laws, which were only of interest before the administrative authorities
and not for these trials, the distinction was made whether he was
one-eighth, one-fourth, or one-half Jew, that is to say, a person of
mixed descent of that degree, or whether he was a full Aryan. But I say
that that is a question which for carrying out these descent cases was
of no importance.
Q. Will you tell me then, and do it briefly, because I know you can,
what did the person have to prove in order to establish in a descent
case that he was an Aryan?
A. It was established, Mr. President, that contrary to the legal
assumptions, he was not the descendant of that and that father. Nothing
else.
Q. That is, that he was not the descendant of his purported father.
A. Of the purported father according to the legal assumption.
Q. That is, if the father was a Jew.
A. If the father was a Jew.
Q. Then he had to prove he was a bastard. Is that what you mean?
A. Yes. If it was at all a question of legitimacy. There were such
cases of descent also outside of marriage, illegitimate. These descent
cases were not restricted to Jews. There were not at all any special
regulations for Jews.
* * * * * * *
3. NATIONALS OF THE WESTERN OCCUPIED COUNTRIES--
THE NIGHT AND FOG DECREE
TRANSLATION OF DOCUMENT 671-PS
PROSECUTION EXHIBIT 304
LETTER FROM KEITEL, CHIEF OF ARMED FORCES HIGH COMMAND, TO MINISTRY OF
JUSTICE, 12 DECEMBER 1941, TRANSMITTING HITLER’S NIGHT AND FOG DECREE
AND ITS FIRST IMPLEMENTATION ORDER; INTEROFFICE MEMORANDUM REQUESTING
TRANSMITTAL OF THE LETTER TO DEFENDANT SCHLEGELBERGER
Chief of the Supreme Command of the Armed Forces
14 n 16 WR (I3/4)
No. 165/41 g
(When answering, please refer to above file number, date and
subject.)
Berlin W 35
12 December 1941
Tirpitzufer 72–76
Telephone: Local: 218191
Long distance: 218091
12/Hz
[Stamp] Secret
To the Reich Minister of Justice
Attention: Under Secretary Dr. Freisler
Subject: Prosecution of criminal offenses
against the Reich or the occupying
power in the occupied zones
3 enclosures
With regard to the oral conversation between Under Secretary Dr.
Freisler and the chief of my legal section,[446] I enclose herewith
a decree of the Fuehrer and Supreme Commander of the Wehrmacht of 7
December 1941[447] and an order for its execution of the same day.[448]
I agree with the opinion of the State Secretary that the execution of
the Fuehrer decree necessitates a close cooperation between the Reich
Ministry of Justice and the Supreme Command of the Wehrmacht.
I instructed my officials to assist your agencies in every respect. I
ask you to settle the question regarding the manner of imprisonment in
your provision for the execution of decree.
[Signed] KEITEL
Action taken by II a 118 and 119/42 g
II a 116/42 g
3 enclosures
12
received 26/1
SCH [Schlegelberger]
Ministerialrat Dr. Gramm, State Secretary Dr. Freisler asks to transmit
the enclosed letter to State Secretary Dr. Schlegelberger for his
information
[Signed] VON HACKWITZ
19 January 1942
PARTIAL TRANSLATION OF DOCUMENT 1733-PS
PROSECUTION EXHIBIT 303
SECRET NIGHT AND FOG DECREE OF HITLER, SIGNED BY KEITEL, 7 DECEMBER
1941, CONCERNING MEASURES TO BE TAKEN AGAINST PERSONS OFFERING
RESISTANCE TO GERMAN OCCUPATION
Secret
The Fuehrer and Supreme Commander of the Armed Forces
Directives for the Prosecution of Criminal Acts against the Reich or
the Occupying Power in the Occupied Territories of
7 December 1941
Since the beginning of the Russian campaign, Communist elements and
other anti-German circles have increased their assaults against the
Reich and the occupation force in the occupied territories. The extent
and the danger of these activities necessitate the most severe measures
against the malefactors in order to intimidate them. To begin with,
the following directives should be observed:
I
In case of criminal acts committed by non-German civilians and which
are directed against the Reich or the occupation force, endangering
their safety or striking force, the death penalty is indicated in
principle.
II
Criminal acts contained in paragraph I, will on principle, be tried
in the occupied territories only when it appears probable that
death sentences are going to be passed on the offenders, or, at
least, the main offenders, and if the trial and the execution of the
death sentence can be carried out without delay. In other cases the
offenders, or, at least, the main offenders, are to be taken to Germany.
III
Offenders who are being taken to Germany are subject to court martial
procedure there only if particular military interests should require
this. German and foreign agencies will be told upon inquiries on such
offenders that they were arrested and that the state of the proceeding
does not allow further information.
IV
The commanders in the occupied territories and the judicial
authorities, within their jurisdiction, will be personally held
responsible for the execution of this decree.
V
The Chief of the High Command of the Armed Forces will decide in
which of the occupied territories this decree shall be applied. He
is authorized to furnish explanations, to issue supplements, and
implementation directives. The Reich Minister of Justice will issue
implementation directives within his jurisdiction.
BY ORDER:
The Chief of the High Command of the Armed Forces
[Signed] KEITEL
Distribution:
Foreign Office
Reich Minister and Chief of the Reich Chancellery
Reich Leader SS and Chief of the German Police in the Reich
Ministry of the Interior
Army High Command (Chief, Army Armament and Commander of the
Replacement Army, Army Legal Department) with 7 numbered copies
Navy High Command (Navy Legal Department) with 1 numbered copy
Reich Air Minister and Commander in Chief of the Air Force with
1 numbered copy
President of the Reich Military Court
Commander Armed Forces Southeast with 4 numbered copies
Norway
Netherlands
Ostland
Ukraine
Plenipotentiary for the Armed Forces with the Reich Protector
for Bohemia and Moravia
Armistice Commission Wiesbaden
OKW:
Chief of the Armed Forces Operational Staff with 8 numbered
copies
Division L
Armed Forces Propaganda
Division Foreign Affairs, Foreign Counter Intelligence
Division Foreign Affairs
Counterintelligence III
General Armed Forces Office
TRANSLATION OF DOCUMENT 669-PS
PROSECUTION EXHIBIT 305
KEITEL LETTER OF 12 DECEMBER 1941, TRANSMITTING THE FIRST
IMPLEMENTATION DECREE TO THE NIGHT AND FOG DECREE
[Stamp] SECRET
The Commander in Chief of the Armed Forces
14 n 16 WR (I 3/4) [Stamp] L. 15 Dec. 1941
No. 165/41 g Az. 14g po 10
No. 37787 41
12 December 1941
Subject: Prosecution of criminal acts against the Reich or
against the occupying power in occupied territories
1 enclosure
It is the long considered will of the Fuehrer that in case of attacks
against the Reich or the occupation force in the occupied territories,
other measures than those in present use should be taken. The Fuehrer
is of the following opinion: in connection with such activities
imprisonment, even life imprisonment, is considered as a sign of
weakness. An effective and lasting deterrent can only be achieved by
death sentences or by measures which will keep the relatives of the
perpetrator and the population in suspense concerning the fate of the
perpetrator. This purpose is served by deportation to Germany.
The attached directives for the prosecution of crimes correspond to
this conception of the Fuehrer. They were examined and approved by him.
[Signed] KEITEL
Distribution[449]
[Handwritten notes] Clarify as soon as possible.
1. Are the provisions concerning shooting of hostages, etc., annulled
by that order?
2. Is it clear to the Army High Command, especially to the
Quartermaster General, who has been omitted in the distribution?
[Initial] W [Warlimont] 17 December
Secret
First Decree for the carrying out of the Fuehrer’s and Supreme
Commander’s directives concerning the Prosecution of
Criminal Acts against the Reich or the Occupying
Power in the Occupied Territories
By virtue of chapter V of the directives of 7 December 1941 of the
Fuehrer and Supreme Commander concerning the prosecution of criminal
acts against the Reich or the occupying power in the occupied
territories, I order the following:
I
The conditions of chapter I of the directives will as a rule be
applicable in cases of--
1. Assault with intent to kill.
2. Espionage.
3. Sabotage.
4. Communist activity.
5. Crimes liable to create disorder.
6. Favoring of the enemy by the following means:
a. Smuggling people into a country.
b. The attempt to enlist in an enemy army.
c. Support of members of an enemy army (parachutist, etc.).
7. Illegal possession of arms.
II
(1) The criminal acts described in section I of the directives are
to be tried in the occupied territories only under the following
conditions:
1. It must be probable that a death sentence will be pronounced against
the perpetrators or at least against the principal perpetrator.
2. It must be possible to carry out the trial and the execution of the
death sentence at once (on principle a week after the capture of the
perpetrator).
3. Special political misgivings against the immediate execution of the
death sentence should not exist.
4. Apart from the death sentence for murder or partisan activities no
death sentence against a woman is to be expected.
(2) If a sentence which has been pronounced according to section I is
annulled, the trial can continue in the occupied territory, if the
conditions of section I, No. 1, 3, and 4 still exist.
III
(1) In case of criminal acts mentioned in section I of the directives,
the highest judicial authority in agreement with the counter
intelligence officer examines whether the conditions for a trial in the
occupied territories exist. If he agrees that they are, he orders the
session of the court martial. If he denies it, he submits the documents
to his superior commanding officer (sec. 89, par. 1 of the decree on
criminal procedure during wartime). The latter may reserve the decision
to himself.
(2) The superior commanding officer renders the final decision as to
whether the conditions for a trial in the occupied territories exist.
If he agrees that they do, he orders the highest judicial authority
within his command to deal with it. If he denies it, he gives the order
to the secret field police to take the perpetrator to Germany.
IV
(1) Perpetrators taken to Germany _will be subjected there to court
martial proceedings_ only, if the High Command of the Armed Forces
or the superior commanding officer declare in their decision according
to chapter III that special military reasons require court martial
proceedings. If such a declaration is not made, the order that the
perpetrators be taken to Germany means a transfer according to section
3, paragraph 2, sentence 2 of the decree on criminal procedure during
wartime.
(2) If the superior commanding officer uses his authority according to
paragraph 1, he submits the documents to the High Command of the Armed
Forces through official channels. The perpetrators are to be designated
“prisoners of the armed forces” when being transferred to the secret
field police.
(3) The High Command of the Armed Forces determines the tribunal for
those perpetrators who are subjected to court martial proceedings
according to paragraph 1. _It may waive the competence of the armed
forces tribunals._ Moreover, it can suspend the proceedings for any
time it chooses.
V
The trial in Germany will be held under strictest exclusion of the
public because of the danger for national security. Foreign witnesses
may be questioned during the trial only with the permission of the High
Command of the Armed Forces.
VI
The regulations on the procedure before tribunals of the Armed
Forces included in the decree of the High Command of 13 September
1941 concerning the situation in Norway (Armed Forces Operational
Staff/Department L (IV/Qu) No. 002034/41 top secret) and of 16
September 1941 concerning the Communist revolutionary movements in the
occupied territories (Armed Forces Operational Staff/Abt. L (IV/Qu)
No. 002060/41 top secret) are superseded by the directives and this
executive order.
VII
(1) These directives will become effective 3 weeks after they are
signed. _They are to be applied in all occupied territories with the
exception of Denmark_ until further notice.
(2) The orders issued for the newly Occupied Eastern Territories are
not affected by these directives.
