that in cases concerning descent of Jews and Jewish persons of mixed
race the office of the police are frequently asked for information on
the place of abode of deported Jews by the courts especially by the
District Court Vienna, or that their admission, as witnesses or for the
purpose of examination for hereditary biological expert opinions is
requested. These requests cannot be granted for reasons of the Security
Police.
Even if the hearing (_and examination_)[381] of the Jews (_be
an important piece of evidence for the clarifying of the question of
descent_) in many cases help to frustrate the intentions (_of the
Jews_) to conceal their descent, reasons of the security police
demand to desist therefrom (_from this piece of evidence_).
In the near future I intend to issue in a decree detailed regulations
for the handling of cases concerning the descent of Jews and Jewish
persons of mixed race. Already now I request to inform the District
Court Vienna (_and other courts, in your district, which according
to your judgment, Mr. President of the Appellate Court, should be
informed_) of the following:
(insert)[382]
As deputy:
2. To the Chief of the Security Police and the Security Service
Subject: Requests for information on Jews made by the courts.
Reply to the letter of 3 May 1944--IV A-4-b (I) a-4647/43
1 enclosure (copy of 1)
[Stamp] Dispatched: 14 June 1944
3475/2 [Initial] B
In the enclosure I submit a copy of my letter to the president of the
Appellate Court Vienna for your information.
BY ORDER
[Initial] AL [Altstoetter]
3. Ministerial Counsellor Rexroth
With the request to settle the arrangement of the report with the
Minister
The settlement of the arrangement of the report was not possible on 3
June 1944
_Before dispatch_
Mr. Minister is informed
[Illegible initials]
[To the] Minister [of Justice] with request to permit the dispatch of
the above letter signed by me. The arrangement of the report could
be settled in connection with the report on the decree concerning a
general order on the handling of cases concerning the descent of Jews
and Jewish persons of mixed race. It is intended to put into the draft
of this official decree, the directives in the above letter sent to
the president of the Appellate Court Vienna for information to all
presidents of the appellate courts and general public prosecutors.
[Signed] ALTSTOETTER, 3 June
[Initial] R [Rexroth] 3 June
[Insert]
(In cases of Jews who were deported to Theresienstadt or to other
places, a hearing as witnesses or a hereditary biological examination
is impossible for reasons of the Security Police, because persons
to accompany them and means of transportation are not available. If
the residents registration office or another police office gives the
information that a Jew has been deported, all other inquiries as to
his place of abode as well as applications for his appearance [before
court], questioning and examination are superfluous. On the contrary,
it has to be assumed that the Jew is not obtainable for the taking of
evidence.
If in an individual case it is in the interest of the public to make
an exception and to render possible the taking of evidence by special
allocation of persons to accompany and means of transportation for
the Jew a report has to be submitted to me in which the importance of
the case is explained. In all cases offices must refrain from direct
application to the police offices, especially also to the central
office for the regulation of the Jewish problem in Bohemia and Moravia
at Prague, for information on the place of abode of deported Jews and
their admission, hearing or examination.)
[Initial] R [Rexroth] 3 June
EXTRACTS FROM THE TESTIMONY OF DEFENDANT
SCHLEGELBERGER[383]
_DIRECT EXAMINATION_
* * * * * * *
DR. KUBUSCHOK (counsel for defendant Schlegelberger): Since
the Jewish question is of particular importance for several points
in the indictment, I would ask you first of all to tell us what your
personal attitude to the Jewish question was.
DEFENDANT SCHLEGELBERGER: As far as I am concerned, there
is and there was no Jewish question. This is my attitude: all races
were created by God. It is arrogant for one race to place itself above
another race and try to have that race exterminated. If a state deems
it necessary to defend itself against being inundated and does so
within the frame of a social problem, then it can and must be done by
applying normal, decent means.
During the Goebbels campaign in 1938 I was abroad. When I heard
about those events I said to my family: “We must be ashamed of being
Germans.” That was my view at that time and that is my view today. The
only person with whom I am united in faithful friendship until today
because we went to school together is a full Jew. I succeeded in saving
his life all through that era. He again holds his former office as a
judge. My physician too is half-Jewish. That attitude of mine naturally
meant that on many occasions I was faced with inner conflicts. I ask
you to consider that the Jewish problem was regarded as the central
problem of the National Socialist State and the entire life in Germany
was to be placed in line with that. Concerning that question Hitler
and his followers worked in an entirely uncompromising manner; that an
expert administrator could not bypass that basic attitude is a matter
of fact. I shall have an opportunity to demonstrate what my personal
attitude was toward those questions and how it always evidenced itself
in an effort to put a check on the wishes of party policy, to make
improvements and to exercise as far as possible a moderating influence
on the practical application of those matters.
Q. What were the manifestations of your attitude to the Jewish question
in your office?
A. The prosecution charges me with having cooperated in taking measures
against the Jews. That the ordinance of 4 December 1941[384] against
Jews in the eastern territories must be evaluated under particular
points of view, I shall show in connection with the Polish question.
For the rest, I ask you to consider that in view of the strength of
the powers with which I was engaged in a struggle, a hundred percent
victory of the Ministry of Justice was entirely out of the question.
In that sphere, too, faithful to my basic attitude, I did work to
make justice prevail; but frequently I had to content myself with
making a compromise and I had to be pleased when at least I had
achieved some amelioration. To use a customary phrase, if I had drawn
the consequences from every defeat, I would have deprived myself of
all possibility to aid the Jews. Quite apart from the fact that the
resignation from office, before the war would have been a factual
impossibility, and during the war a legal impossibility until a new
minister was appointed.
With the permission of the Tribunal I will prove how difficult it was
by citing an example. When the Party started a campaign against Jewish
lawyers, I went to see Hitler and told him that it was untenable
to remove from their profession Jewish lawyers among whom research
people of repute were included, and with whom I myself had worked.
I was pleased when I succeeded in persuading Hitler that that was
correct and in achieving his agreement that he would reject the wishes
of the Party. To inform the agencies concerned, I called a meeting
of Ministers of Justice of the Laender who were still in office in
those days and informed them about Hitler’s decision. The result was
surprising. I encountered bitter resistance, and the meeting bore no
result. Hitler asked for Guertner to come to see him and asked him for
information as to whether I was not perhaps a Jew myself. Then the
Party began to exercise pressure on Hitler. He abandoned his decision,
and the Jewish lawyers were removed from office. So as to make it
possible at least for the Jews to preserve their rights, I proposed to
set up the institute of the so-called Jewish consultants where former
lawyers worked as consultants.
As to my own attitude toward these problems, that I could show properly
only where I, myself, had to make the decisions. In this connection,
I attach importance to the fact in saying here that nothing is more
removed from me than here to play the part of the friend of the Jews. I
am not a friend of the Jews; I am not a friend of the Aryans as such;
but I am a friend of justice. And anybody who saw me at work and wishes
to give a just opinion can confirm that with regard to all those who in
my opinion were unjustly persecuted; no matter what their race or what
their class, I tried to help them with all my strength.
Roosevelt, the former President of the United States of America, in
1944, in an address to the United Nations said, “Hitler asserts that
he had committed the crimes against the Jews in the name of the German
people. May every German show that his own heart is free of such
crimes by protecting the persecuted with all his might.” I can claim
for myself that I acted accordingly. Concerning the members of the
Ministry who were not fully Aryan, I kept them in office; and as has
been established at this trial concerning judges who were not fully
Aryan, I left large numbers of them in their offices irrespective of
the Party purge. I looked after those who had been dismissed from their
posts, and who were non-Aryans, and who had Jewish relatives. As far as
possible, I protected them against being driven out of their homes and
being deported.
Q. Concerning the question of civil servants remaining under Dr.
Schlegelberger who were not fully Aryan, persons who were only
dismissed on the basis of Thierack’s list, I refer to Exhibit 42.[385]
On the legal provisions concerning the fact that since 1933 a minister
could not resign on his own, I will submit Schlegelberger Documents 79
and 80.[386]
Witness, you also dealt with a bill concerning people of half Jewish
race. The prosecution has included those documents under PS-4055,
Prosecution Exhibit 401.[387] Will you tell us something about those
documents?
A. That document has been the subject of the discussion before the
International Military Tribunal. The document, if my recollection is
right, consists of two parts. On 12 March [1942], there was a letter
from me to Reich Minister Lammers, and a letter of 5 April, to various
agencies.
Q. May I interrupt you for a moment? The first letter is dated 6 March,
and is in the English text on page 95.
A. I thought you were talking of the discussion which took place on 6
March.
Q. Yes, on page 95.
A. First of all, I’d like to speak about the letter of 12 March. That
was, as I said, a letter from me to Reich Minister Lammers. From that
letter I gathered that on 6 March there was a discussion about the
treatment of persons of mixed origins, partly Jewish, partly Aryan. In
that conference, the SS had demanded that people of mixed origin were
to be treated in the same way as full Jews and were to be sent to labor
camps in Poland.[388] If that had been done, a demand which for a long
time had been voiced by the Party in a categorical manner would have
been carried out. If one reflects to what extent the police measures
were carried out in those days against Jews, one had to recognize that
now the question of the fate of the mixed Jews had entered into an
acute phase.
When I heard about the subject of that discussion, the question arose
immediately whether one could, and how one could, intervene. My moral
obligation was clear to me. There was the difficulty that it was a
different department; that in itself was difficult to interfere with
a different department in its work; and again and again there would
be the additional difficulty that I was no minister. But to put it
plainly, it was the case of an under secretary who was only appointed
[as acting Reich Minister of Justice] under a system by which he could
be given notice any day. If I had attempted to attack that political
solution with legal or ethical weapons, nothing would have been done
and there would have been nothing but mockery about me. Thus, I had to
find a different way.
I had to try to approach somebody who perhaps might have the
possibility to talk some sense into Hitler, and that person was Reich
Minister Lammers, a man from the group of old civil servants, a man
who had a feeling for right and justice, and whom I had frequently
assisted in difficult situations. I could be quite open and frank
with him; and, therefore, the quite open way in which I talked in
my letter was without any pretense. I described the suggestions as
entirely impossible. I did so knowing that thereby I was interfering
with affairs which had nothing to do with me as far as my department
was concerned, for the judiciary only had an outside interest in those
affairs. There was a question of compulsory divorce, a question which
naturally I answered in the negative; a question which was naturally
very important for those whom it concerned, but the importance of which
was not comparable to the great problem which was now my concern.
Lammers said I could talk to him, but that conversation never came
off, and probably it did not come off because Lammers was away at the
[Fuehrer] Headquarters. Thus, I had to act on my own initiative, and,
as I have said, I could not act in basing myself on legal and ethical
considerations because that would have amounted to doing nothing. I
had to limit myself concerning the agencies in question to acquaint
them with the fact that the solution which they intended to apply
was not possible. The entire idea and the entire way of thinking
concerning that question altogether was based upon the desire to see
to it that a further increase of persons of mixed origin, Aryan and
Jewish descent, was to be avoided. I used that as my basis, and this is
what my proposal amounted to. Certain groups were to be exempted from
the solution altogether from the very outset. First, persons of mixed
descent of the second degree, that is to say those persons who had
only one Jewish grandparent; second, a person of mixed descent of the
first degree, that is to say a person who had two Jewish grandparents;
of those the people who were not able to propagate; and three, those
persons of mixed descent, first degree, whose offspring under the
law were not considered half-Jews. By that proposal, therefore, all
persons of mixed descent, second degree a very large number, and a
considerable number of people of mixed descent first degree, would
have been excluded from this measure. The remaining persons were of
mixed descent, first degree. For them I suggested that if they were
to prefer it, they were to be sterilized rather than deported to
Poland. May I draw the attention to this point. The idea of escaping
deportation by voluntary sterilization did not originate within myself.
That idea originated from the persons of mixed descent themselves.
I knew that persons of mixed descent had asked physicians to exempt
them from the application of the Nuernberg laws and had themselves
suggested to afford them the possibility of sterilization. In view of
that situation in which they found themselves, I thought it justified
to revert to the suggestion which these people themselves had made
originally, and to afford them an opportunity in that manner to escape
deportation to Poland. The prosecution employed that suggestion of mine
to raise charges against me. I believe that if one thinks things out
until the last, it is not so difficult to recognize that these charges
are unfounded. My suggestion, altogether my work in that respect as I
have said before, was not one of the tasks of the judiciary. If I went
beyond the limits of my department, one must bear in mind that the
charge would only be justified if one took it for granted that I was a
model of active National Socialists, an active National Socialist who
overcomes every obstacle even the limitations of his department, and I
would assume that everything that has been discussed here so far will
show that to assume such an active National Socialist ardor would be
complete nonsense. I acted in accordance with my ethical feelings; the
only motive for me was the intention to check a development which was
fatal for a large number of persons. There are, after all, situations
where one can only escape a larger evil by applying a smaller evil.
But that somebody who all his life has thought along the lines of law,
found it extremely difficult to make a decision of that kind, that the
Tribunal will understand.
Q. Under Document NG-151,[389] the prosecution has submitted documents
concerning limitations of the legal means for Jews in penal cases.
Please give us an explanation concerning those documents.
A. Those documents begin with a letter by Freisler dated, I believe,
3 August 1942. In that letter Freisler tells the agencies in question
about a bill concerning the problem we have just mentioned. The reason
for his suggestion, he referred to as the exigencies of the war, he
says that the state of affairs is untenable, and that it weakens the
defensive will of the German people. Freisler wrote that letter without
my knowing anything about it beforehand, but afterward he told me
about it and gave me his explanation. This is what he told me: Himmler
and his agencies had pointed out again and again that the present
state of affairs was an impossibility; only a radical separation of
the entire Jewish problem from the judiciary and transfer to police
was conceivable. Again here we find--I shall have to revert to that
later--Himmler had also said that the administrative measures against
the Jews had advanced so far that it would be nonsense, in particular
concerning criminal Jews, to be more lenient; therefore, one had to
guard against allowing these criminal Jews, who were already under the
supervision of the judiciary, such benefits as legal protection.
