Transcriber’s Note:
This book has some very large tables. These should be viewed on a wide
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_