(3) Chapter I of the directives is applicable for pending trials. The
highest judicial authority and the superior commanding officer can
accordingly apply chapter III of this executive order in case of such
trials. If the superior commanding officer orders that a perpetrator
be taken to Germany, chapter IV will be applicable. In case of
perpetrators who were taken to Germany before these directives became
effective, the High Command of the Armed Forces can proceed according
to chapter IV, paragraph 3.
The Commander in Chief of the Armed Forces
[Signed] KEITEL
Distribution:
Foreign Office
Reich Minister and Chief of the Reich Chancellery
Reich Leader SS and Chief of the German Police in the Reich
Ministry of the Interior
High Command Army (Chief Army Armament and Commander of the
Replacement Army, Army Legal Department) with 7 numbered copies
High Command Navy (Navy Legal Department) with 1 numbered copy
Reich Minister for Air and Commander in Chief of the Air Force
with 1 numbered copy
President of the Reich Military Court
Armed Forces Commander Southeast with 1 numbered copy
Norway
Netherlands
Ostland
Ukraine
Plenipotentiary for the Armed Forces with the Reich Protector in
Bohemia and Moravia
Armistice Commission Wiesbaden
High Command Armed Forces:
Chief Armed Forces Operations Staff with 8 numbered
copies
Department L
Armed Forces Propaganda
Office Foreign Counterintelligence
Department Foreign Countries
Branch III
General Armed Forces Office
PARTIAL TRANSLATION OF DOCUMENT NG-077[450]
PROSECUTION EXHIBIT 306
LETTER FROM UNDER SECRETARY FREISLER TO GENERAL LEHMANN, 16 DECEMBER
1941, TRANSMITTING A DRAFT OF A PROPOSED IMPLEMENTATION ORDER TO THE
NIGHT AND FOG DECREE, TOGETHER WITH AN INTEROFFICE NOTE OF 25 DECEMBER
1941
Priv. II
v. Ha/La
16 December 1941
[Handwritten] Officially dispatched, 16 December
Secret [Handwritten] IIa 117/42 g
Sheet 13
Secret!
To Ministerialdirektor Dr. Lehmann
Chief of the Armed Forces Legal Division with the High
Command of the Armed Forces
Berlin W
Bendlerstr. 14
Dear Ministerialdirektor,
Dear Party Member Lehmann,
Being in the possession of your letter of the 12th of this month, I
send you attached hereto the draft of an executive order. Taking your
consent for granted, the Reich Minister of Justice intends to publish
it.[451] I should be obliged to you, if we could discuss our views
in the beginning of next week. (Prior to that time I shall be on an
official trip.) In the meantime, Ministerialdirektor Schaefer is also
ready to discuss this matter with you. Ministerialdirektor Schaefer
will prepare the necessary administrative regulations on the basis of
the provisions issued or proposed.
Heil Hitler!
[Initial] FR [Freisler]
[Illegible stamp]
[Italicized text crossed out in original document]
_Before dispatch
submitted to State
Secretary Dr. Schlegelberger
with the request to take note._
_Berlin_, 16 December
[Signed] FREISLER
22. 12. to II a 116/42 g
[Enclosure]
[Executory decree to Hitler’s Night and Fog order
of 7 December 1941]
Regarding the execution of the afore-mentioned decree, I decree:
1. I reserve to myself the decision as to which court is materially and
locally competent to deal with a case.
2. The public prosecutor shall prefer charges after earnest reflection
according to his duty.
3. The order, application, and termination of the arrest pending trial
are at the discretion of the public prosecutor.
4. The trial will be conducted behind closed doors.
5. The admittance of evidence of foreign origin depends on the
preceding consent of the public prosecutor.
6. Prior to the verdict the public prosecutor may revoke the indictment
or move for a suspension of the proceedings.
The motion of the public prosecutor to suspend proceedings must be
granted by the court.
The public prosecutor must be given an opportunity to state his
opinion, should the court decide on making an exception to his motion
in re.
[Initial] FR [Freisler] 16 December
[Initial] SCH [Schaefer] 16 December
[Entire document handwritten]
_Secret_
1. Note. I had an oral discussion in this matter on 19 December, and on
24 December I had a discussion by telephone with Ministerialdirektor
Lehmann. He told me, that the High Command of the Armed Forces had,
in principle, agreed to the draft submitted to it with regard to the
executive order but that, nevertheless, it would give a reply in
writing. The question has not been decided whether the High Command of
the Armed Forces within its jurisdiction, will give the right to handle
the case to the higher military court or the military courts. There is
also the necessity of settling some other questions which presumably
will be attempted in a conference of delegates in the beginning of
January. It would be advisable for the Reich Ministry of Justice to
await further information from the High Command of the Armed Forces.
Transfers of the cases to courts should not be expected before the
second half of January.
Experts in charge of this matter with the High Command of the Armed
Forces are--
Senior Military Court Counsellor Huelle,
Military Court Counsellor Schoelz,
Ministerialrat Sack.
Furthermore with the counterintelligence office of Colonel Bentivegni,
Chief of Counterintelligence III.
Ministerialrat Herzlieb,
Senior Military Court Counsellor von Gramatzki.
2. To Ministerialrat Grau, with the request to take note.
[Initial] GR [Grau]
25 December
I beg you to take care of the file and handle it in the future.
[Signed] SCHAEFER
24 December
TRANSLATION OF DOCUMENT NG-232
PROSECUTION EXHIBIT 308
CIRCULAR DECREE OF THE REICH MINISTRY OF JUSTICE, SIGNED BY UNDER
SECRETARY FREISLER, 6 FEBRUARY 1942, ASSIGNING PARTICULAR SPECIAL
COURTS TO HANDLE NIGHT AND FOG CASES
The Reich Minister of Justice
II a 119/42 secret
Berlin W 8, 6 February 1942
Wilhelmstrasse 65
Phone: 110044
Long distance: 11 65 16
[Stamp] Secret
Circular decree on the implementation of the executive decree of
6 February 1942, concerning the directives issued by the Fuehrer
and Supreme Commander of the Armed Forces for the prosecution of
criminal acts against the Reich or the occupying power in the occupied
territories.
For the further execution of the directives mentioned before, I decree:
1
Competent for the handling of the cases transferred to ordinary courts,
including their eventual retrial, are, as far as they originate from
the occupied French territories, the Special Court and the chief public
prosecutor in Cologne; as far as they originate from the occupied
Belgian and Dutch territories, the Special Court and the chief public
prosecutor in Dortmund; as far as they originate from the occupied
Norwegian territories, the Special Court and the chief prosecutor in
Kiel; for the rest, the Special Court and the attorney general at
the Berlin district court. In special cases I reserve to myself the
decision of competence for each individual case.
2
The Chief Public Prosecutor will inform me of the indictment, the
intended plea and the sentence as well as of his intention to refrain
from any accusation in a specific case.
3
The choice of a defense counsel will require the agreement of the
presiding judge who makes his decision only with the consent of the
prosecutor. The agreement may be withdrawn.
4
Warrants of arrest will be withdrawn only with my consent. If such is
intended, the chief public prosecutor will report to me beforehand. He
will furthermore ask for my decision before using foreign evidence or
before agreeing to its being used by the Tribunal.
5
Inquiries concerning the accused person or the pending trial from other
sources than those armed forces and police agencies dealing with the
case will be answered by merely stating that * * * is arrested, and the
state of the trial does not allow further information.
Acting:
[Typed] Signed: DR. FREISLER
Certified: [Signed] KERSTEN
Chief Secretary of the Ministerial Chancellery
Circular stamp of the Reich Ministry of Justice
TRANSLATION OF DOCUMENT 2521-PS
PROSECUTION EXHIBIT 310
LETTER FROM THE SS ECONOMIC AND ADMINISTRATIVE MAIN OFFICE TO
CONCENTRATION CAMP COMMANDERS, 18 AUGUST 1942, TRANSMITTING
INSTRUCTIONS FOR TREATMENT OF NIGHT AND FOG PRISONERS
Copy Oranienburg, 18 August 1942
SS Economic and Administrative Main Office[452]
Chief of Division D--Concentration Camps
D I/Az.: 14 c 2/Ot./U.
Secret Diary No. 551/42
Subject: Prisoners who come under the Keitel decree
Reference: Reich Security Main Office--IV C 2 Gen. No. 103/42 of
14 August 42 and attached extract of 4 August 1942
Enclosure: 1
To the Camp Commandants of the Concentration Camps Dachau,
Sachsenhausen, Buchenwald, Mauthausen, Flossenbuerg, Neuengamme,
Auschwitz, Gross-Rosen, Natzweiler, Niederhagen, Stutthof,
Arbeitsdorf, Ravensbrueck, and Prisoner of War Camp at Lublin
I am sending you, for information and execution, enclosed extract
from the Nacht und Nebel [Night and Fog] Decree for official use in
concentration camps, in connection with prisoners who come under the
“Keitel Decree.”
In the event of the transfer of such prisoners, it is to be pointed
out that the prisoners come under the “Keitel Decree” or the Nacht und
Nebel Decree.
[Typed] GLUECKS
SS Brigadier General and Brigadier General of the Waffen SS
Certified true copy
Natzweiler, 24 August 1942
[Signed] MELZER
SS-Corporal
Seal
To department III with the request to inform the postal department.
Copy
IV D 4--103/42 g Berlin, 4 August 1942
Extract from the Nacht und Nebel Decree for official use in
concentration camps
By decree of the Commander in Chief of the Armed Forces dated 12
December 1941 regarding the prosecution of punishable offenses against
the Reich or the occupation forces in the occupied areas (called in
short Nacht und Nebel Decree), it has been directed by virtue of a
Fuehrer order, that persons who, in the occupied territories, take
action against the Reich or the occupation forces, shall be removed
to the Reich for deterrent purposes. Here they are to be transferred
to a Special Court. Should this not be possible for any reason, these
persons will be placed in a concentration camp under sentence of
protective custody. Protective custody as a rule lasts until the end of
the war.
As it is the purpose of this decree to leave the relatives, friends,
and acquaintances in uncertainty regarding the fate of the prisoners;
they are not allowed to have any means of communication with the
outside world. They may therefore neither write, nor receive letters,
parcels, or visits. Nor will any kind of information regarding the
prisoners be given to any agency outside.
In cases of death, the relatives are not to be informed until further
notice. There has not yet been a final ruling on this question.
These regulations apply to all prisoners regarding whom it is stated in
the detention particulars or in the detention certificates of the Reich
Security Main Office that they come under the Nacht und Nebel Decree.
Furthermore, all prisoners come under it who are described as “Porto”
or “Continent” prisoners.
If it should occur that prisoners who come under the Nacht und Nebel
Decree, have, through an error, had the opportunity of informing their
relatives, further exchange of correspondence with their relatives
should, for tactical reason, be granted them within the framework of
the general regulations regarding correspondence for persons under
protective custody.
[Typed] Signed: DR. HOFFMANN
Certified true copy.
Natzweiler, 24 August 1942
[Signed] MELZER
[Seal]
SS Corporal
TRANSLATION OF DOCUMENT NG-228
PROSECUTION EXHIBIT 312
MEMORANDUMS OF DEFENDANT VON AMMON TO DEFENDANT ROTHENBERGER, 9 AND 26
SEPTEMBER 1942, CONCERNING PENDING NIGHT AND FOG CASES AND THE HANDLING
OF THESE PRISONERS
1. Note. Criminal proceedings according to the directives of the
Fuehrer for the prosecution of criminal acts against the Reich or the
occupying power in the occupied territories of 7 December 1941[453]
(so-called Nacht und Nebel cases) pending on 1 September 1943 are--
_a._ With the Chief Public Prosecutor in _Kiel_ (from
the occupied Norwegian territories) _9_ cases with a total of
_262_ accused.
