter of 1 March 1945 from defendant Klemm to the president of
the district court of appeal and the attorney general in Hamburg,
concerning dangerously lenient sentences (sec. V C 3 b); and Document
NG-674, Prosecution Exhibit 100, is a report of a conference held in
Weimar on 3 and 4 February 1944 concerning undermining morale and
malicious political acts (sec. V E).
[528] Document NG-685, Prosecution Exhibit 259, reproduced in part at
the beginning of this section.
[529] Document NG-595, Prosecution Exhibit 136, reproduced above.
[530] Reference is made to the law of 24 April 1934 “amending
provisions of criminal law and criminal procedure,” the pertinent
parts of which are reproduced on page 169 as part of Document NG-715,
Prosecution Exhibit 112. This law expanded the previously existing
concepts of treason and high treason.
[531] Report contained in Document NG-548, Prosecution Exhibit 347,
reproduced above in this section.
[532] Complete testimony is reproduced in the mimeographed transcript
(26–28 Aug 1947), pages 7649–7752, 7780–7901.
[533] Extracts from the official files in the Beck case are reproduced
above in this section.
[534] Presiding Judge Brand refers to defendant Barnickel’s letter of
30 July 1943 to the Reich Chief Prosecutor at the People’s Court in
which he enclosed the indictment in the Beck case. This is reproduced
earlier in this section as a part of Document NG-381, Prosecution
Exhibit 159.
[535] Other extracts from the testimony of defendant Rothaug appear in
sections V C 1 A, V C 1 B, V D 2, and V F.
[536] Extracts from the official files in the Lopata case are contained
in Document NG-337, Prosecution Exhibit 186, reproduced above in this
section. The defendant Rothaug was presiding judge of the Special Court
which sentenced Lopata to death upon a second trial in April 1942.
[537] At the first recess, the prosecution called Mr. Arnold
Buchthal, one of the prosecution’s research analysts, as an expert
witness concerning the translation and meaning of the disputed
words “Polnisches Untermenschentum.” Until 1939, Buchthal had lived
in Germany, Austria, and Switzerland; and German was his native
language. He testified that the literal translation of “Polnisches
Untermenschentum” was “Polish subhumanity;” that he had never heard
the expression “Untermenschentum” used in Germany before 1933; that
after 1933 the context in which the word was used was always political,
referring to Jews, Czechs, Poles, or Communists. On cross-examination,
Buchthal said that the word might have been used occasionally in the
technical language of the criminologist, but certainly not frequently.
(_Tr. 7471–7474._)
[538] For the decree establishing the nullity plea and other material
concerning its application, see section V C 1 b.
[539] Document 1393-PS, Prosecution Exhibit 508, reproduced in section
IV B.
[540] Reproduced as a part of Document NG-715, Prosecution Exhibit 112,
on page 160.
[541] This law of 20 December 1934, Document 1393-PS, Prosecution
Exhibit 508, is reproduced in section IV B.
[542] This document is discussed in extracts from the testimony of
defendant Klemm, reproduced below in this section.
[543] Entire testimony is recorded in the mimeographed transcript (9
May 1947) pages 3021–3046.
[544] The reference is to Article 130a of the Reich Penal Code,
which was inserted into the Code by the Law of 26 February 1876:
“Imprudent Discussion of State Affairs by Ministers of Religion
(Kanzelmissbrauch). 130a. A clergyman or other minister of religion
who in the exercise of his calling or on the occasion of such exercise
makes affairs of state a subject of his announcement or discussion
in a manner endangering public peace either before a crowd or before
several people assembled in a church or other place assigned for
religious meetings, shall be punished by imprisonment or confinement in
a fortress not to exceed 2 years. A similar punishment shall be imposed
upon a clergyman or minister of religion who, in the exercise of his
calling or on the occasion of such exercise, issues or distributes
writings in which affairs of state are made the subject of announcement
or discussion in a manner endangering public peace.”
[545] Further extracts from the testimony of defendant Rothaug appear
in sections V C 1 a, V C 1 b, V D 2, and V E.
