Theodor Klefisch
Lawyer
Cologne, 43, Blumenthalstrasse
To : The International Military Tribunal,
Nuremberg.
As defending counsel to the accused Dr. Gustav Krupp von Bohlen und
Halbach I request that the proceedings against this accused be deferred
until he is again fit for trial.
At any rate I request that the accused be not tried in his absence.
_Reasons_
By Article 12 of the Charter of the International Military Tribunal this
Court has the right to try an accused in his absence if he cannot be
found, or if the Court deem this necessary for other reasons in the
interest of justice.
The 75-year-old accused Krupp von Bohlen has for a long time been
incapable of trial or examination owing to his severe physical and
mental infirmities. He is not in a position to be in contact with the
outside world nor to make or receive statements. The Indictment was
served on him on 19 October 1945 by a representative of the
International Military Tribunal by placing the document on his bed. The
accused had no knowledge of this event. Consequently he is not aware of
the existence of an Indictment. Naturally therefore he is not capable of
communicating either with his defense counsel nor with other persons on
the subject of his defense.
To prove the above two medical certificates are enclosed—that of the
court medical expert Doctor Karl Gersdorf of Werfen, Salzburg of 9
September 1945, and that of the Professor Doctor Otto Gerke of
Badgastein of 13 September.
Lately Herr Krupp von Bohlen has been examined several times by American
military doctors. As far as it is possible I should like to request
another complete medical examination. If the accused is unable to appear
before the Court, then according to Article 12 of the Charter he could
be tried only if the Court deemed it necessary in the interests of
justice.
Whatever may be understood by the phrase “in the interests of justice”
it would hardly be objective justice to try a defendant accused of such
serious crimes, if he were not informed of the contents of the
accusations or if he were not given the chance to conduct his own
defense or instruct a defense counsel. Particularly is he in no
condition to comprehend the following rights of an accused set out in
the Charter:
1. By Article 16, Section (a) of the Charter a copy of the Indictment in
a language which he understands will be served on the accused at a
suitably appointed time. The assurance given hereby for a sufficient
preparation of the proceedings can not be guaranteed to Defendant Krupp
von Bohlen on account of his state of disease. According to Section (c)
of the same Article 16 a preliminary interrogation of the defendant
shall take place in a language intelligible to him. That is likewise
impossible here. According to Section (d) of Article 16 the defendant
moreover can not exercise his right of decision as to whether he will
conduct his own defense or whether he would like to be defended by
counsel. Also the right of the defendant as provided in Section (c) of
producing evidence and of cross examining witnesses himself or by his
counsel in his behalf can not be exercised by the defendant in view of
his condition.
2. In the same manner as the Defendant Gustav Krupp von Bohlen und
Halbach is not able to exercise the confirmed rights stated above in the
preliminary proceedings he will also not be able to exercise in the
Trial those rights guaranteed to him by Article 24 of the Charter. In
the first place this concerns the statement which the accused has to
render on inquiry as to whether he admits his guilt or not, a statement
which is of particular importance for the course of the Trial and for
the decision of the Tribunal. This is all the more important as this
statement regarding guilt or innocence can be made exclusively by the
accused himself according to his own judgment and after examining his
conscience. So far as the procedure is admissible at all, the defense
counsel could not at the request of the Court express himself on the
question of guilt, as such a declaration presupposes the possibility of
communication and understanding with the accused.
Also the defendant could not exercise the right to the last word to
which he is entitled according to Article 24, Section (j).
The legislators who set up these guarantees for the defense cannot wish
to deny them undeservedly to an accused who can not make use of them
owing to illness. If by Article 12 of the Charter the Trial of an absent
defendant is allowed, then this exception to the rule can be applied
only to a defendant who is unwilling to appear though able to do so. As
is the case with the criminal procedure rules of nearly all countries,
it is on this principle that the rules and regulations concerning the
trial of absent defendants are based.
/s/ KLEFISCH
Lawyer
Medical Certificates Attached to Motion
on Behalf of Defendant
Gustav Krupp von Bohlen
(Attachment I)
_Doctor’s Certificate_
Dr. Gustav Krupp von Bohlen und Halbach, born 7 August 1870, presently
residing at Posthaus Blühbach, Werfen, Salzburg, suffers from
progressive arteriosclerotic softening of the brain (Paralysis celebri)
and as a consequence of this illness he requires constant care and
treatment. He is incapable of standing trial or of being subjected to
interrogation. An improvement of his condition is not to be expected.
Owing to his bad general physical condition (Myodegeneratio cordis and
Ataxis) he is not capable of traveling either.
/s/ KARL GERSDORF, M. D.
District Doctor
Werfen, Salzburg
Certified Court Expert
Werfen, 8 September 1945
(Attachment II)
Attachment II is a medical certificate by Dr. Otto Gerke, printed on
page 120 ante.
REPORT OF MEDICAL COMMISSION
APPOINTED TO EXAMINE DEFENDANT
GUSTAV KRUPP VON BOHLEN[15]