_b._ With the Chief Public Prosecutor in _Essen_ (from the
occupied Belgian and northern French territories) _180_ cases with
a total of _863_ accused.
_c._ With the Chief Public Prosecutor in _Cologne_ (from the
occupied French territories--with the exception of northern France)
_177_ cases with a total of _331_ accused.
Since 31 August 1942, trials have been held before the Special Court in
Essen. On 31 August 1942 the first death sentence (against Kratz) was
passed.
2. To be submitted to:
Ministerial Director Dr. Crohne,
Ministerial Dirigent Dr. Mettgenberg,
Oberregierungsrat Mielke
separately to each one--with the request to take note
[Initial] R. [ROTHENBERGER]
Berlin, 9 September 1942
[Signed] VON AMMON
[Handwritten notes]
To State Secretary Dr. Rothenberger
To the Reich Minister of Justice
With the request to take note.
Has been submitted.
[Signed] DR. CROHNE 10 September
[Signed] EBERSBERG
[Initial] E
Notes for State Secretary Dr. Rothenberger
On 24 September a report was submitted to the Reich minister on the
legal basis (Fuehrer decree for the prosecution of criminal acts
against the Reich or the occupying power in the occupied territories
of 7 December 1941 and orders for execution) and on the present stage
of the so-called Nacht und Nebel proceedings.
On 1 September 1942 pending were--
1. With the Chief Public Prosecutor in Kiel (from the occupied
Norwegian territories) 9 cases with a total of 262 accused.
2. With the Chief Public Prosecutor in Essen (from the occupied
territories of Belgium and northern France) 180 cases with a total of
863 accused.
3. With the Chief Public Prosecutor in Cologne (from the occupied
French territories--with the exception of northern France) 177 cases
with a total of 331 accused.
The Reich Minister has ordered the following changes to be made in the
present procedure:
1. The Special Courts in Kiel, Essen, Cologne, and Berlin with
exclusive competence hitherto, are to some extent to be replaced by the
People’s Court.
2. The present procedure, according to which the accused are kept in
custody indefinitely by the judiciary authorities when an indictment
was either impossible or not answering the purpose, is to be abolished.
Furthermore, the Reich Minister wishes the question of the competence
for pardons settled in such a way that in cases which have been handed
over to the common court authorities, these (not the authorities of the
armed forces) shall make the decision for pardon.
To give consideration to these questions, a departmental meeting
with the High Command of the Armed Forces Legal Division and
Counterintelligence is to be held on 2 October 1942.
Berlin, 26 September 1942
[Typed] signed DR. VON AMMON
[Handwritten] for further action
[Initial] A [Ammon]
2 October
PARTIAL TRANSLATION OF DOCUMENT NG-255
PROSECUTION EXHIBIT 314
LETTER FROM MINISTRY OF JUSTICE, INITIALED BY DEFENDANTS METTGENBERG
AND VON AMMON, TO VARIOUS JUDGES AND PUBLIC PROSECUTORS, 21 DECEMBER
1942, CONCERNING OBJECTIONS TO ELECTIVE DEFENSE COUNSEL IN NIGHT AND
FOG TRIALS
The Reich Minister of Justice Berlin, 21 December 1942
IVa 2069.42 g
[stamp]
mailed 9 January 1943
[Handwritten] Ru.
[Stamp] Secret
To--
_a._ The President of the People’s Court
_b._ The Chief Public Prosecutor at the People’s Court
_c._ The President of the Military Court
_d._ The Presidents of the Courts of Appeal in Hamm, in
Westphalia, Kiel, and Cologne
_e._ The Attorney General at the Military Court
_f._ The Attorneys General in Hamm, in Westphalia, Kiel,
and Cologne
[Stamp]
To the Chancellery
5 January 1943
made out:
Reply: 6 January 1943
Le/Ru.
Subject: Prosecution of criminal acts against the Reich or the
occupying power in the occupied territories
[Stamp] [Stamp]
To the Chancellery Armed Forces Legal Department
22 December 1942 24 December 1942
made out: Reply: 1211/42 Secret
_Before mailing_
To the High Command of the Armed Forces
Armed Forces Legal Department
for information.
Send copy there.
Several attorneys general have raised the question of whether elective
defense counsel are to be admitted in the procedures transferred to
the general courts according to the directives of the Fuehrer, dated 7
December 1941, dealing with the prosecution of criminal acts against
the Reich or the occupying power in the occupied territories. I have
contacted the High Command of the Armed Forces in this respect. We
are both of the opinion that in view of the regulations in force for
keeping secret the procedures in question, there are basic objections
to the admission of elective defense counsel. The interests of the
defendants can be taken care of by giving them defense counsel
according to paragraph 32 of the competence regulation.
BY ORDER
[Department] III [Department] IV
21 December [Initial] M [Mettgenberg] 21/12
[Initials illegible] [Initial] A [von Ammon] 17/12
PARTIAL TRANSLATION OF DOCUMENT NG-253
PROSECUTION EXHIBIT 317
EXTRACTS FROM OFFICIAL CORRESPONDENCE ARISING OUT OF THE QUESTION
OF PROVIDING DEFENSE COUNSEL IN NIGHT AND FOG TRIALS, 4 JANUARY--19
FEBRUARY 1943
[Letter from the President of the Essen Special Court to the President
of the Essen District Court, 4 January 1943]
The President of the Special Court
Essen, 4 January 1943
_Secret_
To the President of the District Court in Essen
Concerning--Prosecution of criminal acts against the Reich or
the occupying power in the occupied territories.
The German Penal Code applies to the prosecution of criminal acts
against the Reich or the occupying power in occupied territories. This
does not exclude the application of article IV, paragraph 32 of the
competence decree of 21 February 1940 concerning necessary defense,
included in the Reich Minister of Justice’s executive decree of 6
February 1942.[454] Foreign defendants must therefore have counsel if
there is a possibility of the death sentence (or life imprisonment)
being imposed. That is frequently the case in these trials. An
increasing number of more copious cases with several defendants are
now coming up. Very frequently the only evidence against defendants
pleading not guilty consists of statements of codefendants, so that
in view of the possibility of conflicting interests, it is only
rarely possible to appoint _one counsel_ for _a number_ of
defendants. Recently, seven counsel had to be appointed for one trial
lasting several days. At that time it was most difficult to find
enough counsel in a position to take over the defense. The course
of proceedings was repeatedly interrupted owing to the inability of
counsel to appear. In a few days another case with about 30 defendants
will come up, for which a number of counsel will presumably have to be
appointed, too. A number of similar trials may be expected shortly.
Such a strain for trials lasting all day for several days upon the few
lawyers, who are overworked due to their representing their drafted
colleagues, is in my opinion untenable under present circumstances.
The resultant drain upon the State treasury is considerable. When the
second court for these special cases which will soon be needed is
set up, it will be next to impossible to get the requisite number of
counsel. The interests of foreign defendants can hardly be considered
sufficiently important to justify continuous demands of this kind on
staff and public funds.
I therefore suggest that the Reich Minister of Justice should lay down
the following by virtue of the powers granted in No. V of the Fuehrer’s
directives of 7 December 1941:
Article IV, paragraph 32 of the competence decree of 21 February 1940
is not applicable. The president of the court will appoint a counsel
for the defendant if the latter is unable to defend himself or if for
any other special reasons it seems desirable that the defendant be
represented.
[Signed] GOEBEL[455]
District Court Director [Landgerichtsdirektor]
[Memorandum, 18 January 1943, from Ministerial Director Grau to
defendant von Ammon asking for comments on the proposal of the
President of the Special Court in Essen.]
_Secret_
In reference: III a 184/43g
To Oberlandesgerichtsrat Dr. von Ammon
Account of proceedings enclosed with request for comments. In case a
regulation of the nature suggested by the Essen Special Court should
be considered necessary, a legal decision along the lines of the draft
could be made. The formulation of this communication intends to leave
untouched in principle the necessity for defense in the cases concerned
and only to permit individual exceptions of the compulsory regulation
contained in paragraph 32 of the competence decree (ZustVO).
I consider it doubtful whether the principle of the necessity of having
a defense should be abandoned also in cases where the death sentence
may be expected. Here the existing regulations should be waived only in
cases of the utmost urgency.
Berlin, 18 January 1943
[Signed] GRAU
[Answer, 1 February 1943, from the Reich Ministry of Justice, initialed
by defendants Mettgenberg and von Ammon.]
To Ministerialrat Grau
Department IV suggests that section 2 of decree No. 7 of 7 December
1941 be given roughly the following form:
“In trials in which according to the regulations a defense
counsel has to be appointed for the defendant, the regulation
may be ignored if the president of the court is convinced that
the character of the defendant or the nature of the charge make
the assistance of a defense counsel superfluous.”
However, it might be expedient to obtain the comments of the President
of the People’s Court, and of the chief Reich prosecutor at the
People’s Court, the presidents of the courts of appeal at Kiel and
Cologne and the attorneys general in Hamm, Cologne, and Kiel.
Berlin, 1 February 1943
[Initials] V [Vollmer]
M [Mettgenberg] 1 February
A [von Ammon] 30 January
[Letter, 9 February 1943, from the Reich Ministry of Justice, initialed
by defendants Mettgenberg and von Ammon.]
The Reich Minister of Justice Berlin, 9 February, 1943
III a 184/43 g
_Secret_
1. To
_a._ The President of the People’s Court[456]
_b._ The Chief Public Prosecutor at the People’s Court[456]
_c._ The Oberlandesgerichtspraesidenten in Kiel and Cologne
[Initial] TH [Thierack]
_d._ Chief Public Prosecutors in Hamm, Kiel, and Cologne
[Stamp] To files 9 February 1943
Subject: Crimes against the Reich or the occupying forces in
occupied territory
The president of the Essen Special Court reports that in trials for the
above-mentioned offenses, where a defense is necessary, because of the
sentence which may be expected, it is often difficult to obtain counsel
for the defense when [defendants who have confessed in cases where
there is a collision of interest between the defendants][457] a defense
counsel always has to be obtained. The requisite number of lawyers
is not always obtainable, the course of the main proceedings is also
frequently hampered by the inability of individual lawyers to appear.
I therefore propose to insert in No. 7 of the decree for the carrying
out of the directives laid down by the Fuehrer and Supreme Commander of
the Armed Forces of 7 December 1941 the following regulation, which is
to be paragraph 2:
“In trials before the Sondergericht [Special Court] in which
according to the regulations defense counsel has to be provided
for the defendant, the regulation may be ignored when the
president of the court can conscientiously state that the
character of the accused and the nature of the charge make the
presence of a defense counsel superfluous.”
Please comment as soon as possible.
BY ORDER:
[Department] IV [Department] III
[Initial Illegible]
[Initials] V [Vollmer] 4 February
M [Mettgenberg] 4 February
A [Ammon] 3 February
C [Crohne] 3 February
2. 3 weeks later.