[546] Dr. Karl Ferber’s testimony is recorded in the mimeographed
transcript (31 Mar., 1, 3, 8 Apr. 1947), pages 1312–1315, 1319–1466,
1576–1630, 1665–1746. Ferber was a district court director
(Landgerichtsdirektor) and associate judge of the Nuernberg Special
Court. He was called a prosecution witness. Ferber referred to the case
of a second Catholic Priest named Froehlich who had buried a Pole in
Roding (Upper Palatinate), mimeographed transcript, pages 1352–1354,
1743–1744.
[547] The text of this law, Document 1393-PS, Prosecution Exhibit 508,
is reproduced above in section IV B.
[548] Reference is made to Alfred Rosenberg who was tried and sentenced
to death by the International Military Tribunal. See Trial of the Major
War Criminals, _op. cit._, Volumes I-XLII.
[549] The text of article 130a of the Reich Penal Code is reproduced
in a footnote earlier in this section. The Insidious Acts Law of 20
December 1934, Document 1393-PS, Prosecution Exhibit 508, is reproduced
in section IV B.
[550] Further extracts from the testimony of the defendant Klemm appear
in sections V C 1 A, V C 3 B, V C 3 D, and V D 2.
[551] Reproduced above in this section.
[552] At this time the defendant Klemm was Under Secretary in the Reich
Ministry of Justice.
[553] Tr. pp. 10587–10604, 18 October 1947.
[554] Document NG-414, Prosecution Exhibit 252, has not been reproduced
in this volume because of its great length and because it has been
impossible, in view of space limitations, to include any considerable
amount of evidence concerning clemency matters--a topic frequently
in issue in the Justice Case. The document in question is 142 pages
in the original German and 162 pages in the English translation. It
consists of file notes of the Reich Ministry of Justice concerning
“Reports to the Minister of Justice,” “Reports to the Under Secretary”
(Staatssekretaer), and “Death Sentence Reports” for the following
dates: 24 and 27 January 1944; 10, 22, and 29 February 1944; 8, 17, and
29 March 1944; 5, 18, and 26 April 1944; 3, 12, and 31 May 1944; 2, 8,
16, 21, and 30 June 1944; 2 and 17 August 1944; 22 and 29 September
1944; 5, 12, 19, and 27 October 1944; 10, 16, and 29 November 1944;
7, 15, and 21 December 1944; and 4, 10, 17, and 24 January 1945. The
“Death Sentence Reports” list the names (usually only the family name)
of persons sentenced to death, dividing the death sentences into
“doubtful” and “clear cut” cases, and grouping the sentences mainly
under the following categories: “high treason cases,” “treason cases,”
and cases involving “undermining the military efficiency.” On the
reports a diagonal line was drawn indicating that the death sentence
was confirmed. For example, the list of 17 January 1945, mentioned
specifically by the defendant Klemm in his final statement, shows the
following diagonal lines in the category “high treason cases.” (For
typographical reasons, the diagonal lines have here been indicated
before the respective letter or figure, whereas on the original
document, the diagonal lines were drawn through them.)
/a. _doubtful_
Hauke Death
Ritter Death
Schellenberger Death
Giezelt Death
/b. _clear cut_
/1. Hoehn Death
Schultz Death
Seiffert Death
/2. Kroeger Death
Splenemann Death
Fuebinger Death
/3. Boecker Death
Kaess Death
/4. Luedtke Death
/5. Haitzmann Death
Bueschinger Death
Hauberger Death
The document shows that between 24 January 1944 and 24 January 1945,
death sentences of more than 2,500 persons were confirmed. The largest
number confirmed appears on the report of 22 September 1944, 128 cases;
and the smallest number appears on the report of 4 January 1945, 25
cases. The report for 17 January 1945, mentioned specifically by the
defendant Klemm, shows that 49 death sentences were confirmed.
[555] All the documents referred to are reproduced in the preface
portion of this volume and are not reproduced as a part of this
judgment. See Table of Contents.