Himmler’s desire to transfer Jewish affairs to the police was too
much even for Freisler. Perhaps he was also particularly proud of his
paternity of the penal ordinance concerning Poles and Jews which he
considered his own sphere. Therefore, so he told me--and I believed
him--in all circumstances he wanted to adhere to the competence of the
courts; but he then convinced himself that somehow or other he had to
make a concession because otherwise events would move without us.
Furthermore, we of the administration of justice, particularly in
the Incorporated Eastern Territories, suffered from a severe lack of
judges, and we could only master that difficulty if we exempted a
number of judges from service in the armed forces. If Freisler and we
had refused consistently to comply with Himmler’s wishes, it would have
been easy for Himmler to get Hitler to agree to cancel such exemptions
from service with the armed forces, and thus the administration
of justice in the eastern territories would have come to an end
altogether. In order to avoid this danger, Freisler believed that he
had found a way out in limiting legal remedies and thereby to start out
on a way which we later on, inside Germany, in cases against Germans,
had to take on account of the lack of judges. That is why he made the
suggestion. I could not altogether agree with Freisler’s arguments, but
I attached importance to the fact that this new regulation was to be
final and was to appear as such to the outside world, too. That might
strengthen our position toward the opposing forces and, therefore, in
the letter I wrote afterward,[390] I discussed the question of whether
Jews are able to take an oath, and I included that question in my draft
so as to make that draft more well rounded and complete. In itself this
question of the oath was important, for under German law it is the duty
of the judge to attach equal weight to statements made under oath, and
statements made while the person was not under oath.
There again we were faced with a case in which a concession which in
itself was immaterial but which to the outside world, nevertheless,
seemed important, had to be made in order to pacify Party circles. If
one wants to evaluate such a procedure, one must bear in mind that 1
month later Thierack did find a final and comprehensive solution. He
dropped my suggestion and transferred the Jews to the police.[391]
Q. The prosecution also submitted Document NG-589, Prosecution Exhibit
372,[392] a document which concerns a curtailment of the poor law
privileges of the Jews. Was that ruling made at your suggestion?
A. No. I only heard about that ruling here when the document book was
submitted. At every ministry certain matters which are not of much
importance are dealt with quite independently by departments which are
below the under secretary or the minister. It is altogether out of the
question that an under secretary or minister deals with everything
personally. He would even misunderstand his function if he were to do
so. Those matters, for example, the question of the poor law, fell
within the competence of the then Assistant Under Secretary Hueber, who
signed the ordinance.
As I said, I only heard about it here, but I should like to add
that the institution of the poor law was created so as to enable
poor persons to conduct civil litigations. The granting of poor law
privileges does not mean that the person to whom it is granted can
conduct proceedings free of costs, but it only exempts him from payment
in advance. He is still under an obligation to pay.[393]
The poor law institution, therefore, so to speak is an institution
of government welfare. For a long time before Hueber ordered it,
government financial support of Jews had been stopped, and they
had been referred to their own Jewish welfare organizations. The
uncurtailed provisions governing the poor law, therefore, were not in
accordance with the line otherwise observed, and Hueber refers to that
when he considers the old ordinance as outmoded.
Q. I do not know whether the witness’ statements were clear enough to
elucidate the concept of the poor law. I hear that the expression in
English has been translated by “poor law.” That translation might
perhaps lead to confusion. We are concerned here merely with the
question of costs and merely with the exemption of paying costs in
advance, and that is the cost of civil litigation.
* * * * * * *
Q. I come now to the introduction of the German criminal law in the
Incorporated Eastern Territories. Will you please give a short review
of the general development of that question?
A. These matters, as far as the time was concerned, are connected with
what I said before. Among the drafts sent out in February 1940, there
was also one about the introduction of criminal law.
Q. May I interrupt you? That, again, is Exhibit 459.[394]
A. That draft comes from Freisler’s sphere, and in the absence of the
Reich Minister of Justice Guertner, as well as Freisler, I signed that
draft upon the request of the Minister. That draft provided absolutely
equal treatment of Germans and Poles. Later on, 6 June 1940, a decree
was issued about the introduction of penal law in the Incorporated
Eastern Territories and that decree was only designed for Poles and
Jews; that shows that before my time, and without any assistance on my
part a special law was created for Poles and Jews. Apparently Freisler
afterward gave in to the efforts of the Party and had managed after
hard struggles to obtain the approval of Guertner, who, as I know, was
against such a thing on principle. But the decree of 6 June 1940 bears
the signatures of Frick and Guertner.
Q. That decree will be contained in my document, Schlegelberger
60.[395] Then, it came to the penal ordinance concerning Jews and
Poles, 7 December 1941, that is Exhibit 343.[396] Will you please
discuss that decree in detail?
A. That decree of 7 December 1941 which has been the subject of a
detailed discussion in this trial is based on the following: The decree
of June 1940, in the view of the department of criminal legislation
in the Ministry, was not satisfactory. And that was because the
extent of punishment was not sufficient, neither the maximum nor the
minimum of punishment was sufficient. There was also a lack of specific
provisions. In addition to that, the Reich Chancellery had informed
the Ministry, that the deputy of the Fuehrer and the Party, demanded a
discriminatory law concerning Poles and Jews.
Q. I refer to Exhibit 341.[397]
A. Therefore, the Department for Penal Legislation--that was before
my period in office as Acting Reich Minister of Justice--had started
to work out a new draft which should take care of these deficiencies.
When I took over after Guertner’s death, Freisler reported to me about
that matter and told me the following: It was Himmler’s intention to
obtain sole competency for all cases against Poles and Jews, and that
Gauleiter Greiser of Warthegau province was of the same opinion, and
he if necessary wanted to eliminate the administration of justice with
the aid of civilian courts martial. Bormann was of the same opinion
and demanded, first of all, the introduction of corporal punishment.
According to this information I had to expect a fight with the Party.
This fight which was fought to maintain legal procedures for Poles
and Jews in all events, could only be successful if I could point
out that the courts had at their disposal an appropriate procedure
and appropriate provisions which were sufficient for all, even the
most serious cases. The new draft,[398] in my opinion, was designed
to rebut the assertion by the Party that the courts could not master
the situation. Therefore, in April 1941, I submitted that draft to
the Ministerial Council for Reich Defense to the attention of Reich
Minister Lammers, in order to achieve a decision. I also announced
to Lammers that I had to see him in advance to inform him about the
situation, and about the conditions which lead to the draft in that
form. The prosecution has repeatedly referred to that covering letter
which accompanied the draft.[399] Therefore, I should like to explain
the reason for this letter, and the manner in which it was written.
According to the legal provisions, to those provisions which I have
already discussed, I had to have the approval of the Party Chancellery,
but only then did I have any chance to obtain that approval, if
that draft was implemented with those main points which I considered
necessary.
If I had described in my letter the contents and consequences of the
draft without exaggeration, I could never have expected the approval
of the Party Chancellery. Therefore, I had no alternative but to
emphasize the increases in the severity of treatment with exaggerated
expressions, to pass over less severe provisions, and to leave out
references to decrees which would make this decree more lenient.
Whether it came to any conference with Lammers, I could no longer
tell. I remember quite clearly the event which proved to me that my
assumption was correct, that we would have to expect a most energetic
attack on the part of Himmler.
In the summer of 1941, Himmler asked me to come to a conference. That
was the only one I ever had with Himmler. There was a great pressure
with regard to time connected with that request. Himmler told me that
he was on his way to see Hitler and that he had to have my approval.
Penal cases against Poles and Jews should be turned over to him, that
is to say, to the police. That was regardless of where the acts had
been committed.
I rejected that categorically and told him that for that kind of change
of competence, there was no reason whatsoever, particularly since in a
very short time a new regulation could be expected about that question
by the Ministerial Council for Reich Defense. That, of course, made
Himmler suspicious. At that time, it did not seem to him to be the
right thing to fight against the Ministerial Council for Reich Defense
which was under the presidency of Goering, at that time a strong
opponent. Himmler seemed to depart for a short time from his original
plan.
The Ministerial Council for Reich Defense passed that draft in December
of the same year and that determined and assured the competence of the
courts for penal cases against Poles and Jews[400]. When I left office
that was immediately changed as could be seen from these proceedings.
That decree dates back to December 1941, as I have already pointed out
the period when my task as Acting Minister of Justice came to an end.
It is not surprising that I could not gain a clear picture, as to how
that decree was applied and what the consequences were.
I do recognize that one could criticize individual sentences at
least as far as the limited amount of material is concerned which is
available to us now. However, considering that there were about half a
million penal cases during 1 year--as regrettable as it may be in the
individual case--it is not very decisive for an over-all judgment of
conditions. I owe it to the German judges to state here frankly and
publicly that as long as I could observe their activity, they have
discharged their duties with a definite desire for justice in general.
Concerning the criticism which was voiced against this decree, I should
like to say the following in detail. The most essential feature of
that decree was its practical application. I took every opportunity
when a judge from the eastern territories came to see me to point out
that that decree gave a great deal of latitude to the judges; that
therefore, the judges for the procedure as well as for the sentencing
had to keep in mind that they were servants of justice. Beyond that I
caused Freisler to discuss the point of view of just application in an
article in a magazine, _Deutsche Justiz_ (German Justice).[401]
_Deutsche Justiz_, an official publication, was read by all judges
and prosecutors, and that made absolutely certain that they knew how
Freisler thought about it, and that he did not want any arbitrary
application. That achieved that Freisler himself was prevented from
giving individual directives or expressing opinions which would go
contrary to the meaning of that decree. In view of his unstable nature,
this was particularly important.
This article by Freisler took into account my demands by stating that
it was a serious duty of judges and prosecutors in cases of Poles
and Jews to apply the same maximum care as they would in the case of
Germans. The prosecutors are instructed in preliminary investigations
to examine also points in favor of the defendant very carefully so that
the defendant can recognize the charges made against him and is put in
a position to prepare his defense. The courts are admonished to keep in
mind that it was not within the meaning of the decree that facts which
were of little or no importance should be artificially exaggerated.
What harms an individual does not harm the Reich. Sufficient
opportunity should be given to the defendant to use legal remedies,
to explain things, and to state his views to the evidence submitted.
Everything should be avoided which in the least would make the sentence
look like a sentence based on suspicion. Under all circumstances, the
extent of the punishment should be within sound measure. The legal
remedy of appeal should be applied by the prosecutor, also in favor of
the defendant and for that express purpose, the time limit was extended
to twice its normal length.
PRESIDING JUDGE BRAND: Mr. Schlegelberger, you are referring
to an article by Freisler, are you not?
DEFENDANT SCHLEGELBERGER: Yes.
PRESIDING JUDGE BRAND: Does that have an exhibit number, or
will it have?
DR. KUBUSCHOK: I will submit that article as Document
Schlegelberger 61; 61 will be the number of that article. It is in my
document book.
PRESIDING JUDGE BRAND: 161?
DR. KUBUSCHOK: No, only 61 in document book 3, Schlegelberger
document book 3.
PRESIDING JUDGE BRAND: Thank you very much.
DEFENDANT SCHLEGELBERGER: The right for civil suits for
Poles and Jews had already been rescinded by the old decree. A new
decree brought modification by which also Germans should not have that
right any longer as Freisler explained. And now the most important
element--the latitude and extent of punishment was increased not only
toward heavier punishment, but also by decreasing the minimum. The
death penalty was mandatory only where an act of violence was committed
against a German on account of his being a German. That was already
contained in the old decree. In all other cases, apart from the death
sentence, there was an opportunity for a prison term.
In the old decree, in the case of anyone owning or carrying weapons
a death penalty was mandatory. The new decree provides for the
possibility of a prison term which goes all the way down to 3 months in
prison. That modification applied to a large number of offenses. Also,
the mandatory death sentence for arson was abolished. Apart from that,
I am of the opinion--and it has been mentioned here frequently--that
whether the death penalty is mandatory or optional, a judge who does
not want the sentence of death in taking into account the facts in a
case, can almost always avoid that possibility.
The prosecution asserts that the new decree excludes the clemency plea
for Poles and Jews. That is not correct. If it is stated that the
sentence was final and had to be executed immediately that only means
that with the exception of that right the sentence is final. I will
not discuss the question as to whether a sovereign can forego the use
of the clemency plea from the outset, but it is beyond doubt that the
Ministerial Council for Reich Defense could not have excluded the right
of pardon on the part of Hitler. Besides, for the Incorporated Eastern
Territories, the pardon regulations of 1935 applied. Article 453 of
the Code of Criminal Procedure, according to which execution of the
death sentence is only possible after it has been ascertained that the
authority in charge of the clemency prerogative has refused to make
use of this prerogative was especially emphasized upon my demands in
Freisler’s article. In fact, Poles were pardoned. That was mentioned in
these proceedings. I would like to refer to two cases which I remember:
the case Pitra and the case Wozniak.
DR. KUBUSCHOK: Those cases are contained in Document NG-398,
Prosecution Exhibit 253.[402]
DEFENDANT SCHLEGELBERGER: The right to have defense counsel
is not taken from the defendant by that decree. On the basis of the
regulations concerning Special Courts of that time, a defense counsel
had to be appointed for the defendant. And I may say in conclusion that
the penal ordinance concerning Poles and Jews guaranteed the Poles and
Jews a court procedure and a sentence by the court. Also, it prevented
these defendants from being dealt with without the protection of the
court and being turned over to the police.