3 March
TRANSLATION OF DOCUMENT NG-269
PROSECUTION EXHIBIT 319
SECRET INSTRUCTIONS OF REICH MINISTRY OF JUSTICE TO PROSECUTORS AND
JUDGES, INITIALED BY DEFENDANTS ALTSTOETTER, METTGENBERG, AND VON
AMMON, 6 MARCH 1943, CONCERNING MEASURES NECESSARY TO MAINTAIN SECRECY
OF NIGHT AND FOG PROCEDURES
Draft
Berlin, 6 March 1943
The Reich Minister of Justice
IV a 398/43 secret
[Stamp] Secret
Secret
1. To:
_a._ The Chief Reich Prosecutor at the People’s Court
_b._ The Attorneys General in Celle, Duesseldorf,
Frankfurt/Main, Hamburg, Hamm, Kiel, and Cologne
_c._ The Attorney General at the Berlin Court of Appeal
Subject: Criminal procedures on account of criminal acts
committed against the Reich or the occupying power in the
occupied territories
Enclosures: Extra copies for the Chief Public Prosecutors in
Essen, Kiel, and Cologne and for the Attorney General at the
Berlin District Court
For the attention of:
_a._ The President of the People’s Court
_b._ The Presidents of the District Courts of Appeal in
Hamm, Kiel, and Cologne
_c._ The President of the Berlin Court of Appeal
Enclosures: Extra copies for the Presidents of the District
Courts in Hamm, Kiel, Cologne, and Berlin
[Stamp] Chancellery of Justice
6 March 1943
With regard to criminal procedures on account of criminal acts against
the Reich or against the occupying forces in the occupied territories
(so-called Night and Fog cases) I request the observance of the
following directives in order not to endanger the necessary top secrecy
of the procedure, _particularly, regarding the execution of death
sentences and other cases of death among prisoners_. [Italicized
text crossed out in the original document.]
1. The cards used for investigations for the Reich crime statistics
need not be filled in. Likewise, notification of the penal records
office will be discontinued until further notice. However, sentences
will have to be registered in lists or on a card index in order to make
possible an entry into the penal records in due course.
2. In cases of death, especially in cases of execution of NN prisoners,
as well as in cases of female NN prisoners giving birth to a child,
the register must be notified as prescribed by law. However, the
following remark has to be added: “By order of the Reich Minister of
the Interior, the entry into the death (birth) registry must bear an
endorsement, saying that examination of the papers, furnishing of
information and of certified copies of death (birth) certificates is
only admissible with the consent of the Reich Minister of Justice.”
3. In case an NN prisoner sentenced to death desires to draw up a
public will, proceedings must follow No. 30, paragraph 2 of my circular
ordinance of 19 February 1939, article 417-III a, 318.39. The persons
who assist the drawing up of the will are, if necessary, to be sworn to
secrecy. The will has to be taken into official custody according to
article 2 of the Probate Law. The deposition receipt has to be kept by
the prosecution until further notice.
4. Farewell letters by NN prisoners as well as other letters must not
be mailed. They have to be forwarded to the prosecution who will keep
them until further notice.
5. If an NN prisoner who has been sentenced to death and informed of
the forthcoming execution of the death sentence desires spiritual
assistance by the prison padre, this will be granted. If necessary, the
padre must be sworn to secrecy.
6. The relatives will not be informed of the death and especially of
the execution of an NN prisoner. The press will not be informed of
the execution of a death sentence, nor must the execution of a death
sentence be publicly announced by posters.
7. The bodies of executed NN prisoners or prisoners who died from other
causes have to be turned over to the State Police for burial. Reference
must be made to the existing regulations on secrecy. It must be pointed
out especially that the graves of NN prisoners must not be marked with
the names of the deceased.
The bodies must not be used for teaching or research purposes.
8. Legacies of NN prisoners who have been executed or died from other
causes must be kept at the prison where the sentence was served.
BY ORDER:
[Initials] SCH [Schaefer] 5 March
MX [Marx] 3 March
A [Altstoetter] 3 March
M [Mettgenberg] 25 February
v. A. [von Ammon] 27 February
[Initials] W [Westphal] 27 February
V [Vogel] 26 February
R [Rexroth] 27 February
H [Hecker] 26 February
EI [Eichler] 1 March
2. Copy of (1) to District Court Judge Dr. von Ammon and to
Chief Public Prosecutor Dr. Metten, also to Dr. Eichler.
3. To be submitted again after being mailed.
[Stamp] Mailed 8 March 1943
[Handwritten] resubmitted [Initials illegible] March 9
[Handwritten notes illegible]
Distribution
The circular ordinance of 6 March 1943-IV a 398/43--has been mailed
today to the following addresses:
786 b 1. Chief Reich Prosecutor at the People’s Court, Berlin.
7 2. Attorney General, Celle.
8 3. Attorney General, Duesseldorf.
9 4. Attorney General, Frankfurt (Main).
90 5. Attorney General, Hamburg.
1 6. Attorney General, Hamm.
2 7. Attorney General, Kiel.
3 8. Attorney General, Cologne.
4 9. Attorney General at the Court of Appeal, Berlin.
5 10. President of the People’s Court, Berlin.
6 11. President of the Supreme Court of Appeal, Hamm.
7 12. President of the Supreme Court of Appeal, Kiel.
8 13. President of the Supreme Court of Appeal, Cologne.
799 b 14. President of the District Court, Berlin.
[Handwritten] 14 Weber
[Stamp] Berlin, W 8, 8 March 1943, 6–7 afternoon
TRANSLATION OF DOCUMENT NG-281
PROSECUTION EXHIBIT 323
FILE NOTE OF DEFENDANT VON AMMON, 7 OCTOBER 1943, CONCERNING DEFENDANT
LAUTZ’ QUESTION AS TO GIVING DEFENDANTS TRANSLATIONS OF THE INDICTMENTS
AGAINST THEM IN NIGHT AND FOG CASES
1. _Note_--Chief Reich Prosecutor Lautz asked me whether there
were any objections to translations of indictments in NN proceedings
being handed over to the defendants. It has turned out to be
inconvenient that the defendants learned the details of the charges
raised against them only during the trial. Also the interpretation by
the defense counsel is not always sufficient, since their French mostly
is not good enough and since the defendants were brought to the place
of the trial only shortly before it was held.
The procedure adopted for Czech defendants, viz, having the indictment
translated to them orally by a Czech-speaking sergeant, is not
possible here since French-speaking sergeants are not available.
After having given a report to Ministerialdirektor of Department IV and
to the Minister, I informed Chief Reich Prosecutor Lautz on 6 October
1943 that there were no objections whatever to the intended procedure.
2. Ad procedures of office a 3.--“Prosecution of criminal acts against
the Reich or the occupying power in the occupied territories.”
Berlin, 7 October 1943
IVa 2369/43 g [Initial] A [von Ammon]
PARTIAL TRANSLATION OF DOCUMENT NG-205
PROSECUTION EXHIBIT 328
SECRET DIRECTIVE OF THE REICH MINISTRY OF JUSTICE, 21 JANUARY 1944,
ORDERING TRANSFER TO GESTAPO OF NIGHT AND FOG PRISONERS WHO WERE
ACQUITTED, AGAINST WHOM PROCEEDINGS WERE QUASHED, OR WHO HAD SERVED
THEIR SENTENCES
The Reich Minister of Justice
IV a 2083.43 g Berlin, 21 January 1944
Secret
[Handwritten] Immediately!
[Initial] TH [Thierack]
(Stamp)
dispatched: 25 January 1944
1. To the
_a._ President of the People’s Court
_b._ Chief Reich Prosecutor at the People’s Court
_c._ Presidents of the Courts of Appeal in Breslau, Hamm,
and Kiel
_d._ President of the Military Court
_e._ Attorneys General in Breslau, Hamm, and Kiel
_f._ Attorney General at the Military Court
Subject: Prosecution of criminal acts committed against the
Reich or the occupying power in the occupied territories
Enclosures: Extra copies for the Presidents of the District
Courts in Breslau, Essen, Kiel, and Berlin; Chief Public
Prosecutors in Breslau, Essen, and Kiel; and for the
Attorney General at the Berlin District Court
[Stamp] submitted on 25 January 1944
For information:
_a._ The other Attorneys General
_b._ Supreme Command of the Armed Forces
Referring to the letter of 10 November 1943
14 n 16.18 WR (I/3)--129/43 g
_c._ Reich Leader SS and Chief of the German Police at the
Reich Ministry of the Interior
--Chief of the Security Police and of the SD--
Referring to the letter of 17 December 1943
IV D 4-103/42 g
As supplement to my circular decree dated 28 October 1942--IV a 1668/42
g--I order the following concerning the treatment of NN prisoners who
were acquitted by a general court, against whom such proceedings were
quashed, or who served their sentence imposed on them by a general
court:
1. If during the trial of an NN proceeding it appears that the
defendant is innocent or that his guilt has not been sufficiently
established, he will be handed over to the Secret State Police; the
public prosecutor will inform the Secret State Police of his opinion
whether the defendant can be released and return to the occupied
territories, or whether he will continue to remain under detention. The
Secret State Police will decide what further actions are to be taken.
2. Defendants who were acquitted, or against whom proceedings were
quashed during the trial, or who served a sentence during the war,
will be handed over to the Secret State Police for detention for the
duration of the war. The Reich Leader SS and Chief of the German Police
at the Reich Ministry of the Interior has ordered that these defendants
will always be given the mildest grade of protective custody, i.e.,
grade I.
3. Deviations from the regulations as contained in Nos. 1 and 2, will
be made only after my approval has been given.
BY ORDER: As deputy
[Initial] V [Vollmer] Jan. 18
2. Copy of 1 will be sent to the--
_a._ President of the Senate Hecker
_b._ Ministerialrat Dr. von Ammon
_c._ Amtsrat Thienel
_d._ s 1
3. To be resubmitted after dispatch--
[Initial] A [von Ammon] Jan. 18
Report of 13 December 1943
[Handwritten] submitted with IV a 27/44 g
The decree of 21 January 1944--IV a 2803/43--has been mailed to the
following addresses today:
1. President of the People’s Court in Berlin.
2. Chief Reich Prosecutor at the People’s Court in Berlin.
3. President of the Court of Appeal, Breslau.
4. President of the Court of Appeal, Hamm/Westphalia.
5. President of the Court of Appeal, Kiel.
6. President of the Court of Appeal [Kammergericht], Berlin.
7. Chief Public Prosecutor, Breslau.
8. Chief Public Prosecutor, Hamm/Westphalia.
9. Chief Public Prosecutor, Kiel.
10. Chief Public Prosecutor at the Court of Appeal, Berlin.
11. Chief Public Prosecutor, Bamberg.
12. Chief Public Prosecutor, Braunschweig.
13. Chief Public Prosecutor, Celle.
14. Chief Public Prosecutor, Danzig.
15. Chief Public Prosecutor, Darmstadt.
16. Chief Public Prosecutor, Dresden.
17. Chief Public Prosecutor, Duesseldorf.
18. Chief Public Prosecutor, Frankfurt/Main.
19. Chief Public Prosecutor, Graz.
20. Chief Public Prosecutor, Hamburg.
21. Chief Public Prosecutor, Innsbruck.
22. Chief Public Prosecutor, Jena.
23. Chief Public Prosecutor, Karlsruhe.
24. Chief Public Prosecutor, Kassel.
25. Chief Public Prosecutor, Katowice.
26. Chief Public Prosecutor, Cologne/Rhine.
27. Chief Public Prosecutor, Koenigsberg.
28. Chief Public Prosecutor, Leitmeritz.
29. Chief Public Prosecutor, Linz/Donau.
30. Chief Public Prosecutor, Munich.
31. Chief Public Prosecutor, Naumburg/Saale.
32. Chief Public Prosecutor, Nuremberg.
33. Chief Public Prosecutor, Oldenburg.
34. Chief Public Prosecutor, Poznan.
35. Chief Public Prosecutor, Rostock, at present Schwerin/Meckl.
36. Chief Public Prosecutor, Stettin.
37. Chief Public Prosecutor, Stuttgart.
38. Chief Public Prosecutor, Vienna.
39. Chief Public Prosecutor, Zweibruecken.
40. Plenipotentiary of the Reich Minister of Justice for the Emsland convict camps in Papenburg.
41. German State Minister for Bohemia and Moravia in Prague.
42. Supreme Command of the Wehrmacht, Berlin.
43. Reich Leader SS and Chief of the German Police (Pommerenin) [sic].
44.