[556] Text is reproduced in “The Axis in Defeat,” Department of State
Publication No. 2423 (Government Printing Office, Washington, D. C.),
pages 24 and 25.
[557] Ibid., pages 62 and 63.
[558] Ibid, page 10 et seq.
[559] Alwyn V. Freeman, “War Crimes by Enemy Nationals Administering
Justice in Occupied Territory,” The American Journal of International
Law, XLI, July 1947, 605.
[560] John H. E. Fried, “Transfer of Civilian Manpower from Occupied
Territory,” The American Journal of International Law, XL, April 1946,
326–327.
[561] Trial of the Major War Criminals, op. cit., judgment, volume I,
page 254.
[562] Ibid., p. 218.
[563] Ibid., p. 174.
[564] Ibid., p. 219.
[565] Herbert Wechsler, “The Issues of the Nuremberg Trial,” Political
Science Quarterly, LXII, No. 1, March 1947, 14.
[566] Hackworth, “Digest of International Law”, (Government Printing
Office, Washington, 1940), volume 1, pages 1–4.
[567] Hyde, “International Law”, (2d rev. ed., Boston, Little, Brown &
Co., 1945), volume 1, page 4.
[568] Lord Wright, “War Crimes under International Law,” The Law
Quarterly Review, LXII, January 1946, 51.
[569] Hyde, op. cit., page 2.
[570] Philip C. Jessup, “The Crime of Aggression and the Future of
International Law,” Political Science Quarterly, LXII (Mar 1947), No.
1, page 2, citing Journal of the United Nations, No. 58, Supp. A-A/P.
V./55, page 485.
[571] Lord Wright, op. cit., page 41.
[572] Trial of the Major War Criminals, op. cit., volume I, page 218.
[573] Hyde, op. cit., pages 16 and 17.
[574] Case 5, Volume VI, this series.
[575] Trial of the Major War Criminals, op. cit., volume I, pages 254
and 255.
[576] Ibid., p. 219.
[577] The Nuremberg Trial: “Landmark in Law”; Foreign Affairs, January
1947, pages 180 and 184.
[578] Maxwell-Fyfe, foreword to “The Nuremberg Trial” (London, Penguin
Books, 1947), by R. W. Cooper.
[579] Wechsler, op. cit., pages 23–25.
[580] Hyde, op. cit., volume III, page 2409.
[581] Ibid., pages 2409 and 2410.
[582] American Journal of International Law, Vol. 14 (1920), p. 117.
[583] Hyde, op. cit., page 2412.
[584] Ibid., page 2414.
[585] Ibid., volume I, pages 7 and 8.
[586] Ibid., p. 38.
[587] “Since the World War of 1914–1918, there has developed in many
quarters evidence of what might be called an international interest
and concern in relation to what was previously regarded as belonging
exclusively to the domestic affairs of the individual state; and with
that interest there has been manifest also an increasing readiness to
seek and find a connection between domestic abuses and the maintenance
of the general peace. See article XI of the Covenant of the League of
Nations, United States Treaty, volume III, 3339.” (Hyde, “International
Law,” 2d rev. ed., vol. I, pages 249–250.)
[588] Oppenheim, “International Law”, volume I, (3d ed.) (Longmans,
Green & Co., London, 1920), page 229.
[589] State Department Publication No. 9, pages 153 and 154.
[590] Norman Bentwich, “The League of Nations and Racial Persecution in
Germany,” Problems of Peace and War, XIX, (London, 1934), page 75 and
following.
[591] Ibid.
[592] President’s Message to Congress, 1904. “The Works of Theodore
Roosevelt, Presidential Addresses and State Papers”, (P. F. Collier &
Son, New York), volume III, pages 178 and 179.
[593] President’s Special Message of 11 April 1898. Hyde, op. cit.,
volume 1, page 259.
[594] J. Bluntschli, Professor of Law, Heidelberg University, in “Das
Moderne Voelkerrecht der Civilisierten Staaten,” (3d ed.) page 270
(1878). Professor Bluntschli was a Swiss national.