Q. I am just informed that the translation on one point was in error.
The witness stated that he would not discuss the question as to whether
the right for pardon on the part of the sovereign, or the supreme
authority of the state, could be omitted, and instead of the word
“sovereign,” the word “defendant” came over the channel.
According to Exhibit 346, retroactivity of the penal ordinance for
Poles and Jews was ordered.[403] What can you say in that connection?
MR. LAFOLLETTE: I did not get the Exhibit number.
DR. KUBUSCHOK: Exhibit 346.
DEFENDANT SCHLEGELBERGER: I have described how great the
pressure on the part of Himmler and Bormann had been. We had just
succeeded in calming these parties down. They had had quite different
ideas of the practical application, but now Freisler again piped up. He
complained that in past cases the old decree was still applicable. In
order to prevent a renewed debate about the competency of the police,
that request for retroactivity was granted. Besides, that decree
concerning retroactivity had a consequence which the Party officials
had not taken into account, most probably, because now, on these many
pending cases against people who had been found to have arms, not the
old decree but the new decree had to be applied which also gave the
possibility of a penalty of 3 months’ prison term instead of the death
sentence, which was mandatory under the old decree.
Q. The prosecution charges you with having introduced or contributed
toward introducing the Standgerichte--the civilian courts martial--in
the Incorporated Eastern Territories. Document NG-136, Prosecution
Exhibit 345[404] is in point. What can you say in that connection?
A. Apart from the general desire to turn over cases of Poles and Jews
to the police, Himmler and Bormann, as it was said once, had a special
preference and desire for the establishment of civilian courts martial.
One could not quite bypass that desire in the decree concerning
Poles and Jews, but it was possible to establish an obstacle. I did
so, including the provision that civilian courts martial could only
be established with the approval of the Minister of Justice and the
Minister of the Interior. Greiser, with the support of Himmler, had
recognized that that clause or that provision would make it impossible
for them to have their wishes fulfilled.
Therefore, bypassing the Minister of Justice, they went directly to
Hitler. Lammers, by order of Hitler, informed me that Hitler had
decided that the demand for the establishment of civilian courts
martial and the transfer of rightful pardon should be granted.
What I had always tried to achieve by various means had not been
achieved; on the contrary, that which I had tried to avoid had come
true. By the decision on the part of the Fuehrer, my hands were tied.
* * * * * * *
_CROSS-EXAMINATION_
* * * * * * *
MR. LAFOLLETTE: Now I believe you testified on direct
examination that you yourself had no anti-Semitic feelings as such
against the Jews as a race; that also you sought justice rather than to
classify people as groups. That, as I gather, was right?
DEFENDANT SCHLEGELBERGER: Yes, that is correct.
Q. If then you extended the Nuernberg laws[405] by decree into the
eastern territories, that would be a little inconsistent with your own
feeling about the matter, would it not?
A. Certainly not.
Q. May I hand you a copy of an order of the 31 May 1941 which as
I read it has the effect of extending those laws into the eastern
territories. This order was signed by you. That is the prosecution’s
document NG-1615, which we asked to have marked for identification as
Prosecution Exhibit 521,[406] Your Honor.
If Your Honors please, if the Tribunal will permit me, I have had
English copies of this and I thought they were here. I am advised that
they are not in here now. I will furnish them. May I proceed and then
furnish them to the Tribunal?
Have you examined that exhibit, Doctor?
A. Yes.
Q. It is signed by you as Acting Reich Minister of Justice, Martin
Bormann, and Dr. Stuckart. Is that correct?
A. Yes. There are two decrees on the same day.
Q. Yes. Article 3 provides the Act for the Protection of German Blood
and Honor of 15 September 1935 shall be applicable in the annexed
eastern territories. That is what is known as the Nuernberg law, is it
not?
A. Yes.
Q. That was applied to the eastern territories?
A. In regard to this decree, I would like to say something, if I may.
Q. Surely.
A. These two decrees of 31 May 1941; the first one is an order
introducing it; and the second one is the executive order of the Law
for the Protection of German Blood and Honor. They have to be looked
at together. As far as the basic question of the introduction of that
law is concerned, the prosecutor has already spoken about my personal
feelings. I shall leave them out of consideration for the moment. In
regard to the question as to whether the Nuernberg laws were supposed
to be introduced, the following were the decisive legal sources:
First, here too the directives of policy which Hitler had issued;
secondly, the political responsibility of the Ministry of the Interior,
as the central office for questions regarding the eastern territories,
and the leader of the Party Chancellery.
The Ministry of Justice in regard to these laws participated only
because the so-called law for the Protection of German Blood and Honor,
by which Minister Guertner was completely surprised at the time,
contained a penal regulation. If now, in accordance with the political
directives, one had to introduce this decree, the penal regulation, of
course, had to be introduced too, and from that resulted, of necessity,
the signature. Moreover, from the connection of these two decrees, it
is apparent without any doubt that the decrees do not apply to Poles,
either Jews or non-Jews, but only to German citizens, and that they had
to comply is obvious.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[407]
_DIRECT EXAMINATION_
* * * * * * *
DR. SCHILF (counsel for defendant Klemm): We come now to
the third phase of your activity, namely, your activity in the Party
Chancellery in Munich.[408] I ask you, first of all, how did it happen
that you came into the Party Chancellery at all? Please also tell the
exact dates to the Tribunal first.
DEFENDANT KLEMM: I began my activities in Munich on 17 March
1941. At that time the Party Chancellery did not exist at all. At that
time there was only the staff of the Deputy of the Fuehrer, and that
was Reich Minister Hess. Reichsleiter Bormann who had the position of
chief of staff was not in Munich at all, but since the beginning of
the war, in the Fuehrer Headquarters in the immediate proximity of
the Fuehrer. That remained the same way during the entire course of
the war. From the Party Chancellery I knew the chief of Department
III, that is Under Secretary Klopfer. I have known him since 1924 or
1925; that is, from my student days. We had not seen each other at all
for 1 or 2 years and had not written to each other. We met by chance
in Berlin in January 1941 in front of the Reich Chancellery, on the
occasion of the funeral of the Reich Minister of Justice Guertner. I
had come for this funeral from The Hague and Klopfer happened to be in
Berlin. At that time Klopfer had just been given Department III in the
staff of the Deputy of the Fuehrer, and he asked me whether I would
like to work in his department, and to take over the group in charge of
the administration of justice. That group consisted at that time of two
or three people, and there was no group leader because he was employed
in other matters.
Q. I believe that is sufficient to describe the cause--
A. I said at the time to Klopfer that I liked it very much at The
Hague; that I had an independent position there. I was able to work
independently, but during the war things were not done in accordance
with the personal wishes of a person; that I would work wherever I was
assigned to work. I never heard anything about it again until one day
Seyss-Inquart called me to him and told me that he had had a lengthy
correspondence with the Party Chancellery, that the Chancellery had
asked for me, that he had fought against this, but in the end had to
give in after all. And he had agreed to the chief of staff of the
Deputy of the Fuehrer to put me at his disposal, and therefore, he
instructed me to start my service in Munich 4 days or a week later.
That is how I entered the staff of the Deputy of the Fuehrer at the
time.
Q. Before we now turn to your activities in detail in the Party
Chancellery, it seems to be necessary to tell the Tribunal the most
important facts about the organizational structure of the Party
Chancellery or the staff of the Deputy of the Fuehrer. You know that
the Party Chancellery has a bad reputation. We want to tell the
Tribunal first the outside organizational structure.
A. The staff of the Deputy of the Fuehrer had that name until the
middle of May 1941, until the time when Reich Minister Hess--that is
the Deputy of the Fuehrer--secretly flew to England.[409] At that time
the staff was transformed into the Party Chancellery, and for the sake
of simplicity I shall only use the name “Party Chancellery” from now on.
The Party Chancellery was an organization with, in my estimation, from
750 to 1,000 persons. There was one office in Munich and one in Berlin.
The Party Chancellery was divided into three divisions, and these
divisions were again subdivided into groups:
Division I, which is of no interest here, was in charge of management,
building, and maintenance; and in that division the personnel of the
Party Chancellery itself was administered. Furthermore, the registry
was there and the telegraph and teletype system.
The nucleus of the Party Chancellery as a Party office was Division II,
the Party political division. Here was the actual leadership of the
Party, that is, the NSDAP, and here was the direct channel to the Gaue,
the Kreise, and the local groups. A certain Friedrichs was in charge of
this division.
Division III was the State or constitutional division as it was called.
Under Secretary Dr. Klopfer was in charge of it. Here everything was
dealt with which had to do with the State and the State functions of
the Party Chancellery, while, as I have already stated, purely Party
matters were dealt with in Division II.
Q. Would you please explain to the Tribunal the contrast between this
office, the Party Chancellery, and the purely Party offices of the
NSDAP?
A. In addition to the Party Chancellery, the Party had different
offices on the level of the Reich leadership, for instance, to cite
examples, the Reich Legal Office, the Office for Agricultural Policy,
and the Office for Public Welfare. Thus, there were a number of
different agencies. Party jurisdiction went through up to the supreme
Party court. It also was divided into Gau and Kreis courts. In addition
to that there were also, of course, some other Reich offices, such
as the office for Reich propaganda matters and Reich organizational
direction, and so on.
Within the Party Chancellery, in addition to these three divisions,
there was also the so-called Reichsleiter Bureau, Reich Leader Office.
That was, so to speak, the staff formerly closest around Reich Minister
Hess and later on around Reichsleiter Bormann. This Reich Leader Office
Bureau, which at times had up to three jurists on its staff, met partly
in Munich and partly in Berlin, in the office there, and partly at the
Fuehrer Headquarters immediately with Bormann.
Q. You spoke of Division III as the State or constitutional division. I
ask you whether it was anchored on a legal basis.
A. If I speak of a state or constitutional division, I give it this
designation because of the nature of the work of that division.
Division III was, so to speak, the counterpart of the State
organization in the Party sector. Division III was divided into seven
groups. I shall describe this organization somewhat later.
By virtue of the “law to secure the unity of Party and State,”[410] the
Deputy of the Fuehrer had been made a Reich Minister. Supplementary
decrees, and orders laid down that the Deputy of the Fuehrer, had to
participate in the making of national laws and ordinances, by having to
approve the drafts of such decrees. This right was then transferred to
the leader of the Party Chancellery, and in a more stringent form--as
the witness Schlegelberger has already testified--quite clearly in a
circular, or perhaps in an ordinance it was repeatedly stated that
the leader of the Party Chancellery always had the position of a
participating minister. In the same way as in the purely legislative
field, the Deputy of the Fuehrer entered into personnel matters of
the government. No higher official could be employed or promoted if
this measure in the State sector was not approved by the Deputy of the
Fuehrer and later by the leader of the Party Chancellery.
In order to fulfill these State and constitutional functions, Division
III had been formed in the Party Chancellery, or rather earlier, in
the staff of the Deputy of the Fuehrer. As I have already stated, it
consisted of seven groups:
Group III-A, above all, dealt with the sphere of the Reich Ministry of
the Interior and questions of nationality [Volkstum]. During the last
period of my time in Munich, the witness Anker, who was examined here
as a witness for the prosecution, was in charge of Group III.
In Group III-B, all economic matters were dealt with: economics, food,
traffic, mails, and armaments.
Group III-C, the group of which I was in charge, dealt with laws and
orders as far as they had been issued by the Ministry of Justice, and
with questions of Party law.
Group III-D worked on educational and ecclesiastical questions, as well
as matters of the Foreign Office.
Group III-E dealt with financial questions, and Group III-P (Paula)
dealt with personnel matters; that is, all State personnel matters,
without consideration of the fact as to whether they originated from
the judiciary, the administration, finance, or anywhere else.
Then there was a group, III-S, which had special tasks in the cultural
field.
* * * * * * *
Q. Witness, you have now listed the individual groups, seven, as you
stated. I now ask you to make a statement as to how the individual
groups of the Party Chancellery were in contact with each other or how
they worked together.
A. In my description I omit Division I, because it only dealt with
technical matters of the management of the office, administrative
details within the Party Chancellery. I can limit myself to the
relationship of Division II, that is the purely Party political
division, and Division III. These two divisions worked not with
each other but against each other. Already this structure was quite
arbitrary and unorganized. For example there were fields of work which
had the same name in both divisions. In the course of time Division
II arrogated this to itself. This battle between the two divisions
was not based only on purely factual reasons in the fields of work but
also had other deeper reasons. In Division III officials were working
who had almost exclusively been detailed by their ministries for such
work. In Division II only political leaders were working whole time
who, for the most part, looked down upon the jurists with contempt.
The word “jurist” was a kind of epithet, and they saw in the people of
Division III only civil servants and deputies of the ministries. They
did not concede that we did any political work at all, and especially
not work of a party political nature. They did not acknowledge us as
political leaders at all. We in Division III were only a necessary
evil in the Party Chancellery; that is how they saw things, because
without the experts they could not get along. This disrespect--I
cannot call it anything else--this disrespect on the part of Division
II was especially strengthened by the attitude of Bormann toward
Division III. He had approximately the same attitude. The result was
that between Divisions II and III there was a constant malicious fight
for competency. Division II constantly tried to arrogate to itself
matters which could have something remotely to do with Party matters.