[illegible marginal note]
[Stamp] Berlin, 25 January 1944
TRANSLATION OF DOCUMENT NG-230
PROSECUTION EXHIBIT 331
LETTER FROM ARMED FORCES HIGH COMMAND TO THE FOREIGN OFFICE, COPY
TO DEFENDANT VON AMMON, 4 APRIL 1944, CONCERNING TWO NOTES OF M. DE
BRINON, VICHY GOVERNMENT AMBASSADOR, ON NIGHT AND FOG CASES
Berlin, W 35, 4 April 1944
Copy Tirpitzufer 72–76
High Command of the Armed Forces
14 n 16.18 WR (I/3)
259/44g
Secret
To the Foreign Office
Berlin W 8
Subject: Prosecution of offenses against the Reich or the army
of occupation in the occupied territories
2 enclosures[458]
Enclosed two notes of the French Ambassador and Secretary of State de
Brinon are submitted
The High Command gives the following comment upon them:
In virtue of the directions given by the Fuehrer on 7 December 1941,
capital punishment will be inflicted on principle in the occupied
territories for offenses of non-German civilians which are directed
against the Reich and the army of occupation and are endangering its
safety or readiness for action. Whenever capital punishment would not
be probable or could not be immediately inflicted and executed, the
perpetrator will be brought to Germany and sentenced there. In some
cases perpetrators who have been sentenced in the occupied territories
will be committed for imprisonment to a penitentiary in Germany. This
will be done for political reasons on principle in case of capital
punishments inflicted on women, men of 70 years and older, and fathers
of numerous children under age, excepting punishments inflicted on
account of murder or of such crimes which are in connection with
actions (e.g., partisans).
The transfer to Germany will be made, in accordance with the wishes
of the Fuehrer, in order to make an efficacious and lasting warning
example. The Fuehrer desires the relations and the population to be
kept in suspense as regards the fate of the perpetrator. To German and
foreign bureaus it will be replied to inquiries and petitions--“The
perpetrator has been committed to prison, further information cannot be
given.”
To Ministerialrat von Ammon
It is therefore impossible to comply with the wishes of the Ambassador
de Brinon. The High Command requests you to inform him in due form.
BY ORDER:
[Typed] signed DR. HUELLE
Berlin, 6 April 1944
High Command of the Armed Forces
14 n 16.18 WR (I/3)
259/44g
To the Reich Minister of Justice
Berlin W 8
In reference to letter of 17 March 1944 (V s1 263/44g). The above copy
is forwarded to you for information
BY ORDER:
[Signed] DR. HUELLE
[Handwritten note]
To previous correspondence [illegible].
Prosecution of offenses against the Reich or the army of
occupation in the occupied territories
[Initial] A [von Ammon]
2.5
TRANSLATION OF DOCUMENT NG-262
PROSECUTION EXHIBIT 333
FILE NOTE INITIALED BY DEFENDANT VON AMMON ON 10 MAY 1944, CONCERNING
THE STATUS OF NIGHT AND FOG CASES AS OF 30 APRIL 1944
_Copy_
IV n 313/42 secret
Survey of the Status of NN Proceedings on 30 April 1944
I. The following cases were transferred by the military authorities to:
_a._ Chief Public Prosecutor Kiel--
12 proceedings with 442 defendants.
_b._ Chief Public Prosecutor Oppeln--
729 proceedings with 4048 defendants.
_c._ Chief Public Prosecutor Breslau[459]--
1273 proceedings with 2149 defendants.
_Total_--2014 proceedings with 6639 defendants.
II. Charges preferred by:
_a._ Chief Public Prosecutor Kiel--
9 proceedings with 345 defendants.
_b._ Chief Public Prosecutor Oppeln--
494 proceedings with 1578 defendants.
_c._ Chief Public Prosecutor Breslau--
813 proceedings with 1113 defendants.
_d._ Chief Reich Prosecutor with the People’s Court--
134 proceedings with 588 defendants.
_Total_--1450 proceedings with 3624 defendants.
III. Verdicts have been submitted from:
_a._ Kiel Special Court--
8 cases with 168 defendants.
_b._ Oppeln Special Court--
307 cases with 725 defendants.
_c._ Breslau Special Court--
377 cases with 473 defendants.
_d._ Chief Reich Prosecutor with People’s Court--
115 cases with 427 defendants.
_Total_--807 cases with 1793 defendants.
[Handwritten] To the files concerning the prosecution of
criminal acts against the Reich and the occupying power in
occupied territories.
[Initial] A [von Ammon]
10 May
TRANSLATION OF DOCUMENT NG-1886
PROSECUTION EXHIBIT 546
LETTER FROM DEFENDANT VON AMMON TO THE ATTORNEY
GENERAL IN MUNICH, 22 NOVEMBER 1944, CONCERNING
THE EXECUTION OF NIGHT AND FOG PRISONERS
The Reich Minister of Justice
_IV a 676/44g_
Berlin W 8, 22 November 1944
Wilhelmstrasse 65
Telephone: 11 00 44
Long distance calls: 11 65 16
Diary No. 1716/44g
SECRET
To the Prosecutor General in Munich 35
Subject: Certification of the personal data of executed NN
prisoners
Reference: Diary No. 1584/44g
In view of the new arrangement concerning the treatment of NN prisoners
in the future there no longer will be executions of NN prisoners in any
large numbers.
Therefore, a closer examination of the suggestions, made by
the director of the penitentiary and the detention prison
Munich-Stadelheim, is not necessary. I request you to notify the latter
accordingly.
BY ORDER:
[Typed] DR. VON AMMON[460]
[Official seal of the Ministry of Justice]
[Signed] RUTH
Certified: Court Official
EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS
RUDOLF LEHMANN[461]
_DIRECT EXAMINATION_
* * * * * * *
MR. KING: Will you tell us briefly what your rank was and what
your duties were in the High Command of the Armed Forces?
WITNESS LEHMANN: I was the Ministerialdirektor in the High
Command of the Armed Forces, and I was Chief of the Legal Division of
the Armed Forces.
Q. Do you know of the so-called Nacht und Nebel Decree which was issued
in the latter part of 1941 over the signature of Keitel?
A. I am very well informed as to how that came about.
Q. Will you tell us briefly how the Nacht und Nebel program was
supposed to work? In other words, what was the theory upon which this
“Erlass” or decree was issued?
* * * * * * *
A. There arose in France, after the beginning of the Russian campaign,
the resistance movement which became very active. Hitler complained
to the justice administration of the armed forces that on account of
their attitude they were not in a position to suppress that resistance
movement. That is the general background for the Nacht und Nebel Decree.
In detail this is what happened--In the beginning of October 1941 I
received a letter from Field Marshal Keitel--but I want to state here
that Keitel was always at headquarters, whereas I was always in Berlin.
In this letter, which all my assistants have read, Keitel passed on a
directive which he had received from Hitler. The letter was quite long,
several pages in handwriting. In that letter, it was expressed that
Hitler considered the resistance movement in France a tremendous danger
for the German troops. It could be seen that the methods previously
used were not sufficient to suppress that movement. There was no sense
in passing sentences of prison terms--considering conditions as they
were--which were handed down after a long period. That was not the
right deterrent which the armed forces should employ; therefore, new
means would have to be found.
Q. Now, Witness, you have given us some background on the history of
the Nacht und Nebel Decree. Will you tell us with some particularity
how the Nacht und Nebel program was supposed to work? In what way were
the resisters to be handled under the Nacht und Nebel Decree?
A. Yes. That was also stated in that letter by Keitel. The Fuehrer
demanded that Frenchmen who were suspected of such acts, during night
and fog--that is where the expression comes from--should be brought
across the border and that in Germany they should be held completely
incommunicado. That should only not apply in those cases where
immediately a death sentence could be passed in France. This measure
could be used as a deterrent but not the procedures as had been used
heretofore. That was the general plan of Hitler’s which did not include
anything about the question as to who should deal with these people
after they had been brought to Germany.
Q. Now, Witness, did you, in your position with the High Command of the
Armed Forces negotiate with the Ministry of Justice regarding the Nacht
und Nebel Decree?
A. Yes, but not immediately. At first, in a lengthy conference with
Field Marshal Keitel, I tried to thwart the entire plan because
I disagreed--I definitely disagreed with it. Details about that
conference, I am sure, are not interesting for us now. In doing that,
I only had a very limited success; that is, Keitel said that he would
be ready to speak to the Fuehrer once more. But already on the occasion
of this first conference, he stated that the Fuehrer insisted on the
carrying out of that concept and he used a term which I cannot forget.
Hitler had said with reference to that--“Nobody can deny that I am a
revolutionary of considerable stature. Then I should know best how
uprisings can be suppressed.” Keitel then spoke once more to Hitler, as
he stated, but it was of no avail. According to Keitel’s information,
Hitler said that there were things of which he understood more than
jurists do.
In the conference with Keitel, I raised the question immediately as to
who should deal with these matters in Germany now. Thereupon, Keitel
said, that it would be most according to the desire of the Fuehrer if
the Secret State Police would deal with it. But we were against that
from the very beginning, and also Admiral Canaris was against it with
the same severity.
After the argument had gone back and forth, I received the permission
from Keitel to get in touch with the Ministry of Justice.
Q. Do you have any reason which you can state at this time as to why
Hitler preferred the Ministry of Justice rather than the army court
system to deal with Nacht und Nebel cases?
A. That question can only have been discussed between Keitel and
Hitler. It was a way out which I had suggested, because under all
circumstances I wanted to achieve that these matters should continue to
be dealt with by judges, and since the aversion of Hitler against the
armed forces justice was known, it could be assumed that he would still
prefer civilian court to us.
* * * * * * *
Q. When did you first confer with a member of the Ministry of Justice
regarding the assumption by the Ministry of Justice of the Nacht und
Nebel program?
A. I went to see State Secretary Freisler, I believe, in October 1941.
I went to Freisler because he dealt with the criminal cases in the
Ministry. He was in charge of them.
Q. Can you tell us what purpose you had in mind in going to Freisler;
what proposition did you discuss with him?
A. I discussed with him the proposition that the cases which the
military courts in France would not keep should be taken over and tried
by the civilian justice administration.
Q. What was Freisler’s reaction to this suggestion which you made?
A. He was not enthusiastic about it but he agreed that one had to try
and keep these cases for the administration of justice as such.
Q. Can you tell me this? Did Freisler have the authority to agree on
behalf of the Reich Ministry of Justice to assume the trying of Nacht
und Nebel cases?
A. That question I can only answer by saying that Freisler told me that
first he had to think it over; and secondly, he had to discuss it with
State Secretary Schlegelberger who was at that time in charge of the
Ministry.
Q. Is it your impression that Schlegelberger was the individual in the
Ministry of Justice to whom Freisler went to secure permission and
authority on behalf of the Ministry of Justice to try the Nacht und
Nebel cases?
A. That is hard to answer. I can only answer it out of my general
background by saying that this was a question of considerable
importance, and I thought it was quite clear that Freisler told me that
he had to ask the man who was in charge of the Ministry, the acting
Minister.