[595] Trial of the Major War Criminals, op. cit., volume III, page 92.
[596] Journal of the United Nations, No. 58, Supp. A-C/P. V./55, page
485; as cited in Political Science Quarterly (Mar 1947), volume LXII,
No. 1, page 3.
[597] Trial of the Major War Criminals, op. cit., judgment, volume I,
page 178.
[598] 1934 RGBl. I, p. 75.
[599] Law of 4 April 1933, 1933 RGBl. I, page 162.
[600] Law of 24 April 1934, 1934 RGBl. I, page 341. Most of the laws
and decrees mentioned herein are reproduced as parts of document
NG-715, Prosecution Exhibit 112. (See footnote on p. 231.)
[601] 1944 RGBl. I, p. 225.
[602] 1935 RGBl. I, p. 839.
[603] 1935 RGBl. I, p. 844, art. 267a.
[604] 1936 RGBl. I, p. 999.
[605] 1939 RGBl. I, p. 1455.
[606] Ibid., p. 1683.
[607] Ibid., p. 1679.
[608] 1939 RGBl. I, p. 2319.
[609] 1944 RGBl. I, p. 115.
[610] 1942 RGBl. I, p. 535.
[611] 1933 RGBl. I, p. 175.
[612] Ibid., p. 188.
[613] 1933 RGBl. I, p. 225.
[614] Ibid., p. 685.
[615] 1938 RGBl. I, p. 338.
[616] Ibid., p. 1580.
[617] 1939 RGBl. I, p. 864.
[618] 1942 RGBl. I, p. 722.
[619] This decree was also known as the “decree concerning the
administration of penal justice against Poles and Jews in the
Incorporated Eastern Territories.”
[620] Trials of the Major War Criminals, op. cit., judgment, volume I,
page 194.
[621] Ibid., p. 197.
[622] 1941 RGBl. I, p. 722.
[623] 1933 RGBl. I, p. 136.
[624] Ibid., p. 162.
[625] 1939 RGBl. I, p. 1683.
[626] 1939 RGBl. I, p. 1679.
[627] 1940 RGBl. I, p. 405.
[628] Id.
[629] 1941 RGBl. I, p. 759.
[630] Trial of the Major War Criminals, op. cit., volume I, page 179.
[631] 1934 RGBl. I, p. 341.
[632] 1939 RGBl. I, p. 752.
[633] Id.
[634] Ibid., p. 1841.
[635] 1940 RGBl. I, p. 754.
[636] 1933 RGBl. I, p. 136.
[637] 1944 RGBl. I, p. 339.
[638] 1934 RGBl. I, p. 91.
[639] [Article 1, 4, b] Law of 28 June 1935; 1935 RGBl. I, page 844.
[640] Ibid., article 4, 1, a.
[641] “German Criminal Procedure,” by Heinrich Henkel, (Hamburg 1943)
pages 440–442.
[642] 1945 RGBl. I, p. 30.
[643] 1942 RGBl. I, p. 475.
[644] Law of 28 June 1935; 1935 RGBl. I, p. 844.
[645] The three expressions “supreme justice,” “supreme law lord” and
“supreme magistrate” are three different translations of the German
term “Oberster Gerichtsherr.”
[646] Department of State Bulletin, 4 November 1939, page 458, cited in
Hyde’s International Law, Volume 1 (2d rev. ed.), page 391.
[647] “Legal Effects of War” (2d ed.) (Cambridge, 1940), footnote on
page 320.
[648] Trial of the Major War Criminals, op. cit., volume I, page 255.
[649] Ibid., p. 256.
[650] Ibid., p. 261.
[651] Ibid., pp. 267–268.
[652] Ibid., p. 273.
[653] Ibid., pp. 232–233.
[654] Ibid., p. 234.
[655] Ibid., p. 266.
[656] Trial of the Major War Criminals, op. cit., Volume I, page 266.
[657] Ibid., pp. 235–236.
[658] Ibid., pp. 222–223.