These attempts took place also when State matters were predominantly
or exclusively concerned; that is, if the effects would take place
in the State sector. This situation was favored by the unbelievable
conditions that existed in the registry. This registry had been built
up by laymen. In 1933 Germany had several million unemployed, and an
effort was made to find a place for these people and again give them an
opportunity to make a living. The result was that people were put in
such positions only to find a place for them, people who had no idea
about an organizational structure. In this registry, former streetcar
conductors and violinists were employed, people who knew nothing about
it. Therefore, the entries were constantly directed to wrong places and
then the other division did not let them go out. Whether a letter went
to Division II, or Division III, or directly to Bormann was in many
cases just a question of luck.
Q. I wanted to ask you also, in Division III was there also a
financially worse position compared with the people in Division II?
A. We were paid the same way as we were paid when we were in the employ
of the State, while the political leaders, the Main Office political
leaders, had their own salary scale; and I do not want to repeat here;
I can refer to what the witness Anker stated who explained that a
political leader of Division II in the same position as Anker got about
double the amount of salary than an official.
Q. I want to demonstrate to the Tribunal the borderline of competency
between Divisions II and III. I have here a document which the
prosecution believed they could bring into some kind of connection with
your case. It is Document NG-364, Prosecution Exhibit 108.[411] This is
the infamous letter about the lynching of Allied airmen who had bailed
out. The letterhead is the NSDAP, Party Chancellery. Further, the
leader of the Party Chancellery and the place from which it was sent is
the Fuehrer Headquarters. The date is 30 May 1944.
A. Even though this is a circular from the Party Chancellery at a time
at which I had been out of the Party Chancellery already for 5 months,
I do know that such circular letters in principle were not submitted
by Division II to Division III when they were in a draft form or for
cooperation, even if the police, the Wehrmacht, and the administration
of justice and their spheres of work were discussed in it.
Q. The letter is signed by Bormann. In the same document, that is
Exhibit 108, there is contained another letter which also has the date
30 May 1944. It is addressed to all Gau leaders and Kreis leaders, and
refers to Bormann’s circular letter. It is signed by Friedrichs. Is
Friedrichs the chief?
A. Friedrichs is the chief of Department II.
Q. Before, when you were speaking about the registry and the delivery
of letters, you mentioned that many letters went directly to Bormann,
to the Fuehrer headquarters. Thus, these letters did not go to Munich
to the divisions that had been established there. Was there any
standard in regard to the distribution of these letters, to whom they
were to be sent?
A. If personal letters to Bormann in his position as Reichsleiter or as
secretary of the Fuehrer were received by a minister or a Reichsleiter
or a Gauleiter or any other prominent person in the service of the
State or the Party, these letters always went first to Bormann in the
Fuehrer Headquarters. Other letters went quite frequently first to
Bormann. It depended entirely on who of the people I described before,
who did not have the requisite training at the registry, and the mail
got such a letter into his hands and how he forwarded it. Of course,
efforts were made to make as few mistakes as possible which would
arouse Bormann. The result was that as much as possible was sent to
Bormann so that the reproach could not be made that he had been skipped.
Q. Perhaps we can clarify this by means of an example. The prosecution
introduced Document NG-558, Prosecution Exhibit 143.[412] This is a
personal letter which Thierack wrote to Bormann, dated 13 October
1942. In this letter the information is passed on that in the
extermination of Jews and Poles the administration of justice wanted to
give a helping hand. In the form in which it is submitted, this letter
is addressed personally by Thierack to Bormann. I am asking you whether
this letter went via your Group III-C, that is the legal division, or
whether Bormann later sent it to your legal division and thus informed
you about it?
A. Whether this letter was sent to Bormann too, by Thierack, I don’t
know. It did not come to Munich to Group III-C. I personally saw this
letter for the first time here when the document was submitted.
Q. We have another document here, that is NG-280, Prosecution Exhibit
70.[413] It is a letter which Lammers, who was then Chief of the Reich
Chancellery, sent to Bormann. It is a complaint about an inadequate
sentence regarding a Pole. This document contains several letters.
We are here concerned with the third letter with the address: “To
Reichsleiter Bormann.” I ask you to also make a statement in regard
to this whether the legal group or you personally had this letter, as
shown to you, put at your disposal.
A. This letter came to Bormann personally, and in the same way as
the preceding letter from Lammers to Bormann which was written by
him personally. Group III-C, Bormann-Lammers, was not informed about
this correspondence. I have to add something here. Bormann had, after
all, two functions. He was leader of the Party Chancellery and he was
secretary to the Fuehrer. He stayed almost exclusively in the Fuehrer
Headquarters. It was often difficult to find out whether Bormann acted
as leader of the Party Chancellery or as secretary of the Fuehrer. In
a case like the one here, Exhibit 70, certainly the Fuehrer exercised
criticism and to that extent Bormann then acted as the Fuehrer’s
secretary. He then referred the matter to the State sector via Lammers.
In addition, an exterior circumstance must be considered between
the Fuehrer Headquarters and the Party Chancellery in Munich; there
were thousands of kilometers. For some time the Fuehrer headquarters
was in Vinnitsa in the Ukraine. In the immediate proximity of the
Fuehrer Headquarters were the field headquarters of Lammers, that
is, of the Reich Chancellery. For purely technical reasons the mail
went immediately back and forth between the Fuehrer Headquarters and
Lammers’ field headquarters.
Q. Another interim question, Mr. Klemm. You characterized Bormann in
two capacities; one, as leader of the Party Chancellery, and secondly,
as secretary of the Fuehrer. This letter which I am just showing to
you, however, contains the designation Reichsleiter Bormann. Was that a
third capacity in which Bormann worked?
A. In contrast to other Reichsleiters, as far as I know, Bormann became
Reichsleiter, more or less, in title only. Goebbels, for example, was
a Reichsleiter too, because he was in charge of the Reich Propaganda
Office. On top of that, he was also Reichsleiter Goebbels, the Gau
Leader of Berlin. At the very moment in which Bormann became leader of
the Party Chancellery and in addition secretary of the Fuehrer, the
concept Reichsleiter did not signify a special office or a special
function any more.
Q. That is enough. Since you have described the geographical and
technical conditions in which the correspondence went as a rule, I now
want to ask you in principle, did you at all receive information about
that correspondence which went to Bormann to the Fuehrer Headquarters
or which went from Bormann from the Fuehrer Headquarters or which went
from Bormann from the Fuehrer Headquarters to other State offices or
Party functionaries?
A. That depended. There were several possibilities. Either Bormann
answered such letters immediately himself, or those parts of the Reich
leader’s office which were also in the Fuehrer Headquarters dealt with
them. I have already mentioned that sometimes up to three jurists
belonged to the Reich leader office who advised Bormann.
A certain proof of the fact that Bormann dealt with a matter himself
is the initials “Bo.” Very frequently we were not informed about such
matters, because often they were put in the files of the secretary of
the Fuehrer which did not concern us in the Party Chancellery after all.
* * * * * * *
Q. Mr. Klemm, you spoke about several possibilities concerning Bormann
receiving letters or sending letters. You said it all depended on the
circumstances. I now ask you to explain to the Tribunal further what
additional possibilities existed in order to clarify whether you were
informed about any measures taken by Bormann or not.
A. The second possibility was that Bormann wrote his decision or his
opinion on the margin of the letter and then gave it to the Referent
in the Party Chancellery and left it up to him to draft the answer in
accordance with the decision he had written in the margin. Whether the
answer to the letter then formulated was signed by Bormann himself, or
whether the Referent, his group leader, or the division chief signed
it, depended in each case on who signed the first letter.
Q. The documents which I just mentioned were all brought into close
connection with your person by the prosecution, apparently solely
because the Party Chancellery is mentioned on these documents. I
now come to Document NG-412, Prosecution Exhibit 77.[414] On this,
there is your name. The connection with your person is very clear
here. It concerns an approval that you gave to a draft of a law which
the Reich Ministry of Justice had drafted on order of the Party
Chancellery. The contents were retroactive application of regulations
concerning treason. I would like to ask you on the basis of what you
explained, was this approval given on your own decision or on Bormann’s
instructions?
A. I did not give this approval by my own decision. In the case of
drafts of laws in particular, Bormann always reserved the right to make
the decision for himself. In this case the letter concerned, which
the Ministry of Justice had, among others, probably also addressed to
the leader of the Party Chancellery, was returned from the Fuehrer
Headquarters. Probably on the margin it said “approved,” or “yes,” or
“in accordance,” those were the words which Bormann used; and since
in this letter of the Ministry of Justice a wish of the Fuehrer was
referred to which he had expressed already before in discussions, it
was quite clear for Bormann that he would agree, and in such a case I
could then sign.
Q. This letter of the Party Chancellery is dated 18 June 1942 and also
has the file number III-C; that evidently was issued by the legal
group. I would like to ask you now to describe somewhat more in detail
the sphere of the task of the legal group.
[_Recess_]
Q. We discussed Exhibit 77, that was the approval of the Party
Chancellery to a draft or law which was prepared by the Ministry of
Justice. I had asked you what matters in the legal group of the Party
Chancellery were dealt with by you in addition?
A. I want to summarize the tasks of the legal group briefly. First it
had to deal with laws and drafts and decrees of the Reich Ministry of
Justice, unless for reasons of their subject, they were dealt with by
another group, because that group appeared to be competent. Secondly,
penal matters based on the law on insidious acts, as far as on the
basis of legal provisions the approval of the chief of the Party
Chancellery was required for the prosecution. Thirdly, complaints from
Party offices or individuals against decisions by the courts. Fourth,
complaints from the administration of justice against interference by
Party offices into pending trials. Fifth, to observe especially civil
and penal cases which concerned the Party. Sixth, matters of legal
reform, and seventh, expert opinions in the field of the Party law.
Q. As for the first group, approval of laws and drafts, was that
approval of the Party Chancellery for drafts of law based on a legal
foundation?
A. I have already made statements concerning that question when I
explained why there was a Department III, the so-called state law and
constitutional law department in the Party Chancellery. The chief of
the Party Chancellery, on the basis of certain legal provisions in
the case of any law or draft or any decree was a minister who had to
participate in its drafting, that is to say, he had the same position
as a minister participating in legislation.
Q. In discussing the first part of your activities you made the
reservation that the legal group in the Party Chancellery dealt only
with those drafts which for reasons of their subject did not belong
within the competency of another group. Would you please elucidate to
the Tribunal what you mean by that?
A. First I have to make a more general reservation. It was not the task
of individual groups of Department III or of Department III itself to
display any political activity. The Party political elements connected
with a problem were to be dealt with by the political offices of the
Party. I had listed before the Reich Legal Office, the Office for
Agrarian Policy, the Office for Public Health and others. These offices
within the Party developed their policies through the Reichsleiters
who were in charge of these offices, and did that directly with the
Fuehrer. The groups of Department III, and above all not the Legal
Group, could not deal with the individually specialized matters to the
extent that it would have been necessary. I have already explained that
Group III-C comprised four to six officers. That group was balanced
in the Ministry of Justice by well over 200 experts. Our tasks--and
above all because each individual in that group considered himself
a representative of the thought of the Ministry of Justice,--were
to prevent difficulties which might arise by some legal arrangement
between the Party and the offices of the administration of justice. For
instance, in Group III-C, we always were very skeptical to any general
clauses which were contained in a draft and laws because such general
clauses are the pets of the layman, and he sticks to them because
that affords him the opportunity to criticize. That arrangement which
was as such provided by law that the chief of the Party Secretariat
always had the capacity of a participating minister, was not agreed to
by various sectors of the administration of the State, and thus, for
instance, Goering in his various positions which he held at the same
time, as Minister for Aviation, as Plenipotentiary of the Four Year
Plan, and as chairman of the Ministerial Council for the Defense of the
Reich, never stuck to it, and never submitted any drafts. Likewise, the
High Command of the Armed Forces never submitted the drafts of laws as
far as they concerned the administration of justice, penal regulations,
et cetera, to the Party Chancellery. The individual group, however,
the legal group could not independently deal with a draft, if problems
were dealt with in that draft which did not immediately concern the
legal group but in their essence concerned other ministries, for
instance, all questions of nationality, were dealt within Group
III-A. For instance questions of Poles and Jews, Group III-C, to cite
another example, in the field of law concerning hereditary estates,
could not decide independently. That was claimed by Group III-B, which
was in charge of questions of food, the Food Ministry, to which the
hereditary estate court belonged also. I believe these examples should
be sufficient.
Q. You had set forth that the various subgroups of III were offices
corresponding to the institutions of the State, that you would consider
the Ministry of the Interior as analogous to Group III-A. I ask you
now since you mention Poles and Jews, the problems of which were to
be dealt with by III-A, whether the purpose for that was that as far
as the organization of the State was concerned, the Ministry of the
Interior took a leading part in dealing with these questions?
A. Group III-A had dealt with these problems because it was the
equivalent of the Ministry of the Interior. It was dealt with there
only and if on the one side the Ministry of the Interior took the
leading part, then Group III-C had nothing to do with those matters at
all.
* * * * * * *
Q. Then, since you worked in the Party Chancellery, Document NG-151,
Prosecution Exhibit 204[415] was submitted in connection with you.
It is a proposal on the part of the Reich Minister of Justice of 3
August 1942, with the designation “Limitation of Legal Remedies in
Penal Matters for Jews.” On page 108 of the German text, a letter
is submitted which has the signature of Bormann. Next to Bormann’s
signature there is also the file note “III-C,” that is to say, the
symbol of the Legal Group [in the Party Chancellery].
I ask you to comment on that and to tell us whether you or your Legal
Group had anything to do with that matter.
A. To answer this intelligently, I have to refer to the entire document
submitted by the prosecution. The document comprises 25 pages, and that
letter from Bormann is put at the end. The entire procedure, however,
can be understood only if one puts these various documents in the
correct chronological order, for only then can one see how this entire
development can be subdivided into three phases.