Q. Mr. Lehmann, on 23 December 1946 you put your name to an affidavit.
Do you recall signing an affidavit about that time?
A. Yes.
Q. I point out to you that this affidavit is now in evidence before
this Court as Document NG-484,[462] Prosecution Exhibit 307. I wish to
read to you a statement from that affidavit, and ask you a question
concerning it after I have read it. The statement is as follows:
“Schlegelberger, who was then acting Minister of Justice, was in my
opinion the only person who could consent to take over these Nacht und
Nebel cases by the Ministry of Justice.” I ask you now, do you still
agree with that statement?
A. Yes, with the reservations that I have made before; as far as I was
informed about the routine in the Ministry.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT
SCHLEGELBERGER[463]
_DIRECT EXAMINATION_
* * * * * * *
DR. KUBUSCHOK (defense counsel for defendant Schlegelberger):
To what extent did you participate in the legislative work and the
execution of the Night and Fog Decree, the Nacht und Nebel Erlass?
DEFENDANT SCHLEGELBERGER: First, I must make a temporal
limitation here. The Tribunal knows that on 20 August 1942 I left the
Ministry of Justice. Thus, in regard to my person, only the previous
period can be considered. During that time the procedure, as well as
taking prisoners into custody, remained exclusively in the hands of the
Ministry of Justice.
If I am supposed to make some statements about the decree, I would
like to emphasize that the jurisdiction of the Ministry did not refer
to the western territories, which are under consideration here. This
was entirely under the competence of the military commanders. Hitler
had issued the order to Keitel that in the future merely in very clear
cases, and in such cases where the death sentence could be expected
with certainty, the military courts were to pass sentences. The rest
of the culprits were, for the purpose of a deterrent by the police, to
be transported to Germany to remain under the custody of the police,
and--and this is the expression he used--to disappear during night and
fog.
The chief of the legal division of the Wehrmacht, Dr. Lehmann, realized
what the situation was, and after unsuccessful attempts with Keitel
and with Hitler he tried to have it avoided that the prisoners be left
in the custody of the police by having them tried before the ordinary
courts. He called on Freisler. Freisler did not disagree with Lehmann,
and basically asked for my agreement. I gave my approval.
Here, too, I had to make a serious decision. On the one hand, the
fate of the prisoners was concerned. If they were in police custody,
their fate could not be controlled. On the other hand, there was
the necessity to loosen certain regulations which formed definite
components of our legal system.
The Fuehrer order was based on the fundamental idea that the deterring
force, through the cutting off of the prisoners from every contact
with the outside world, could be achieved in this manner. If we now
wanted--and this is the decisive question--to have the direction of
the prisoners, if we wanted to avoid having the prisoners remain
in police custody and thus not carry out Hitler’s decree but break
its head, no other recourse was left to us but to conduct our court
proceedings under the point of view of secrecy, since otherwise Hitler
would immediately have forbidden and actually prevented the fact that
ordinary courts should handle these matters.
However, in order to avoid any doubt, I want to emphasize expressly
in the following that I have to state we are concerned only with
regulations governing proceedings. The NN prisoners were supposed,
and were, to be tried materially according to the same regulations
which would have applied to them by the courts martial in the occupied
territories. The rules of procedure had been curtailed to the utmost
extent. In German law we also know of the possibility, because of the
endangering of the security of the State, that the public is excluded
when the opinion on which the sentence is based is pronounced. We now
had to take one more step, to issue an order to make available the
possibility that the pronouncing of the sentence itself would not be
made in public. One could not avoid the recognition that otherwise the
secrecy would not be maintained, and I have to repeat, the cases would
have been taken out of our hands immediately.
Everything else was based on this. For example, the limitation in
the selection of defense counsel. Germany had a very eminent legal
profession, and in my opinion it was a matter of course that every
lawyer fulfilled the oath of secrecy given to him by law. However,
one had to realize that as with every other profession, the lawyer’s
profession too, during such times, was permeated with bearers of the
resistance idea, and therefore, here too, a certain caution was needed
and it was necessary to limit the selection of defense counsel.
It is well known that in the executive order which I signed--and it
was the same as the draft submitted in the document book[464]--that I
limited the use of foreign evidence. However, if one thinks the matter
through correctly and thinks of the practical application, one will
realize that this limitation worked only in favor of the defendants
because numerous acquittals occurred according to the principle,
that governs other law as well as ours, _in dubio pro reo_.
In accordance with this basic attitude, it was decisive, under all
circumstances, to avoid the subsequent transfer of the NN prisoners to
the police.
PRESIDING JUDGE BRAND: We will recess until 1:30 this afternoon.
_AFTERNOON SESSION_
(_The hearing reconvened at 1330 hours, 30 June 1947_)
THE MARSHAL: The Tribunal is again in session.
DR. KUBUSCHOK: We have come to the discussion of the NN
regulations. Will you please continue there?
DEFENDANT SCHLEGELBERGER: I have taken the liberty to explain
that the purpose in including ourselves in the procedure was to
counteract Hitler’s plan to have prisoners in the hands of the police.
There arose a problem--If one had to consider that in the regular
course of procedure a penalty was found which expired before the end
of the war. In such cases there would not have been any possibility
to keep these people but they had to be taken over by the police
and that would have thwarted the purpose--of the inclusion of our
administration. That, one had to consider. The matter was simple, if
the prosecutor, after examining the facts, arrived at the result that
the penalty had to be so low that the term would expire before the
expected end of the war because then he did not demand that a date for
the main trial be set; the procedure remained pending and the accused
remained in the custody of the administration of justice. The situation
however could become more difficult if the prosecutor intended to
demand a higher penalty which probably would expire after the end of
the war and if the court would arrive at a more lenient sentence. The
way out could be found only by quashing the proceedings in time and in
order to do that various means could be applied. It could have been put
to the court, that is, by legislation of course, to make a decision
for this continuance, and could also put the prosecutor in a position
where he would demand discontinuance and then let the court decide for
discontinuance. I took the latter approach. Therefore, I provided that
if the court wanted to deviate from the demands of the prosecution it
should inform the prosecutor so that he had the possibility to demand
discontinuance, but with all emphasis I want to stress there can be no
question that the courts were to be bound in any way by the demands for
a penalty on the part of the prosecutor. That would have been quite
irresponsible.
PRESIDING JUDGE BRAND: Dr. Schlegelberger, are you still
speaking with reference to the NN case?
DEFENDANT SCHLEGELBERGER: Yes. So, it is quite out of the
question that the courts were to be bound in any way to the penalty as
requested by the prosecutor as Freisler has stated in a letter which
was written for special service to Thierack and which is quite wrong,
but I repeat again, the intention was only for the court to tell the
prosecutor, “we are arriving at a milder sentence than you requested,”
so as to put the prosecutor in position to demand discontinuance; then
the matter remained in the hands of the administration of justice; that
is to say that the defendant was in the custody of the administration
of justice. May I summarize. The provisions concerning secrecy had
to be made so that the matter would not be taken out of our hands by
Hitler. I was faced with the problem as to whether I should refuse
to take over the NN case altogether, and the Tribunal will recognize
that that would have been very simple for me. I could have held the
position that as far as my department was concerned that I had nothing
to do with the matter and therefore could reject it or refuse to have
anything to do with it. But I could not take the responsibility to
assist, to contribute, that the Hitler order be carried out and that
the NN prisoners remain in the custody of the police. And, I believe
that that decision has also found its justification in the findings of
the International Military Tribunal concerning the treatment of these
prisoners in the hands of the Gestapo.[465]
* * * * * * *
_EXAMINATION BY THE TRIBUNAL_
JUDGE HARDING: Dr. Schlegelberger, you have testified that
you favored the decree as to Poles and Jews and the taking over of NN
prisoners for trial, to avoid having these people turned over to the
police, is that correct?
DEFENDANT SCHLEGELBERGER: (Nodded in the affirmative.)
Q. Why was that?
A. May I ask you a question, namely, does this question refer to the
Poles and Jews, or as I now understand it, to the NN prisoners?
Q. It applies to both.
A. Well, that was for the following reason. From the cases of transfer
about which I reported, I saw that the police was the instrument
of power that Hitler used in order to do away with certain people
without any legal procedure, and I wanted to give those people a legal
procedure with a regular trial.
Q. Now the administration of justice at one time, at least, was
responsible for the prosecution and trial of all crimes committed in
the Reich, isn’t that correct?
A. Yes.
Q. Was there ever an investigation with subsequent trial after 1
September 1939 for the abuse or murder of a person in the hands of the
police or in a concentration camp?
A. I can answer that question by saying that the Ministry of Justice
as far as I am informed--that is, these matters were in the penal
sector--interfered in every case, even in the case of abuses and
concentration camps where they could actually do something about it,
only since 1939--I don’t remember the exact date--these matters were
taken out of our hands through the special jurisdiction of the SS.
Q. I don’t believe you quite answered my question. Did the Ministry of
Justice ever call or ever prosecute a member of the police or somebody
connected with the concentration camp because of abuse of the prisoners
or murder of prisoners in their hands?
A. Yes, the Ministry did so.
Q. In what cases? That was after 1 September 1939.
A. In any case, it did happen before September 1939. I regret, Your
Honor, that I cannot give exhaustive information about this because
those are events and trials which were outside of my official duty, but
I can say with certainty and under the oath under which I am now that
because of abuse in concentration camps measures were taken with the
utmost energy.
Q. Did a person who had been handed over to the police or who was sent
to a concentration camp, including Poles and other foreigners, have any
recourse to the law as administered in the Reich, for his protection?
A. Well, if these people were in the hands of the police, we could
not extend that protection to them. As long as those people were in a
concentration camp, and to the extent that we had any jurisdiction over
concentration camps--to that extent we always intervened, if somehow or
other we could find out that there had been some abuse; but later on,
from 1939 on, these matters came under the special SS jurisdiction, and
we were no longer in a position to interfere[466].
Q. After that these people had no recourse to the law as administered
in the Reich?
A. We could not give them any legal recourse; we of the Ministry of
Justice could not extend legal protection to them.
Q. Did they have any legal protection?
A. Well, I would like to say there was a jurisdiction over the inmates
of the concentration camp and this was in the jurisdiction of the
SS courts. That SS jurisdiction in accordance with its duty, could
intervene in the same manner as we if anything had happened, that was
the legal protection afforded to them.
Q. That was the only legal protection they had?
A. Yes, I could not name any other.
Q. Now, by what laws, orders, or decrees were these people left to the
sole jurisdiction of the SS and the police?
A. Well, the Poles and Jews, NN prisoners were only handed over to the
police after my time in office. As long as I was in office this did not
happen.
Q. I mean, by what order or decree--you speak of a time when the SS had
their own courts--by what order or decree--
A. The SS got a special jurisdiction through a law of 1939. The handing
over of Poles and Jews, of the NN prisoners, and other people took
place through measures of the year 1942, I believe. However, I do not
want to make this statement with certainty, because it was after I had
resigned.
Q. After this order setting up special jurisdiction for the SS the
Ministry of Justice could not prosecute them, isn’t that correct--or
try them?
A. No, it couldn’t.
Q. Now, I have here this decree which is found in volume 2, on page
55, decree of 17 October 1939, relative to the Special Courts for the
SS.[467] Are you familiar with that?
A. Yes.
Q. After that the Ministry of Justice could not try these people for
abuse or murder of persons in their hands, is that correct?
A. Yes, I assume so. Please take into consideration when considering
my answers that these matters were apart from my official activity.
Therefore, I can rather give an expert opinion than a testimony as a
witness.