[659] Rosenberg, _Der Mythus des 20. Jahrhunderts_, (Munich 1935),
page 114 (1st Ed., 1930), cited in National Socialism, Department of
State Publication 1864 (U. S. Government Printing Office, Washington
1943), page 31.
[660] Ernst Kaltenbrunner, a defendant before the IMT, was sentenced to
death. See Trial of the Major War Criminals, op. cit., volume I, page
365.
[661] 1938 RGBl. I, p. 1581.
[662] Complete testimony of defense witness Hans Heinrich Schulz is
recorded in the mimeographed transcript, 25 September 1947. (Tr. pp.
9530–9552.)
[663] Complete testimony of defense witness Hans Heinrich Lammers is
recorded in the mimeographed transcript 22 July 1947, pages 5582–5620.
[664] Hyde, op. cit., volume III (2d rev. ed.), page 1714.
[665] Trial of the Major War Criminals, op. cit., volume I, pp. 234,
235, and 237.
[666] 1935 RGBl. I, page 844.
[667] This date is evidently a recording error, in as much as the
decrees mentioned were published in 1940 and 1941.
[668] General Warlimont was a defendant in the High Command Case
(United States _vs._ Wilhelm von Leeb, et al., Case 12, vols.
X-XI, this series).
[669] The reference is to the highest and higher leaders of the
National Socialist German Workers’ Party.
[670] Complete testimony of defense witness Hans Hartmann is recorded
in the mimeographed transcript, 17 September 1947, pages 8999–9068.
[671] Popular name for the decree against public enemies.
[672] Trial of the Major War Criminals, op. cit., volume I, page 273.
[673] Ibid.
[674] 1944 RGBl. I, page 339.
[675] Trials of the Major War Criminals, op. cit., volume I, pages
259–261.
[676] Ibid., pp. 270–273.
[677] Ibid., p. 218.
[678] Ibid., pp. 216–218.
[679] Supreme Court decision re Yamashita; 66 S. Ct. 340.
[680] Trial of the Major War Criminals, op. cit., volume I, page 218.
[681] Trial of the Major War Criminals, op. cit., volume I, page 226.
[682] Session of the Tribunal on 4 December 1947, Transcript pages
10934–10936.
[683] At the time this volume was nearing completion, further action on
these sentences was taken by the United States High Commissioner for
Germany. His decision upon review of these sentences will be included
in section XXV, volume XV, this series.
[684] In Berlin--Kammergerichtspraesident.
[685] The German Civil Service is divided into two main groups:
Beamte (officials) and Angestellte (employees). Beamte are classified
according to four levels: Beamte of “unteren Dienstes” (lower level),
“einfachen mittleren Dienstes” (intermediate level), “gehobenen
mittleren Dienstes” (upper level), and “hoeheren Dienstes” (higher
level). Angestellte are mainly custodial employees, workers, and
minor clerks, but also include some specialists who do not have
Beamten-status.
[686] Officials of the “lower level” are usually clerical employees
and are usually addressed with the title of their position (such as
“Buerovorsteher”--chief clerk).
[687] Usually carries a prefix such as “Justiz,” “Regierung,”
“Verwaltung,” “Ministerial,” etc.
[688] Equivalent to a senior colonel.
[689] For detailed information on German court system see “A Brief
Summary of the Court System,” in section IV C 2.
[690] Term “Assessor” is also used in connection with probational
appointments in the administrative career service and the teaching
career in university-level institutions.
[691] Literal translation of “Rechtswahrer” is “one who guards the
observation of law.”
[692] For offenses included in “Wehrkraftzersetzung” see NG-715,
Prosecution Exhibit 112, in section IV B, pages 192 and 193.
Transcriber’s Notes:
1. Obvious printers’, punctuation and spelling errors have been
corrected silently.
2. Where hyphenation is in doubt, it has been retained as in the
original.
3. Some hyphenated and non-hyphenated versions of the same words have
been retained as in the original.
4. Superscripts are represented using the caret character, e.g. D^r. or
X^{xx}.
5. Italics are shown as _xxx_.
6. Bold print is shown as =xxx=.
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