On 3 August 1942, the Ministry of Justice distributes its first draft,
which is draft number 1. The letter of 13 August 1942 shows the
approval of the Reich Ministry of the Interior, with supplementary
suggestions. In the meantime, however, the Ministry for Propaganda
quite apparently, although there is nothing contained in this file
about that, has made counterproposals and distributed those to all
offices concerned. That can be concluded from the fact that on 13
August--that is to say, on the same day when the Ministry of the
Interior first approved proposal number 1 with certain supplementary
requests--on the very same day, the Ministry of Justice distributed
suggestions for draft number 2, at the same time referring to
suggestions made by the Ministry of Propaganda. That draft number 2
was approved on 20 August 1942 by the Food Ministry, which also stated
requests for supplementation in its field, that is, in the field of
civil administrative law. Then, on 9 September 1942, the chief of the
Party Chancellery states his approval, and in that letter also the
request is expressed that the suggested draft concerning a restriction
of legal remedies for Jews should be supplemented.
As for the second phase, dealing with draft number 2, there are two
events to be noted--one, a certain activity of the Reich Chancellery,
that is to say Lammers, who suggests to the General Plenipotentiary for
the Administration of the Reich, that is, the Reich Minister of the
Interior, that he should see to it that these suggestions are adjusted
to meet the requirements and then submitted.
And the second is a letter from the Reich Leader SS of 25 August 1942,
who suggests a conference regarding draft number 2. On 10 September
1942, the High Command of the Wehrmacht also states its approval, and
that second phase of developments ends with the result that the leading
part is transferred from the Ministry of Justice to the Ministry of the
Interior. The final conclusion of that phase is the letter from the
Plenipotentiary for the Administration of the Reich, that is to say,
the Ministry of the Interior to the participating supreme offices of
the Reich containing draft number 3. Now the third and last phase of
this development starts, and the procedure as submitted in documentary
form by the prosecution for more than half a year does not produce any
results as far as matters developed. In the documents submitted by
the prosecution the only further development is that on 3 April 1943
the Minister of the Interior writes to the Reich Chancellery, that is
to say, to Lammers and encloses a letter by Kaltenbrunner from the
police of 8 March 1943 where the demand is made that the Jews should be
completely removed from the administration of justice. These documents
then contain only two further notations of the Reich Chancellery of
6 April 1943 and of 21 April 1943. The first notation deals with a
conference between the Under Secretary Kritzinger on the part of
Lammers, Reich Chancellery, Stuckart on the part of the Ministry of the
Interior, and Klopfer for the Party Chancellery, the Party Secretariat.
And the last notice of 21 April refers to a conference of various under
secretaries from the Reich Chancellery, Party Secretariat, Ministry
of the Interior, Ministry of Justice, and Kaltenbrunner on the part
of the police. The result of that conference is what we designate as
the 13th decree amending the Reich Citizen Law. The Party Chancellery
letter from 9 September 1942 does only refer to draft number 2 of the
Ministry of Justice, that is the draft of 13 August 1942. The problem
of removing the Jews entirely from the administration of justice and
to declare them incapable of inheriting property, that problem was not
all under discussion at the time when that letter was written, and the
suggestions made in that letter do not represent any change against
the fundamental character of that draft. They supplement the draft
only to the legal systematic side. In as far as the Party Chancellery
suggests that legal remedies should be included, they are suggestions
of a minor weight compared to those that are already planned in the
draft. According to the draft, limitations were provided to appeals
and revision, that is, matters which are directed to the next higher
resort. Whereas in the suggestion for supplementation made by the
Party Chancellery legal remedies are referred to which are normally
directed to the same court in the form of a reminder or a complaint.
The next suggestion to limit the right of challenging a judge is the
same provision which is also part of the IMT charter. This letter of
9 September 1942 I did not draft. Besides since it was issued more
than 1 month after the letter of 13 August, other offices must have
participated. Who it was in Group III-C who drafted that letter and who
was the referent dealing with the matter I can no longer tell. I cannot
even recall ever having seen that letter such as Bormann signed it.
It is quite possible that I was away on a duty trip and that my deputy
signed it for me.
Q. I believe, Mr. Klemm, that that is sufficient.
* * * * * * *
Q. Then, concerning Poles, Jews, and members of the Protectorate,
Document 664-PS, Prosecution Exhibit 348,[416] was submitted, that
is a circular letter from Himmler with the classification of secret,
and was sent to all Reich authorities. Your initial is on that letter
because it was received in the Ministry and apparently came to your
attention. In this letter it is stated that posters such as “no Jews
permitted to enter public places and stores” should disappear. It was
no longer necessary to show such practice to the public because the
people concerned by evacuating and isolating them were no longer there.
I ask you, did that lead you to the conclusion that the Jews were to
be exterminated or already, at the time of this circular, had been
exterminated?
A. I would never have gotten a thought of that kind. I know nothing
about the places in the East. I knew that Jews lived in a city for
themselves in Theresienstadt near Leitmeritz. On the contrary, I
remember having seen series of pictures in magazines, I believe
pictures from Theresienstadt were shown of the Jewish mayor, of the
Jewish police, also of the baths and restaurants, and similar things.
Also, I believe from Warsaw, such pictures were shown in German
illustrated magazines. One could not gather any more from that circular
letter than that or conceive the thought that it had anything to do
with the extermination or anything similar to it.
* * * * * * *
Q. In addition, Document NG-900, Prosecution Exhibit 453,[417] was
submitted against you. This concerns a document which treated so-called
complaints of descent of Jews. The decisive question in this document
is whether you, from the letter which is contained in this document,
which was written by the chief of the SD and the Security Police, could
gain the conviction that Jews should be exterminated. If you have the
document in front of you--it consists of several letters--the first is
of 3 May 1944, there the chief of the SD writes to the Reich Minister
of Justice in this letter, and the subject is a request for information
about reports regarding Jews. Please comment on this.
A. In regard to the first question I can only repeat what I have
already stated in regard to Prosecution Exhibit 348. No such thought
ever occurred to me. Moreover, I only saw the introductory letter
of this document on which the Minister had written “V”--which meant
“Vortragsanordnung,” schedule of report. With that, the matter was
taken out of my sphere of activity.
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG[418]
_DIRECT EXAMINATION_
* * * * * * *
DR. KOESSL (counsel for defendant Rothaug): It has been
asserted that you had coupled together the Katzenberger and Seiler
proceedings in order to exclude the Seiler woman as a witness.[419]
What was the situation there?
DEFENDANT ROTHAUG: Under the German Code of Procedure, there
are always as many penal proceedings pending as there are defendants.
Under certain conditions, such penal proceedings can be tried together
for the purpose of uniform trial and decision. That is what we call
joinder of penal cases. That joinder may be decided by the court,
concerning cases which are pending with it separately. But such
joinder may be established by the prosecution itself by one combined
indictment. That was what was done in the Katzenberger-Seiler case. The
prosecution, by filing one indictment for both defendants, had already
established the joinder prior to the files reaching the court. The
joinder of the two cases was therefore neither due to a file prepared
by me, nor to a file prepared by the court.
Q. Would it have been possible for the prosecutor to proceed
differently?
A. Naturally. He could have filed separate indictments. The question
was merely whether that would have been correct from the technical
point of procedure.
Q. What are the legal provisions on which a joinder of penal cases is
based at the Special Court?
A. A joinder is based on article XV, section 2 of the competency order.
Q. When do the conditions exist for a joinder, such as demanded by the
law?
A. Such conditions can arise from all sorts of situations. They exist
in particular if one offense developed from another offense, and if the
judgment has to be based on the same facts. That was the case in the
Katzenberger-Seiler affair, which we have been discussing.
Q. What was the reason for the prosecutor to connect the two cases?
A. Both cases, as is proved clearly by the opinion of the court, had
to be decided on the basis of the same facts. Therefore, a joinder was
altogether natural and corresponded to the customary treatment such as
was applied in other cases as well.
Q. What was the legal nature of such joinder?
A. It was purely a measure of expediency.
Q. Is a defendant entitled to ask for not combining his case with that
of another defendant because in the case of a joinder he loses evidence?
A. The defendant does not have such a claim. According to the general
legal doctrine, which existed prior to 1933, a joinder is admissible
even if, as a result of a joinder, one codefendant can no longer appear
as a witness. But if it is decisive that the codefendant should appear
as the witness, the two cases can be separated after all so as to have
an opportunity to examine the codefendant as a witness. But that is
left entirely to the discretion of the court, and the defendant has no
claim to have that question decided in one definite way.
Q. When several penal cases are combined, does that mean that all
possibility is excluded to examine one of the codefendants in the same
proceedings as a witness? I would like you to supplement your previous
answer and to tell us whether it is possible temporarily to separate
proceedings.
A. Such temporary separation is allowed expressly by jurisdiction.
Therefore, during one proceeding, temporarily a separation can be
ordered. One codefendant can be examined as a witness, and after he has
been examined the case can be recombined.
Q. Did anybody at any time--be it the prosecutor, the defense
counsel, or the defendant--during the trial make a motion to separate
proceedings?
A. Such a motion was not made either at the trial or outside of it by
anybody. Not even the mere idea of doing that was ever mentioned, and
the reason was that at that time nobody regarded the joinder of the two
cases as a defect.
* * * * *
Q. In the case under discussion, was it likely that the chances of the
two defendants might be affected by joining their cases?
A. As I have stated before, the legal position of the defendants could
not be affected, and their chances were not affected either. If one
had thought that their chances might be affected, I think in that
case the two defense counsel would have made a motion to have the two
proceedings separated. If one wishes to judge the situation properly,
one has to bear in mind the following: that is to say, one has to
think of the situation such as it would have been if the Seiler woman
had not been a codefendant but a witness. In that case, she would
have made no different statements at the trial than she had made at
her interrogation under oath before the investigating judge, for she
made the same statements as a codefendant, and we had to discuss her
statements under oath before the investigating judge from every point
of view for the purpose of the verdict. What difference would there
have been, as far as our judgment was concerned, if she had repeated
the same statements at the trial in her capacity as a witness? The real
problems of the proceedings would and could not have been affected in
any way by that.
* * * * * * *
PRESIDING JUDGE BRAND: Were tickets issued for admission to
the trial?
DEFENDANT ROTHAUG: Yes, Your Honor.
DR. KOESSL: I shall come back to those tickets later. What
importance had to be attributed to the fact that a trial was held in
front of such a large public?
DEFENDANT ROTHAUG: Under the German Code of Penal Procedure,
the fact that the public is admitted to a trial constitutes one
guaranty that the proceedings will be conducted in an orderly manner.
Q. Did Katzenberger have a defense counsel?
A. Yes, he had.
Q. Was that defense counsel a Jew?
A. Yes, he was.
Q. Did the Seiler woman have a defense counsel, too?
A. Yes, she had.
Q. What sort of a man was the defense counsel for Seiler? Was he a
National Socialist, or what was he?
A. I knew him. He wasn’t a National Socialist for certain. My
impression was that he was entirely uninterested in politics and
devoted to his profession.
* * * * * * *
Q. Now, we’re going to examine the statements by the witness Seiler.
The statements by the witnesses Ferber, Seiler, and Dr. Baur[420] are
criticizing your method of conducting the Katzenberger case.
According to the testimony of the witness Seiler, you addressed the
audience and said--“The Jews are our misfortune. It is the fault of
the Jews that this war happened. Those who have contact with the Jews
will perish through them. Racial defilement is worse than murder,
and poisons the blood for generations. It can only be atoned by
exterminating the offender.” (_Tr. p. 1053_).
Did you make remarks of that kind, or of a similar nature, or what
exactly did happen?
A. That expression--“The Jews are our misfortune” or “It is the fault
of the Jews that the war happened,” or “Those who have contact with
the Jews will perish through them”--those expressions are well known
slogans from the Stuermer, which I think appeared in large letters in
every issue of the Stuermer.
PRESIDING JUDGE BRAND: Mr. Witness, the only question
before you is whether you used, in substance, the language which was
attributed to you. You may answer that question. We are not concerned
with who else used the same language.
DEFENDANT ROTHAUG: Neither on duty nor in my private life did
I use such generalizations, but the facts which have been discussed
here, and which were mentioned in that issue of the Stuermer,
concerning all that I would like to give my view on one point. That is
the question as to war guilt. I can remember more or less exactly--and
that idea is also mentioned in the opinion of the judgment in the same
way in which I expressed it at the trial. Naturally, it was not the
purpose of the trial to prove that it was the fault of the Jews that
war had broken out. The point was, however, this. As is known, both
defendants tried to make the situations which incriminated them appear
more harmless, as if their relations had been everyday matters. And
in that connection, I remember that I put it to Katzenberger that,
particularly here in Nuernberg, he must have known that such relations
were particularly dangerous even if the relations had been harmless,
because, ever since 1933, he had observed the developments, and then,
finally, war had broken out and the Jews were held responsible for
the war, and all these events should have caused him to be wise and
to abandon relations which were bound to endanger him, even if those
relations had been only harmless--and if they had been harmless it
would, after all, have been easy to abandon them. That thought of
which I made use by way of arguments, both at the trial and in my oral
opinion, that thought appeared in the Stuermer. It said, if I remember
correctly: “He also mentioned the fact that it was the fault of world
Jewry that war had come.”[421]
DR. KOESSL: Now, it has been alleged that in other cases too,
you addressed the audience. What were the speeches about? What was the
purpose of those speeches?