Q. Well, the effect of this decree was to deprive the people in the
hands of the police of all legal recourse, is that not correct?
A. The effect was in any case that they had no recourse to the ordinary
means of administration of justice. But the SS jurisdiction in my
opinion had the same duties, the same possibilities for their people as
we had.
Q. The only recourse, then, was to the SS administration of
justice--now, on page 56 there is this decree which is signed by
you, implementing that order, which places the police beyond the
administration of justice.
A. I didn’t quite understand.
Q. I have here on page 56 of volume 2 a decree concerning the
jurisdiction of SS courts and police courts in the Protectorate Bohemia
and Moravia[468] which implements to some extent the preceding decree
which I called to your attention. This decree is signed by you, which
sets up Special Courts for the police, that is, takes them out from
under the administration of justice. Now, this is signed by you. Do you
have any explanation of that?
A. May I ask you to state the date again, just the date?
Q. 15 July 1942.
A. Is that an order which was cosigned by Keitel? (Document handed to
the witness.)
Yes. This decree, however, I believe, has nothing to do with the
matters we have discussed so far. This decree as far as I remember, was
connected with a decree of January of the same year. In this decree
of January in the Protectorate military jurisdiction was rescinded,
and only for certain cases the Commander in Chief of the Wehrmacht was
granted the right, in the matter of attacks against the Wehrmacht,
to found the competency of Wehrmacht courts. The text of this decree
which concerns itself with the policy is almost literally the same
one as that of the decree of January 1942 regarding the Wehrmacht.
Here in this decree for the police, they were concerned with certain
courts for the SS. But the Wehrmacht SS [sic], which was considered a
special group of the SS was supposed to be treated in the same way [as
the Wehrmacht]. Therefore, after a discussion between Keitel and the
commander of the SS Wehrmacht [sic], the possibility just as it was
given to the Wehrmacht, was given to the SS as a fighting troop, to
found such courts. But this has nothing to do with the question of SS
jurisdiction, which is another question.
Q. Were there any other orders or decrees issued whereby prosecution
of SS and similar units was taken out from under the administration of
justice, and if so, what were they?
A. Yes, there was a special law about SS jurisdiction. At the moment,
I cannot tell you the date, but it was from 1939. That is the civilian
SS. But this decree refers to the SS as part of the Wehrmacht.
Q. Well, is that the decree of 17 September 1939 that I called your
attention to?
A. The decree which you were kind enough to show to me just now.
MR. LAFOLLETTE: Will Your Honor permit me? It is October. Your
Honor said September.
JUDGE HARDING: It is October, yes.
DEFENDANT SCHLEGELBERGER: Yes, 17 October 1939. That is the
decree about the SS jurisdiction.
Q. After that decree, did the Ministry of Justice have any means
whereby they could protect a person in the hands of the police in any
way whatsoever?
A. In my opinion, no; and that is why I tried to keep all these people
away from the police. That is why I wanted to keep all these people
within the sphere of the administration of justice, so that I could
protect them.
Q. Then these foreigners, Poles, and Jews in the hands of the police
were beyond any recourse of law in Germany, is that correct?
A. Not in my opinion.
Q. What recourse did they have?
A. Well, they probably had to turn to the higher SS office and to ask
for help.
Q. Was that recourse in law or is that merely administrative?
A. Yes. That was more administrative.
JUDGE HARDING: That’s all. That answers my question.
* * * * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENDANT VON AMMON[469]
_DIRECT EXAMINATION_
* * * * * * *
DR. KUBUSCHOK (counsel for defendant von Ammon): You have
stated that you were not a confirmed National Socialist. In view of
your attitude, did you not have conflict of conscience sometimes during
your activity in the Ministry of Justice?
DEFENDANT VON AMMON: To a certain extent I have to answer
“yes” to that question. In my official activity, I occasionally had to
apply laws or other legal regulations or had to follow instructions
issued by my superiors with which I was not quite in agreement in
my own mind. In such cases I considered it my duty to follow such
regulations and provisions which in my opinion though unpleasant were
after all effective. Likewise, I considered it my duty to follow
the instructions issued by my superiors. However, I would not have
considered myself obligated to follow instructions issued by my
superiors which were contrary to law. Such illegal orders however
were not given to me. In such cases, however, a certain amount was
left up to my own discretion and that happened in many cases. When
I applied that discretion I tried as far as possible to make my own
opinion apply. Of course, the possibility in those directions were not
overly large since as a Referent I had to obtain the agreement of my
superiors, the more important decisions. Because of my lenient attitude
I was frequently objected to, especially by my superior Vollmer and the
Minister of Justice Thierack.
Q. Did your attitude change when the war broke out?
A. Due to the outbreak of the war nothing changed in my basic attitude.
I was of the opinion that since the war had broken out, independent
of its consequences for national socialism, it would bring about the
decision, “to be or not to be” for Germany. Therefore, I believed that
every German had to fulfill his duty in his official position.
Q. I now come to the main charge which the prosecution has raised
against you in regard to your dealing with the so-called NN cases.
Under what circumstances were you entrusted with this new field of work?
A. The distribution of the Referate [sections] was as a rule made by
order of the department chief without asking the Referent about it in
advance. Thus, I too in February 1942 was assigned by my department
chief, Ministerial Director Crohne, to work with NN cases without my
knowing for the time being what these NN cases were all about.
Q. What tasks and authorization did you have as Referent of Department
IV of the Ministry of Justice for NN cases?
A. In order to answer that question I first have to describe briefly
the competency of Departments III, IV, and V.
Department III was the department for criminal legislation, Department
IV was for the administration of criminal law, Department V was
the department for the administration of penalties. It belonged to
the competency of Department III; the preparations of the laws and
regulations similar to laws, the housing of prisoners belonged to the
competence of Department V and the treatment of these prisoners while
they were in prison. Department IV, that is my department, dealt in the
main with the cases against the defendants until they were sentenced by
a court, including the clemency procedure. Furthermore, the issuance of
general provisions regarding legal procedure in as far as Department
III was concerned was not competent for this.
Q. As far as Department V was competent, what authorization did you as
Referent have with regulation to your superiors?
A. Gramm and Mettgenberg have already testified to this, here on the
witness stand. I only have to add some supplementary remarks. As
Referent, I had to a certain extent the right to give my signature,
that is to say, to a certain extent I could give written or oral
statements by order. This right for signature, however, was limited,
since due to my being subordinate to the department chief, and for the
most part of my activities I was subordinate also to a subdepartment
chief. During the first month of my activity in the NN cases my section
was directly under the department chief. A few months later, however,
Mettgenberg was put in charge as a subdepartment chief between me and
the department chief. My authority in relation to my subdepartment
chief and department chief were limited through general regulations
rather carefully. The regulations applied which were contained in
Exhibit 510 submitted by the prosecution.[470] May I refer to these
regulations? Regarding the letters by the Ministry of Justice that
were sent outside the Ministry of Justice which were submitted by the
prosecution, in accordance with the provisions I mentioned, I did
not sign a single one finally, but all the letters after I had also
cosigned them I submitted to my subdepartment chief for signature. He
then for the most referred them to the subdepartment chief or even to
the under secretary or to the minister. If the prosecution, contrary to
this, in this submission of several documents, stated that the letters
of the Ministry of Justice were signed by me, that is an error. There
are throughout letters for which I did give a cosignature, that is in
the right hand lower corner, they bear my initials, but one of my
superiors gave the final signature.
* * * * * * *
Q. As Referent in NN cases, did you have a large staff of assistants?
A. No. I never had more than one assistant, and he worked only part of
the time in NN cases, and then only at the beginning of my activity
with NN cases. From the beginning of 1943 on I worked entirely without
any assistance. From that time on, due to the heightened drafting
for the Wehrmacht, younger gentlemen who could be assistants, were
available only to a very limited extent in the Ministry of Justice.
From that time on I had only a so-called “Mittlerer Beamter,” a civil
servant in the intermediate level [of civil service] for registration
and filing.
There was a special provision only for preparation of clemency pleas in
death sentence cases. For that work, I had assistance from time to time.
Q. I refer to that extent to Document NG-988, Prosecution Exhibit
510, the plan of distribution of work which shows further facts.
Witness, please give us a survey over the periods when the general
administration of justice participated in the NN cases.
A. We can distinguish between two periods during which the general
administration of justice was concerned with NN cases. The first period
extends from February 1942 until October 1942; the second from October
1942 until September 1944, and to some extent until the end of the war.
During the first period the executive regulations of the Reich Ministry
of Justice of 6 February 1942[471] were decisive in their original form
as they had been issued by Schlegelberger and Freisler. Two factors
characterized this period. First, the police were involved in the NN
cases only to the extent that the transportation of the NN prisoners
from the occupied territories was carried out by the police; and
secondly, for the sentencing of NN cases only some Special Courts were
competent. The competency of the People’s Court did not exist at that
time, for those cases.
The second period begins with the changes which were introduced soon
after Thierack assumed office. The police now also became competent to
the extent that the NN prisoners, for the detention of whom no legal
reason existed any more, were transferred to the police for protective
custody for the duration of the war.[472] And for the trying of NN
cases, in addition to the individual Special Courts, the People’s
Court now is competent too. This second period ends with the order
that the NN prisoners should generally be returned to the police. This
order was issued in September 1944. The return, however, was carried
out until the end of the war only partly so that at the end of the war
numerous NN prisoners were still in the detention of the administration
of justice.
Q. We shall now turn to the first period for which the executive
regulations of 6 February 1942 were decisive. Witness, were you
involved in the drafting of these regulations and the discussions
with the OKW which preceded this decree and which the witness Lehmann
testified about?
A. No. I neither participated in the formulation of the regulations
nor in the preceding negotiations. The regulations were worked out
in the departments for penal legislation, first Department II and
later III, and at that time I did not belong to either of them. About
the regulations and the preceding negotiations, I heard only on the
day when the regulations were issued. On that day--it was 6 February
1942--the presidents of the courts of appeal and the attorneys general
of those districts in which the NN cases should in the future be tried,
had been ordered to the Ministry of Justice for a discussion.
Immediately preceding the beginning of the meeting my then department
chief, Ministerial Director Crohne, had a message sent to me that I
should come to the meeting because in future I would have to work with
the penal cases which would result from the newly issued regulations.
I then attended that meeting and for the first time, from the mouth of
State Secretary Freisler, who was presiding over the meeting, I heard
about the Night and Fog Decree and the executive regulations issued
pursuant to it.
Q. In the executive regulations of 6 February 1942 there are provisions
about the limitation of foreign evidence. Paragraph 5 of the executive
regulations, Exhibit 306[473], which, however, are here only in draft
form gives this regulation--The use of foreign evidence material
requires the prior agreement of the public prosecutor. Furthermore,
paragraph 4 of the same regulation provides that the senior public
prosecutor has to obtain the decision of the Reich Minister of Justice
before he can use foreign evidence material or can agree to the use
of foreign evidence material by the court. This latter regulation is
contained in Exhibit 308[474].
The indictment asserts that it was one of the purposes of the NN
procedure to prevent the defendants from having access to witnesses or
any other evidence. What do you have to say about this?
A. First, I would like to correct you, Counsel. You quoted paragraph 4
of the circular decree of 6 February 1942, and by mistake you said that
this was the same provision as paragraph 5 which you mentioned before.
These are two different regulations. First is paragraph 5 of the
executive order of 6 February 1942. That is Exhibit 306, and the second
regulation is paragraph 4 of the circular decree of the same day, and
that is Exhibit 308.