DEFENDANT ROTHAUG: I am charged with having addressed the
audience, particularly in connection with the Katzenberger case. In
addition to the generally acknowledged fact that, under the German
Code of Penal Procedure, trials have to be held in public, there is
also a fact that by the trial this general law consciousness should be
deepened--
PRESIDING JUDGE BRAND: We have extended beyond our time for
the recess. We’ll take 15 minutes’ recess now.
[Recess]
DR. KOESSL: Witness, you came to the explanation of the
connections where you have made the so-called speeches to the audience.
Will you explain the purpose and the connections for making these
so-called speeches?
DEFENDANT ROTHAUG: I base myself on the fact that the reason
for the trials being public according to the German rules of procedure
was that the conscience of law should be strengthened and that the
population should be educated in the meaning of the laws. Our sphere
dealt with entirely new legislation, new in consideration of the basis
on which it was founded and of its purposes; for that reason--and
of course one has to consider that this new legislation provided
severe and most severe consequences, and that makes it understandable
why I--and that was with approval of all interested offices of the
administration of justice--was of the position that it was necessary
to bring as quickly and as effectively as possible this legislation
before the population in order to warn them because that warning in a
certain sense is a justification of the severe sentence, particularly
the extent of the sentence; and that explains why I had the intention
to conduct my trials before the public and as many people as possible
and as broadly as possible. That also explains why it was not only my
intention to describe the bare legal facts but the offenses regardless
in what field they were committed and to explain them from the point of
view of the doctrine of the State and from the points of view of the
legal system and the political point of view. The guiding thought for
me was that it was our duty, and at the same time, our justification
before the public, to explain that the sentence pronounced in any
individual case was the direct consequence of the legislation provided
therefore. It has to be added that fundamentally according to German
rules of procedure, the sentence can only be based on the entirety of
the trial; that is to say, that all points of view which are concerned
with the penalty or the extent of penalty have to be discussed in all
details during the trial because that alone puts the defendant in a
position to recognize the main points which may be directed against
him; and I also want to emphasize that at no time were lectures made
for their own purpose, but that such statements were made in connection
with the testimony of the defendant or the witnesses at the time and at
the place where it seemed proper.
Q. Ferber charges you generally, and particularly, in the case
Katzenberger.
A. I intended to add, that it is therefore quite certain that at
that session I also stated my opinion concerning the problem of race
defilement on the basis of the doctrine of the State and on the basis
of the legal system, and on the basis of our political and legal
foundations. That I also discussed the danger in the manner that these
things were regarded at that time according to the legal situation, the
danger arising from the mixture of races to coming generations, that I
consider to be a fact. What words I used and what thoughts I may have
expressed in detail in discussing these matters, that, of course, I
could no longer tell today. But what I object to is the assertion that
these may have been statements of the level of the “Stuermer;” and with
absolute certainty I should like to exclude the possibility that in
that connection I demanded any physical destruction. That, according to
the law, would not have been possible. That, of course, based on the
fact of the war which went far beyond any racial point of view.
* * * * * * *
Q. The witness Seiler in her direct examination testified that she and
the defendant Katzenberger had denied under oath at various times those
relations. Was Katzenberger heard under oath?
A. No, he was not heard under oath. That was not admissible under
German law because German law holds that the defendant had to be
entirely free to use all possibilities for his defense. That is
considered a certain guarantee to aid in finding the truth.
Q. The witness Seiler also stated in her direct examination that the
judge, Rothaug, used the assumption of her guilt as the basis for the
entire conduct of the trial. The reason for that discrimination in her
opinion had been that Rothaug did not want to hear any answer. Did you
examine the witness Seiler thoroughly?
A. Of course, she was examined thoroughly, and I may point out--and
that can be found also from reading the opinion--that this was a
so-called case of circumstantial evidence, that a large number of
individual situations of more or less importance were compiled in
order to make it possible to reconstruct the circumstances which were
of importance for the evaluation; and it was always like that, and it
was no different in this Katzenberger-Seiler case, that I discussed
with the defendants every phase and every little detail; not only in
order to completely clarify any particular action, that of course, was
the main purpose; but beyond that it was of importance to establish
what the point of view of the defendants was, and how they described
matters; that is the reason why that matter took a day and a half,
and in addition to that, after the examination of every witness who
offered something new, again the two defendants were heard thoroughly
concerning the new situation. At any rate the evidence which was taken
as the basis for the judgment, was discussed in all possible detail.
* * * * * * *
Q. Among the judges concerned during the deliberations, was there any
doubt about the guilt of Katzenberger?
A. I remember the deliberations very well. That conference was as
peaceful as could be; for in the course of the trial, which lasted
a day and a half, the entire occurrence, as far as the facts were
concerned based upon the statements of the defendants and on what
the witnesses testified to, had developed into such a clear picture
that there could not have been any differences of opinion; and, after
a very short time--and I remember that very well also--we arrived
at a decision and actually started to write the judgment down, but
considering the importance of the case, we extended the time for
deliberations so that the impression should not be given that we wanted
to pronounce a hasty decision. There were no difficulties at all, the
reason being that the facts themselves were of compelling logic, and
that anything else which was the consequence of the facts just arose
from them logically and in the way one had to evaluate those things
at that time, and of course, we could not evaluate it based upon any
different philosophy.
Q. Which motions were made by the defense counsel?
A. I would like to say with certainty that one of the defense counsel,
without being able to tell who it was, made an attempt in the direction
of a lenient sentence, and he was trying to combat its evaluation as a
serious case, but there was no doubt left about the basic facts in the
case. That is the way I remember the case, and it must have been like
that; and that was also manifest by the calm deliberations where no
points of argument came in existence.
Q. Was any one of the associate judges of a different opinion
concerning the extent of punishment? Did any one of them vote against
the death penalty, for instance?
A. The core of the question from the very beginning was the following.
PRESIDING JUDGE BRAND: Let me ask you a question. Did all of
the judges vote for the death penalty? Answer yes or no.
DEFENDANT ROTHAUG: Yes, absolutely.
PRESIDING JUDGE BRAND: Next question.
DR. KOESSL: At that time, among the jurists around you--but
those who were not in direct contact with the case--were there any
discussions about that sentence?
DEFENDANT ROTHAUG: In no way at all. That sentence was never
criticized in any way or considered doubtful by jurists who were not
connected with the case which would normally be possible.
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHENBERGER[422]
_DIRECT EXAMINATION_
* * * * * * *
DR. WANDSCHNEIDER (counsel for defendant Rothenberger): We
come now to a new subject which plays an important part within the
scope of national socialism; that is, the Jewish question. Will you
please tell the Tribunal quite generally what your point of view is
concerning the Jewish question.
DEFENDANT ROTHENBERGER: Concerning the Jewish question, there
were in the NSDAP already before 1933 two factions which opposed each
other. One was the so-called Streicher wing which put the racial
problem in the foreground. The other wing was the so-called social
wing, led originally by Gregor Strasser. Gregor Strasser, already as
early as the end of 1932, went into open opposition, and in 1934 was
killed together with Roehm. Among the men who emphasized the beliefs of
that social group was Kaufmann. That was conditioned by the fact that
in Hamburg, of course, social problems played an important role. The
Jewish question did not play the same part in Hamburg as in many other
parts of the Reich. One reason for that was that on account of a large
Portuguese immigration in Hamburg, the connection to western Jewry
had been very strong for centuries; particularly the so-called good
old Hamburg families are greatly mixed by intermarriage. Furthermore,
it was due to the fact that the people of Hamburg are generally more
tolerant in their basic temperament.
Another indication of the attitude of the people of Hamburg to the Jews
was, for instance, that the display of the so-called Stuermer boxes
in Hamburg was prohibited by Reichstatthalter Kaufmann. I, of course,
officially and also privately was in close contact with Jews. I knew
the advantages and disadvantages of Jewry.
Q. Now, of course, it is known to you, Dr. Rothenberger, that the
Party program ambiguously states its position to the Jewish question.
I assume you knew the Party program at that time. Could you comment
on that as to what thoughts you had concerning the attitude the Party
would take to the Jewish question?
A. In the beginning of 1933, I believed that just as in many of the
Party platforms many points are made which later do not play an
important role. Gradually, however, I realized that the general line
became more severe. It is beyond doubt that any German under the
influence of propaganda considered a limitation of the Jews in cultural
and spiritual life absolutely required, and so did I. But what was
generally rejected in Hamburg was any method of violence, any economic
exploitation and any kind of hatred. As for the general line, such
as it developed gradually in Germany, I could not change anything
anymore. In each individual case of my personal and official sphere of
influence, individually and from the human point of view, I helped.
Q. In connection with this question, the pogroms against Jews of
November 1938 play a part. Will you please state to us what experiences
you have made of these pogroms and what your attitude was.
A. On the day before the pogroms--that is the night before--by way
of rumor I heard of the intention that Jewish shops were to be
looted. There again to obtain information I got in touch with the
Reichstatthalter Kaufmann who told me that he had asked for information
in Berlin because he had also heard about it, and he had already
alerted the Hamburg police too. He had posted them before the Jewish
shops so that nothing should happen, and in fact, in Hamburg nothing
did happen with the exception of a few individual cases. About that, in
the document submitted, NG-629--
Q. I refer to Document NG-629, Prosecution Exhibit 28[423] which has
already been mentioned.
A. It also mentions that due to the attitude of Reichstatthalter
Kaufmann, nothing happened.
Q. Will you please discuss now the question of the legal position of
Jews, as far as you had to do with it.
A. As for the legal point of view, of course in the course of years
many instances of conflict occurred to everyone; also to me. In a
meeting in Berlin about various legal questions negotiations were made,
and the result of these negotiations as far as it concerns questions
of civil law was passed on by me to the subordinate courts. As far as
matters of penal law were concerned, it was passed on by the General
Prosecutor at Hamburg. The opinion which the Ministry stated at that
time in matters of civil law was just about in accordance with my own
opinion.
Q. Here again we are concerned with Exhibit 28, which has already
repeatedly been mentioned; specifically the point of view of the
Ministry which Dr. Rothenberger mentioned and which he shared and
passed on to the subordinate officials can be found on the last page of
Exhibit 28.
A. If I may be permitted, I would like to point out that during
the same press conference I mentioned two further points; one the
question of sensational reports in the press about trials, where I
promised to get in touch with the competent agencies to see that such
sensational reports would have to cease; and the other concerning the
speed of signing the sentences. I pointed out that no pressure should
be permitted to be exerted on judges so that they should be given an
opportunity to work on their opinions in all peace and quiet.
* * * * * * *
Q. Dr. Rothenberger, we will now go over to another subject. Now we are
going to deal with the beginning of the war. I want to ask you about
the Jewish problem which we have already discussed. In what way did the
Jewish problem develop after the outbreak of the war, as far as your
opinion goes.
A. The outbreak of the war increased the difficulties of the Jewish
problem in Germany considerably. The situation became considerably
more acute, and in particular under the influence of propaganda. Under
that influence, naturally difficult legal conflicts arose as far as
the situation of a Jew in court proceedings was concerned. Previously,
as Dr. Schlegelberger emphasized, already there had existed separate
welfare institutions for Aryans and non-Aryans. There was the NSV
for the Aryans, and there were separate welfare institutions for the
non-Aryans. For the jurisdiction, that resulted in complete uncertainty
on the part of the judges as to the question whether a Jew can be
allowed to conduct proceedings without paying costs. There were courts
which granted that privilege; there were other courts that did not. I
considered that a uniform jurisdiction on these matters was necessary.
Naturally I was not uninfluenced by the situation then prevailing; and,
therefore, I supported a proposal to the Reich Ministry of Justice
that a uniform jurisdiction should be developed to the effect that
such privileges were not to be granted to the Jews. The importance of
those privileges concerning costs and nonpayment of costs has been
characterized by Dr. Schlegelberger who said that the State makes an
advance which the person concerned has to pay back, that is to say
he is not exempted from paying costs caused by court proceedings.
The prosecution in submitting evidence read out a sentence which is
supposed to have originated with me. I only want to correct the matter
to say that Document NG-589, Prosecution Exhibit 372,[424] shows that
that sentence is not mine, but was phrased by the Gau economic adviser.
The other exhibits which refer to that question are NG-392--
Q. Dr. Rothenberger, may I interrupt you for a moment so that we can
quote the correct exhibit numbers to the Court? They are Exhibit
373,[425] Exhibit 462,[426] and Exhibit 372. Would you please continue?
A. The only thing I can add is that it happened fairly frequently,
and that it appears altogether understandable that the Jews in order
to avoid having their property confiscated upon their emigration,
transferred their property to somebody else in a fake transaction.
Thus, the whole problem became more complicated and more difficult for
the courts.
Q. In what way were you concerned with curtailment of Jewish legal
rights which emerged in the subsequent period?
A. I had to deal with that question once again in the spring of 1943.
At the end of April, Thierack one day asked me to go see him and told
me that on the same day a discussion would take place, a so-called
conference of under secretaries. That conference was to be held at the
Reich Ministry of the Interior. I believe I had no knowledge of those
developments until then.
Q. May I interrupt you, Dr. Rothenberger? At the moment we are
concerned with Document NG-151, Prosecution Exhibit 204,[427] which Dr.
Rothenberger wants to discuss. This Exhibit 204 is composed of a number
of letters in which a draft on curtailment of legal means and legal
recourse for Jews is discussed and in which various ministries give
their views. Will you tell us, please, whether you had anything to do
with that matter?
A. Until that conference I had nothing to do with the previous history.
That is due to the fact that the first draft originates from a time
before I had assumed office. It is dated 3 August 1942, and it is
signed by Dr. Freisler. The second draft is dated 13 August, and that
also was before I assumed office. As this was a matter concerning
penal law I was not informed about the developments during the
subsequent period. As I can see from the documents now, in September
1942 the so-called GBV, the Plenipotentiary General for the Reich
Administration--that was the Reich Minister of the Interior--was in
charge of the drafting and conference which I have mentioned took place
at the Reich Ministry of the Interior.
Q. Would you tell us something about the course of the conference of
April 1943?
A. Thierack, before I went to the conference, handed me a draft. That
was the draft by the GBV of 25 September 1942. That was already 6
months old by that time because the conference took place in April
1943. I was annoyed anyhow that I was now to deal with a matter the
previous history of which I did not know. I had a look at the draft in
Thierack’s office and when I had read it, I said to him that I was
against such far-reaching restrictions.
What seemed embarrassing to me, in particular, was the provision that
if the Jew was not to swear an oath, he was yet to be punished for
perjury. Thierack said to me that doesn’t matter. In his somewhat
brusque and curt manner he said, “You will have to go there, for I am
the minister and I cannot attend a conference of under secretaries.”
That, as a matter of fact, was not the custom. I went to the Reich
Ministry of Interior. To begin with, I maintained reserve, because I
had not dealt with the matter beforehand. Then I heard from the others
who were present there that they too were against such an ordinance.
Thereupon, I said that that was my personal opinion, too. Of course, I
could not say as to the minister’s decision. He was in favor of it, as
he had told me beforehand.
Then the provisions of that draft were dropped. Only one person who was
present objected; that was Kaltenbrunner. Kaltenbrunner said he had to
attach a decisive importance to at least two provisions becoming law.
He was referring to 2 provisions which, in effect for some time, had
already been applied, which however, required subsequent legalization.
One provision was that the property of a Jew who dies goes over to the
Reich. He said--as is evident in detail from the exhibit--that until
now Jewish property in the case of death had been regarded as so-called
property of an enemy of the State and had, therefore, been confiscated
all along. But he would like to have a legal provision, because that
would constitute a technical administrative simplification.
That provision, as I see from the file, had not been incorporated into
the draft before by the Reich Ministry of Justice, but by the Reich
Ministry of Interior. It appears for the first time in the draft of 25
September 1942. The Ministry of Justice, thus, did not deal with it.
The second provision--
PRESIDING JUDGE BRAND: Would you mind telling us what happened
to that provision?
DEFENDANT ROTHENBERGER: Yes. That provision did become law
afterward. Yes, I meant to say that.
The second provision which Kaltenbrunner wanted to become law and
considered necessary was a provision, which has already been discussed
here, and it concerned handing over the penal jurisdiction over
Jews from the administration of justice to the police. As far as I
was concerned that resulted in an entirely new situation, for that
provision was not contained in the previous draft. I felt I could not
assume any responsibility for such a provision, all the more so as I
had no formal competence for penal matters. I would have to report to
the minister as I had been requested by him to do.
DR. WANDSCHNEIDER: Did you make a report to Dr. Thierack?
DEFENDANT ROTHENBERGER: I went to see Thierack on the same
day, and I told him that he had now for the second time confronted me
with a very embarrassing situation, by bypassing me in a fundamental
question of the administration of justice which did not concern me
formally, but which concerned me as a jurist and as a human being. I
could not assume the responsibility and I offered him my resignation.
Thierack was very angry and said, “I shall decide the day when you
will leave the office.” In saying that, he referred to the compulsion
to which all of us were subject in time of war, that is to say, the
compulsion of not being able to leave our service voluntarily.
He then added ironically, “For the rest--in the future you will have
nothing to do with penal matters even when I am away for I have already
asked Lammers to appoint a second under secretary,[428] and I shall
get some help that way.” I mentioned these facts briefly in another
connection this morning.
Subsequently I had nothing to do with the ordinance. I merely read
that later, on the first of July 1943 with both provisions; it took
effect. I felt unfree, and from that time on I stuck all the more to
the one task, which still remained to me, that is, the task of the
administration of justice proper; the strengthening of the judiciary.
* * * * * * *
_CROSS-EXAMINATION_
* * * * * * *
MR. KING: Dr. Rothenberger, the document which has been placed
before you is NG-1656 [Pros. Ex. 535].[429] It is an information for
the Fuehrer report. I would like to, with your concurrence, read it.
You say--“After the birth of her child a full-blooded Jewess sold her
mother milk to a pediatrician and concealed the fact that she was a
Jewess. With this milk babies of German blood were fed in a nursing
home for children. The accused will be charged with deception. The
buyers of the milk have suffered damage for mother’s milk from a Jewess
cannot be regarded as food for German children. The impudent behavior
of the accused is an insult as well. Relevant charges, however, have
not been applied for, so that the parents who were unaware of the true
facts need not subsequently be worried.”
Do you recall the origin of this particular document?
DEFENDANT ROTHENBERGER: I do not remember the facts. It
is quite impossible that I wrote this, because I never drafted the
Fuehrer Information. I do not even remember whether it ever came to
my attention later. I ask to be shown the original of that Fuehrer
Information.
Q. I will be very happy to do that, Dr. Rothenberger. Is that your
initial?
A. That shows that I have seen it later, but not at all that I was
the author. It can be seen from the original, naturally, that the
Fuehrer Information had neither a date nor a signature and the Fuehrer
Information also shows that there is a notation on it “to the Under
Secretary”--for information, that means. As I can see from the initial,
it apparently came to my attention without, however, identifying myself
in any manner with the contents of that Fuehrer Information.
Q. Have you finished, Dr. Rothenberger?
A. Yes.
Q. Your feeling, of the moment, is that you had nothing to do with the
authorship of this document?
A. I consider it quite impossible that I would have identified myself
even at that time with such an opinion.
PRESIDING JUDGE BRAND: I have a question of information. Would
your initials have been placed on it before or after the distribution
of the document?
DEFENDANT ROTHENBERGER: Whenever such Fuehrer Informations
were sent out--and I cannot see that that was the case--then they were
afterward brought to my attention.[430]
* * * * * * *
EXTRACT FROM THE TESTIMONY OF DEFENDANT OESCHEY[431]
_DIRECT EXAMINATION_
* * * * * * *
DR. SCHUBERT (counsel for defendant Oeschey): I am now coming
to the subject of violent criminals and the first case I want to refer
to is the case of Kaminska and Wdowen. The prosecution introduced
Exhibit 201, which included extracts from the official files.[432] The
prosecution also introduced affidavits, Prosecution Exhibits 229, 235,
and 635.[433] Finally there is the witness Gros[434] who was heard on
those cases (_Tr. p. 2828_). Please comment on it.
DEFENDANT OESCHEY: The account given of that case by the
witnesses who were heard on it gives the impression as if Kaminska had
been convicted merely for having thrown that stone, but that was not
the case.
What was of great significance were the events which had preceded that
attack which are not mentioned by the witnesses, but which were the
factors which made that case so grave that led to its being evaluated
as the crime of a violent criminal.
The witness, in giving an account of that case, omitted to mention
that the offense began with an act of blackmail committed by the two
defendants for they approached their employer, whose name was Gundel.
He was an old weak man. They asked Gundel for money to which they
were either not entitled at all or to which their title was extremely
doubtful. And when Gundel asked that they should give him some more
time, they tried to force him to give them the money by attacking
Gundel, that is to say, the defendant Wdowen attacked Gundel and
slapped his face. That explains why Private Wanner appeared on the spot
and intervened. That factor, too, was omitted by the witnesses and that
is why it was not made clear that Wanner came to the aid of Gundel and
in doing so Wanner limited himself to asking the two defendants to
leave Gundel’s room. But the witnesses omitted to mention that the two
defendants now assaulted Wanner who after all had behaved absolutely
correctly, and Kaminska when Wanner had been able to ward off the first
attack took up a hoe and tried to attack Wanner with that hoe, and
Wanner was only able to evade that blow by showing presence of mind and
closing the door which happened to be between him and Kaminska. Shortly
after Kaminska threw a stone--
PRESIDING JUDGE BRAND: Wait a minute. If I remember correctly,
you are merely reviewing now the findings which are contained in the
transcript of the case and which is in evidence. We have examined that.
DEFENDANT OESCHEY: I merely wanted to explain that the whole
of that action did not consist of isolated facts but that it is
necessary to evaluate all those facts together in order to comprehend
the legal evaluation of the offense as a whole.
DR. SCHUBERT: Witness, I now ask you to tell us what was the
nationality of those two defendants.
DEFENDANT OESCHEY: Wdowen’s nationality I am afraid I can’t
remember. The Kaminska woman was a Pole. Anyway, I don’t think Wdowen
was a Pole.
Q. Well, what was he?
A. He was a Ukrainian.
Q. On the basis of what provision did the prosecution file its
indictment?
A. The prosecution filed an indictment on the basis of part I, section
4, Number 1 of the law against Poles.[435]
Q. Against whom?
A. Against both defendants. If I am right--well, I am not quite sure
whether my memory serves me well--(document handed to witness). Against
Kaminska the indictment was based on part I, article 4 of the law
against Poles and with Wdowen it was based on a crime of having aided
in somebody else’s crime, articles 4 to 7 of the law against Poles.
Also she was convicted on the basis of having offended against article
4 of the public enemies law.
Q. You saw that in the official court files?
A. Yes, I saw that from the original files of the Nuernberg Special
Court, SG 256/43.[436]
Q. Both the witnesses Pfaff and Gros today draw back from this
judgment.[437] Gros said that he voted against it. Pfaff wasn’t clear
in what he said about it. My first question to you is this. Did you
in any other case announce a judgment without having had at least one
associate agree with your view, as provided by law?
A. No, I never did that.
Q. Did you force Gros and Pfaff to agree with you in passing the death
sentence on these defendants?
A. In this case they were as free in their decision and in their
opinion as I left them in every other case.
Q. What did the court say of the offense against the woman, Kaminska?
Was the decision in accordance with the indictment?
A. No. The court did not convict Kaminska under article 1, section 4,
No. 1 of the law against Poles and among us judges there was a fairly
long discussion on that point. That is to say, we debated the question
as to whether the offense of Kaminska could be sentenced under the
provision of the law against Poles which I have just mentioned. As
far as I remember the associate judge, Pfaff, was inclined to answer
that question in the affirmative. Gros, as well as myself, however,
had doubts about that. That legal provision assumes that the violent
crime was directed against a member of the armed forces in which case
the death sentence becomes mandatory. But in view of the entire facts
of the case it appeared doubtful whether Kaminska, in committing her
offense, had realized at all that the person she was attacking was
a member of the armed forces. According to the facts, that element
did not play a part. In the view of Gros and myself, therefore, the
elements needed for convicting a defendant under part I, section 4 of
the law against Poles were lacking. The further examination had to
discover whether the offense was to be sentenced under article I of
the decree against violent criminals of 5 December 1939.[438] That
question, too, we debated at great length and that is a point which
I remember. We scrutinized quite a number of decisions made by the
Reich Supreme Court and studied a number of commentaries. As far as I
recollect, neither of the associate judges had any doubts about that
view.
With these Reich Supreme Court decisions the legal questions had been
clarified beyond all doubt.
Q. Witness, is it correct that Kaminska was not convicted under the law
against Poles?
A. Kaminska, as the law against Poles prescribes in paragraphs II and
III, was convicted under the decree of 1939, the decree against violent
criminals, which applied to all violent criminals in Germany, and she
was convicted under that law as concerns the question of her guilt as
such and as concerns the sentence.
Q. The witness Gros testified that she had been convicted for racial
and political reasons. What do you have to say to that?
A. That is altogether untrue. The decision was based solely on the
logical application and interpretation of the law in accordance
with the decisions of the Reich Supreme Court while taking into
consideration the particularly difficult and dangerous conditions
prevailing in the rural districts in wartime. Such points of view as
those of race and biology and whatever else you may call them, as I
pointed out yesterday, played no part whatsoever in any of my decisions
and judgments.
Q. And you will now tell us something about the Wdowen case. The
witnesses Gros and Pfaff evidently tried to minimize that offense. What
do you have to say to that?
A. The facts of the case can be seen from the judgment which is
available to the Tribunal, and I therefore need not to go into any
detail. Apart from the fighting and the aid given by Kaminska, this was
a very violent and altogether unusual attack against the policemen; it
was a kind of attack on the policeman who had arrested the Kaminska
woman, and Wdowen was trying to get the policeman to release his grip
on Kaminska. Gros and Pfaff as witnesses disputed that fact; one can
only refer to the fact that Wdowen himself never disputed his own
intentions and his motives.
Q. What was the legal evaluation of the Wdowen offense?
A. That offense by Wdowen was considered by the court as a crime
under article IV of the decree against public enemies[439] and the
indictment had given the same evaluation. I should like to point out
that assaults of that nature against police officials ever since the
beginning of the war, and that is by all courts who tried such crimes,
had been sentenced under the same provisions, that is to say under
article IV of the decree against public enemies. As a rule, the Wdowen
case is by no means an exception. The need to protect particularly
rural districts and the need which became greatly increased due to the
wartime conditions, and such need for protection was due to the fact
that the police was very short of staff, and, because of all that, an
attack of that kind on the police--who worked under very difficult
conditions--always resulted in a very severe penalty.
Q. Was the law against Poles applied in the Wdowen case?
A. No, it wasn’t. Only article IV of the law against public enemies.
Q. Was the Wdowen case the subject of differences of opinion at the
consultations?
A. As far as I remember, it wasn’t.
Q. Did the prosecution consider both defendants as meriting the death
sentence?