In answer to the question of what I have to say about the allegation
in the indictment, that it was one of the purposes of the NN procedure
to make it impossible for the defendants to have access to witnesses
or any other evidence, I have to say that that assumption is entirely
wrong. The limitations on foreign evidence material was not one of the
purposes of the NN procedure, but the absolutely undesired result which
resulted from the necessity of keeping the matter secret.
It could never result in a disadvantage for the defendant but would
of necessity result in favor of the defendant. The German criminal
procedure is based on the assumption that the defendant has no duty
or no authority to prove anything. Therefore, any doubt had to work
in favor of the defendant. In the same way, doubts which arose out of
the limitation of foreign evidence worked in favor of the defendant.
Moreover, foreign evidence was in no way excluded altogether but it
should only be procured and used in such a way that the secrecy of the
proceedings and the keeping incommunicado of the defendant would not be
endangered.
Q. What was the effect of the regulations about the limitation of
foreign evidence in practice?
A. According to my observation, in the majority of cases these
regulations did not lead to any difficulties. In many cases the
clarification of the facts was accomplished by the statements of the
defendants or codefendants or on the basis of German evidence. This
was the case especially in the numerous cases in which simple facts
were involved. Thus, for instance, in most of the cases of illegal
possession of weapons, a weapon was found in the possession of the
defendant. Beyond this, the use of foreign evidence was admissible as
far as the secrecy of the proceedings was not endangered by this. Thus,
the Ministry of Justice in any case permitted that a foreign witness
not before the court trying the case but in the occupied territories
could be examined by an investigating judge. If this, however, did not
bring about the desired result, if there still existed some doubt as
to the guilt, the defendant had to be, and was, acquitted. According
to my observations, probably in all courts which had to deal with NN
cases, a large number of acquittals were pronounced, because owing to
the limitation of foreign evidence defendants could not be convicted.
I remember, in particular, extensive trials before the Special
Court of Oppeln against numerous defendants who were charged with
participation in dangerous resistance movements in Belgium. According
to the indictment, I was under the impression that heavy sentences
would be pronounced. In effect, however, the result of the trials was
quite different. The defendants maintained that it was not a dangerous
resistance movement, but a harmless club. In view of the limitation
of foreign evidence it was impossible to disprove this defense. Thus,
the defendants had to be acquitted, or they could be given only slight
penalties because of participation in a club not authorized by the
military commander.
Q. Paragraph 6 of the executive orders of 6 February 1942 which have
already been mentioned--that is, Exhibit 306[475]--makes the following
provision: The public prosecutor can, until the sentence is pronounced,
withdraw the indictment or ask that the trial be postponed. The court
has to agree to the application of the prosecutor for suspension. If
the court wants to deviate from the application made by the public
prosecution, it has first of all, to afford them an opportunity to
state their opinion.
Witness, what can you say about this regulation?
A. Dr. Schlegelberger, when he was examined, commented extensively on
these regulations. I only have to add the following: The procedure
described was, as Dr. Schlegelberger stated, introduced in order
to prevent NN prisoners from being transferred to the police. For
the court itself, in view of its prestige, it probably was not very
pleasant. The authors of that regulation realized that too. As I said
already in my affidavit of 17 December 1946, that is Exhibit 337[476],
even Freisler said in this meeting of 6 February 1942, that with this
regulation one had reached the utmost limit of what one could expect of
the court. The authors of this regulation, however, believed that they
had to put up with that regulation in the interest of the NN prisoners.
Q. The regulation of paragraph 6 of the executive orders which we just
discussed--was it ever applied in practice?
A. I don’t believe so. The regulation was in effect only for a brief
period. Thierack, in October 1942 soon after he became Minister,
rescinded it. During the time that this regulation was in effect, as
far as I remember, only very few NN cases were tried. These were clear
cases in which the court had no misgivings against agreeing with the
plea of the prosecutor. If that regulation would have been applied, the
Ministry certainly would have been informed about it, and I certainly
would still remember it.
Q. On the changes which Thierack ordered in October 1942, Dr.
Mettgenberg has commented.[477] Did you have misgivings against these
changes, especially also against the transfer of NN prisoners to the
police?
A. The changes which Thierack made also had, without doubt, a favorable
side. The unpleasant regulation of paragraph 6 of the executive
order of 6 February 1942 was removed. Even Freisler, as I mentioned
before, stated about it that with this regulation the outside limit
had been reached of what could be expected of the courts. Now, this
bad condition was removed, that the justice authorities of the
administration had to detain persons in whose cases the reason for
detention had to be maintained by the procedure discussed by Dr.
Schlegelberger. On the other hand, the transfer of the NN prisoners to
the Gestapo was without doubt unpleasant. After the competency of the
general administration of justice for the detention of NN prisoners
who were acquitted or whose time of arrest had been removed, it again
was returned to the armed forces. According to the provision of the NN
decree, however, the armed forces, as a rule at least, were not allowed
to return these NN prisoners to the occupied territories. Neither,
for the reason of keeping this matter secret, could they be set free
in Germany. The only way out that Thierack saw was their detention by
the Gestapo and the OKW who in the last instance had to decide about
this affair agreed to the suggestion by Thierack. If now I am asked
if, in regard to the treatment of the prisoners by the police, I had
misgivings, I can answer that in the following way: The prisoners were
handed over to the police with the express provision that the detention
was carried out only for reason of secrecy and in the interest of
keeping the whole affair secret. Therefore, the Gestapo merely had
to detain them and not to carry out a penalty. As far as I know, in
the negotiations between Crohne and the Gestapo, the representatives
of the Gestapo stated that in the case of detention of NN prisoners,
they would take into consideration the fact that against the prisoners
personally there was no longer any charge. Later on, the Reich Leader
SS also ordered expressly that the NN prisoners, who were handed over
to the police, always should be put on the level of Protective Custody
I which was the most lenient level.
Q. I refer to Exhibit 328[478] in regard to the last statements made by
the witness.
Witness, as Mettgenberg testified in September 1944, the general
administration of justice was again deprived of the competency for NN
cases. It was ordered that NN prisoners generally should be handed back
to police. What can you say about this?
A. I can confirm the statements made by Dr. Mettgenberg to their
fullest extent and only have to make a few supplementary remarks. As
Mettgenberg already testified, in the discussions at the OKW, which
took place in the beginning of September 1944, the witness Hecker and
I represented the Ministry of Justice. Since the matter could not be
reported to Minister Thierack in advance, my department chief, Vollmer,
had given me the instruction to reserve the right for the Minister to
state his opinion. I acted accordingly during the negotiations. The
representatives of the OKW then also agreed that the OKW would forward
a draft of the intended order of the OKW to the Ministry of Justice and
that the Ministry of Justice could then state its opinion on the draft,
in writing.
In place of that the OKW then sent us an already filed decree which
ordered the discontinuance of the NN procedures and the transfer of
NN prisoners to the police. When I reported this to Mettgenberg and
together with him to Vollmer, he was very much displeased about the
manner of handling used by the armed forces. Vollmer said the OKW
had byplayed us in that manner, and he instructed me to talk to the
representative of the OKW by telephone and protest against this manner
of conducting this business. He said the decisive thing, however, was
that the regulation made by the OKW had to be accepted according to the
division of business, as the OKW was competent for NN cases.
In accordance with the instructions given by Vollmer, I then telephoned
the representative of the OKW and expressed our surprise at the
manner of handling this. The representative replied that this was a
misunderstanding and he regretted it very much; in any case I can
testify that on the part of Department IV of the Ministry of Justice,
no agreement for these regulations was given, but that Department IV
only through force submitted to the regulation which was made without
its agreement.
Q. The meeting in the building in the Reich Military Supreme Court
in the beginning of September 1944 was presided over by Dr. Werner
Huelle and at that time he was supreme judge. I submit an affidavit by
Dr. Huelle that was taken on 17 July 1947.[479] Following the usual
introduction formula, it reads as follows:
“By order of the chief of the legal department of the Wehrmacht
I presided over the discussion in the beginning of September
1944 in the building of the Reich Military Supreme Court in
Berlin. In this meeting the question of the transfer of the NN
prisoners was dealt with. The basis of this discussion was a
Fuehrer order, which had ordered the return of the NN prisoners
to the police.
“The representative of the RSHA insisted on the giving back of
the prisoners who had already been sentenced, since the will of
the Fuehrer referred also to those and by saying so he referred
to a classification which Himmler had written about to Hitler.
“Although in view of this the discussion could have only the
value of a technical discussion. I consider it absolutely
possible that the referents of the Reich Ministry of Justice
reserve to themselves the right of obtaining the opinion
of their minister since they had not received instructions
from him. More exact statements I can no longer make from
memory. In what manner and by whom my office then received a
statement by the Ministry of Justice, I do not know since I
was not the Referent. With absolute certainty, however, I can
say that only the transfer to the police for the purpose of
commitment for labor for urgent armament work was considered
for which the manpower of the prisoners was needed. My
superior, Generaloberstabsrichter Dr. Lehmann, who himself
had formerly been a member of the Ministry of Justice, always
attached importance to relations without frictions with the
administration of justice, and therefore, he had the questions
which interested both offices discussed in common.”
PRESIDING JUDGE BRAND: Will you tell me the author of that
affidavit? I did not catch the name.
DR. KUBUSCHOK: Huelle. I submit this affidavit and ask to
reserve the number, von Ammon Exhibit No. 2, for this affidavit.
* * * * * * *
DR. KUBUSCHOK: From the documents submitted by the
prosecution, it is apparent that keeping NN prisoners incommunicado was
one of the main peculiarities of the NN procedure which was applied
from the very beginning. In the opening statement by the prosecution,
among others you too are being charged with having systematically
carried out and approved these regulations about keeping the procedure
secret. In this connection, Exhibit 319[480] is of interest. It
contains a circular decree by the Reich Minister of Justice in which
several directives are given as to how agencies of the Ministry of
Justice are to handle NN cases in order not to endanger the cutting
off of NN prisoners from the outside world. What can you say about the
origin of this circular decree?
DEFENDANT VON AMMON: The circular decree was caused by
reports of the Chief Public Prosecutors in Cologne and Essen, about
the difficulties resulting from the strict regulations about keeping
the NN prisoners incommunicado, especially when NN prisoners died, and
they had made suggestions for overcoming these difficulties. The report
of the Chief Public Prosecutor in Cologne is contained in Exhibit
314.[481] In this report the decisive questions are dealt with under
paragraph [II and] III. The report of the Chief Public Prosecutor in
Essen was not submitted in this trial here.
PRESIDING JUDGE BRAND: The morning recess--15 minutes.
DR. KUBUSCHOK: Before the recess, you answered the question
as to the origin of the circular decree which we discussed. Please
continue.
DEFENDANT VON AMMON: The circular decree, Exhibit 319, which
took issue with the questions raised in the reports from the senior
public prosecutor at Cologne and Essen was, as Mr. Mettgenberg has
already stated here, the joint work of both Departments III and IV of
the Ministry of Justice. I participated in the work on that particular
decree, insofar as the competence of my department was affected by
drafting the provisions contained in it. Various questions that were
settled in that circular decree did not affect the competence of
Department IV at all. Thus, for example, the question of burials of
NN prisoners who died a natural death while serving their sentences
and the question of the possessions they left behind was a matter
for Department V to deal with. To that extent only Department V was
responsible for the provisions which had been worked out. Apart from my
section, there were other sections, partly in Department IV and partly
in other departments which were competent. The questions which emerged
therefore had to be dealt with by these various sections cooperating.
Q. What are your comments about the contents of the circular decree in
general?