A. The prosecution from the very beginning considered that the death
sentence should be asked for both defendants, and accordingly, it
informed the Reich Ministry of Justice before the indictment was
filed. The Reich Ministry of Justice concurred with the view of the
prosecution and approved it.
DR. SCHUBERT: I am now passing on to the next case of violent
criminals.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ALTSTOETTER[440]
_DIRECT EXAMINATION_
* * * * * * *
DR. ORTH (counsel for defendant Altstoetter): Do you remember
Prosecution Exhibit 204, Document NG-151?[441] That document is
concerned with the events which lead up to the 13th decree concerning
the Reich Citizenship Law.[442]
DEFENDANT ALTSTOETTER: Yes.
Q. In article II of the draft, it was provided that when a Jew died
his property was forfeited to the Reich and that for non-Jewish heirs
and persons who were entitled to alimony, a hardship clause should be
added, is that correct?
A. Yes.
Q. The treatment of hereditary provisions according to the plan for
the distribution of work was to be dealt with by Department VI of the
Ministry of Justice.[443] In connection with the intended contents of
the provisions in article II of the draft, could that not justify a
conclusion that you and your department had something to do with that
decree?
A. No, the order that Jewish property was to be forfeited to the Reich
in case of death of a Jew was not a hereditary ruling. It was a matter
of police confiscation and that concerned only the Ministry of the
Interior and only that Ministry was responsible. That is evident too
from the document itself and that from the final draft, no, not the
final draft, the draft before the final draft, which shows that the
provision of article II, section I, originated with the Ministry of the
Interior.
Q. I am now going to show you the text of the 13th amendment of the
Reich Citizenship Law. Please have a look at article II of the decree.
On the basis of this provision, do you have further indication that
Department VI did not have anything to do with the promulgation of this
decree? A. Yes, the wording of these provisions, already in article I,
because if Department VI, I mean the section that dealt with hereditary
law, had had anything to do with this decree, they would have chosen
the version which existed in the civil code for hereditary rights of
the State [Fiskus][444] which is provided there for special cases. I am
referring to article 1936 in the civil code, which has always existed.
Furthermore, the provision under article II shows that hereditary
rights of Jews and non-Jews, [benefiting from the will] of a deceased
Jew as such were not affected. Otherwise, one could no longer have
spoken of persons entitled to inherit. According to that provision,
or rather in spite of that provision, for example in the case of a
mixed marriage, the Jewish partner of the marriage could be or become
heir to the non-Jewish partner. In the case of hereditary settlements,
provisions would have had to be made concerning the rights of third
persons, that is to say, non-Jewish subsequent heirs. Furthermore,
we would have had regulations concerning the legal validity of
transactions among living people, concerning the part of the estate
not comprised by inheritance regulations. Section II also mentioned
non-Jewish persons entitled to receive support from the deceased,
although generally in the case of death any obligation to look after
the maintenance of third persons comes to an end.
Q. If Department VI had had anything to do with the 13th decree, what
Referent of the Department would have dealt with it?
A. Ministerialdirigent Dr. Hesse, Ministerial Counsellor Rexroth, or
Ministerialdirigent Dr. Stagel would have dealt with it in that case.
Q. Did Department VI have anything to do with the handling or carrying
out the 13th decree?
A. No.
Q. Did you or Department VI at a later time have anything to do with
the handling of Jewish hereditary law?
A. Yes, in 1944 the Minister of the Interior approached the Reich
Ministry of Justice with a request concerning an executory order of
the 13th decree, to incorporate in it provisions, which were to change
or amend article II of the Reich Citizenship Law. The ministry of
the Interior had recognized that article II had certain defects, and
therefore asked us to find a solution concerning the hereditary law.
I objected to this request from the Reich Ministry of the Interior,
although the Minister of Justice was of different opinion.
Q. Do you know how that matter developed further?
A. As for the details of the subsequent development I do not remember
them, but one thing I remember for certain, Hesse, with my consent,
when Thierack the Minister of Justice had declared himself ready to
collaborate in the preparation of this executory order, contacted the
competent Referent of the Ministry of the Interior, and convinced
them that the provision, purely technically, for the Reich Ministry
of Interior, amounted to a basic change of the previous decree, that
is to say the 13th decree. He also told them that we didn’t want to
have anything to do with this matter. The Ministry of the Interior
then withdrew its request, and I was told by Hesse that the matter
of a Jewish hereditary law would now be dropped. In effect, an
executory order in connection with the 13th decree concerning the Reich
Citizenship Law was promulgated on 1 September 1944, and that by the
Ministry of the Interior alone without any participation of the Reich
Ministry of Justice and without incorporating the provisions concerning
article II of the 13th decree, which had originally been requested.
Q. In summing up, Witness, I should like to ask you, is it correct
that Department VI, during your term of office, did not participate in
the making and carrying out of laws concerning confiscation of Jewish
property and that during that time legal provisions about the exclusion
of Jewish hereditary rights were not issued?
A. Yes, that is true.
PRESIDING JUDGE BRAND: May I ask you concerning that. I am
wondering if I have the correct understanding of your testimony. Do you
intend to say that this 13th decree did not change the previous law of
inheritance, the rights of inheritance, but that the only effect was to
provide for police confiscation, is that right?
DEFENDANT ALTSTOETTER: Yes, yes, quite. That is my opinion.
Q. Well, was it your opinion that the provision for police confiscation
was invalid?
A. Invalid? Invalid, no, not invalid.
Q. The courts which had to do with matters of inheritance in general
were courts with which your department had dealt, were they not?
A. Yes, Your Honor.
Q. Well, when a question of inheritance under the general law came
up in the courts in which they were confronted with this 13th decree
concerning police confiscation, what did the courts do?
A. I got to know of only one single case which may be connected with
this problem, and I am thinking of a case of recognition of the right
of subsequent inheritance. The district court of appeals and the
seventh civil senate of the Reich Supreme Court at the time decided
that the right of subsequent inheritance remained legal and that
regardless of the provisions which had been issued in connection with
the Jewish problem, the estate, if a case of subsequent inheritance
occurred, would have to be passed on to the subsequent heir. Other
cases, I do not remember.
Q. Was that the equivalent or did it amount to holding that the decree
for police confiscation was invalid?
A. I am sorry. I did not understand.
Q. The Supreme Court apparently refused to apply the provisions of the
decree for police confiscation, did it not?
A. I can’t say for certain. If I remember rightly the Reich Supreme
Court, concerning the question of the validity of that decree did not
express its opinion at all.
Q. Well, it didn’t enforce the decree, did it?
A. No, the Reich Supreme Court said, the subsequent heir who comes
after the immediate heir is not affected by that decree, and therefore,
his rights remain his rights.
Q. And who was the subsequent heir? Was he a Jew?
A. All I remember is his name. Whether he was a Jew I don’t know, but I
don’t think he was. Probably he was non-Jewish.
Q. Well, what was your opinion as to what a court could do when the
law of inheritance provided that one person should receive the Jewish
estate and that the decree for police confiscation provided that the
property should be confiscated?
A. In practice it was like this. The law of inheritance remained as it
was from the point of view of legal theory; but the property left by
a Jew which was forfeited to the Reich when the Jew died, however, no
longer existed.
Q. It existed. You don’t mean it vanished in the air? You mean it was--
A. No, that is to say, it had now gone to the police or to the finance
office, they had now taken into their hands the property left by the
Jew.
Q. Then I take it in practice the courts did not enforce what you have
stated would be the valid law of inheritance?
A. I assume that such cases did not come before the courts.
Q. Well, didn’t matters of inheritance in general as to the Germans
come before the courts?
A. Yes, yes they did.
DR. ORTH: I think that is all.
* * * * * * *
DR. ORTH: Please explain briefly to the Tribunal what one
understands under German law by “matters of descent.”
DEFENDANT ALTSTOETTER: The fact that from the biological
point of view a certain man has fathered a certain child is under
the German civil code, the decisive criterion for the status and the
legal position of the child, and therefore, also for the rights and
claims of such a child. However, as we know, it is frequently difficult
to establish the true biological descent of a child, and it was
particularly difficult at the time of the promulgation of the civil
code. Pursuant to the achievements of biological science, the German
legislator had established certain legal suppositions concerning the
legal descent. On the basis of those provisions the biological descent
and the legal descent not infrequently appeared to be different.
As science progressed, in particular in the field of biochemistry,
hereditary biology, and anthropology, after the civil code had come
into force, more and more reliable methods of science were discovered
in order to prove or at least exclude biological descent of a child
from a certain father. As a result, litigations between father and
child became more and more frequent concerning the true biological
descent, that is to say, concerning the question as to whether the
legal father was also, biologically speaking, the child’s father.
Under German law, all those cases of litigation are described as
matters of descent. A partial complex is formed by those cases where
Jews and persons of mixed descent, in the majority already adults,
wanted the matter clarified in a court for themselves or their progeny,
that contrary to the legal supposition, biologically and consequently
also legally, they were not--or, at any rate, not to the extent that
had been assumed--the children of a Jew or a person of mixed descent.
* * * * * * *
PRESIDING JUDGE BRAND: Could you tell us in a few words what,
if anything, your Department VI had to do with matters pertaining to
descent cases such as you have described them?
DEFENDANT ALTSTOETTER: Those descent cases played a great part
from the point of view of my department exercising supervision. I shall
revert to that matter quite briefly.
Q. Over whom or over what did you exercise supervision?
A. The Ministry of Justice, because of the treatment to be accorded
to such descent cases constantly received complaints, in particular,
complaints stating that these proceedings never made any progress.
Furthermore, and I shall revert to this, too, we received complaints--
Q. That doesn’t answer my question. I am sorry to interrupt you. Your
department exercised supervision in matters pertaining to descent. Over
whom did you exercise supervision?
A. We had that supervision over the courts and over the public
prosecutors.
* * * * * * *
DR. ORTH: Witness, will you please comment again on Exhibit
453?[445]
DEFENDANT ALTSTOETTER: Here I have to say first, briefly, that
the descent cases which I have just mentioned, especially the right of
the prosecution to raise charges in descent cases, since the so-called
laws concerning Jews were issued, were used as a means for Aryanization
as we called it. In cases, that is to say, where a man who according to
the law was considered to be a Jew was of the opinion that he was not
to be considered a Jew, he himself filed a claim for the establishment
of the fact that he was not a Jew, that is, that he was not a
descendant of a Jew. Or if his right to file that claim or the right
of his father to do so no longer existed because the term to do so had
expired, he went to the public prosecutor to make the public prosecutor
file this claim. The latter was the case when a suit was filed in
order to challenge the legality of a marriage. Now in cases where
these claims were filed in the course of the war, particularly during
the last years of the war, considerable difficulties arose. I only
want to mention two, but there were more of those. One was the lack
of experts in the field of genetics which was caused by the war. The
other reason was the thing that had occurred with the courts in Vienna.
In other courts it did not occur, as far as I know. There in Vienna a
particular difficulty arose owing to the fact that the police, as far
as Jewish witnesses for these descent trials were concerned--in most
cases it was a question of so-called witnesses for the investigation or
witnesses for the purpose of comparison--that the police, as I said,
for reasons of security had removed these witnesses and now refused to
produce them or to release them. That can be seen from the letter of
the police of 3 May 1944, which is in this exhibit. Objections against
the attitude of the police which were raised by the subdepartment
chief, Ministerialrat Rexroth, in the course of a conference with a
Referent, were only successful to the extent that the police consented
in exceptional cases to produce witnesses if the Reich Minister of
Justice expressly demanded that. Moreover, the police referred to the
lack of means of transportation and escort personnel caused by the war.
With matters as they stood, the Reich Ministry of Justice could do
nothing else but to bring them to the attention of the courts in Vienna
through the president of the district court of appeals. For the people
concerned who desired to carry out by that suit, as I have called it,
an Aryanization, the fact that these witnesses were not produced as
a rule did not amount to any disadvantage. The persons concerned on
their part, either if they had instituted the proceedings themselves in
their own interest or if they had requested of the public prosecutor
to institute proceedings, had themselves presented to the public
prosecutor evidence for their assertion that they were not descendants
of a Jew or a person of mixed Jewish descent. And if the court could
not produce the expert opinions of geneticists which officially had to
be produced and for which these witnesses for the purpose of comparison
were needed, then the court could do nothing else but on the basis
of the evidence which the Jews concerned had submitted, to decide,
and that this evidence was in favor of the person filing the claim is
obvious. And to that the remarks in Exhibit 453 refer, that one had to
put up with it if in this manner the intentions to cover up for the
true descent could not be prevented.
Q. Witness--
PRESIDING JUDGE BRAND: Let me ask you this. Concerning these
claimants suspected of being Jews but claiming to be Aryans, how far
back did they have to trace their ancestry to prove that they were
Aryans?
DEFENDANT ALTSTOETTER: They were not compelled to go far back.
It sufficed to prove that either one of the parents was not Jewish,
and if that could not be proved, they also could refer to the fact that
other ancestors of theirs were not Jewish. The question as to whether a
person was a Jew or was not a Jew was laid down in the meaning of the
Nuernberg laws, these laws and the decrees to carry out these laws. But
the suits themselves were not concerned with that, but subsequently the
main thing was whether--
Q. Did they have to prove that their grandparents were not Jewish?
A. Mr. President, we have to distinguish here--
Q. Just tell me yes or no first, and then you may distinguish. Here
is a man who claims he is an Aryan. He wants to prove it. What of his
ancestors must he prove were not Jews? Can you answer?
A. Framed in this way, as far as these suits were concerned, I cannot
answer the question because as far as these suits were concerned that
question was of no importance.
Q. Was he an Aryan if his grandfather was a Jew?
A. He had two grandfathers and two grandmothers.
Q. Yes.