A. And there the distinction was made, but according to the Nuernberg

laws, which were only of interest before the administrative authorities

and not for these trials, the distinction was made whether he was

one-eighth, one-fourth, or one-half Jew, that is to say, a person of

mixed descent of that degree, or whether he was a full Aryan. But I say

that that is a question which for carrying out these descent cases was

of no importance.

Q. Will you tell me then, and do it briefly, because I know you can,

what did the person have to prove in order to establish in a descent

case that he was an Aryan?

A. It was established, Mr. President, that contrary to the legal

assumptions, he was not the descendant of that and that father. Nothing

else.

Q. That is, that he was not the descendant of his purported father.

A. Of the purported father according to the legal assumption.

Q. That is, if the father was a Jew.

A. If the father was a Jew.

Q. Then he had to prove he was a bastard. Is that what you mean?

A. Yes. If it was at all a question of legitimacy. There were such

cases of descent also outside of marriage, illegitimate. These descent

cases were not restricted to Jews. There were not at all any special

regulations for Jews.

* * * * * * *

3. NATIONALS OF THE WESTERN OCCUPIED COUNTRIES--

THE NIGHT AND FOG DECREE

TRANSLATION OF DOCUMENT 671-PS

PROSECUTION EXHIBIT 304

LETTER FROM KEITEL, CHIEF OF ARMED FORCES HIGH COMMAND, TO MINISTRY OF

JUSTICE, 12 DECEMBER 1941, TRANSMITTING HITLER’S NIGHT AND FOG DECREE

AND ITS FIRST IMPLEMENTATION ORDER; INTEROFFICE MEMORANDUM REQUESTING

TRANSMITTAL OF THE LETTER TO DEFENDANT SCHLEGELBERGER

Chief of the Supreme Command of the Armed Forces

14 n 16 WR (I3/4)

No. 165/41 g

(When answering, please refer to above file number, date and

subject.)

Berlin W 35

12 December 1941

Tirpitzufer 72–76

Telephone: Local: 218191

Long distance: 218091

12/Hz

[Stamp] Secret

To the Reich Minister of Justice

Attention: Under Secretary Dr. Freisler

Subject: Prosecution of criminal offenses

against the Reich or the occupying

power in the occupied zones

3 enclosures

With regard to the oral conversation between Under Secretary Dr.

Freisler and the chief of my legal section,[446] I enclose herewith

a decree of the Fuehrer and Supreme Commander of the Wehrmacht of 7

December 1941[447] and an order for its execution of the same day.[448]

I agree with the opinion of the State Secretary that the execution of

the Fuehrer decree necessitates a close cooperation between the Reich

Ministry of Justice and the Supreme Command of the Wehrmacht.

I instructed my officials to assist your agencies in every respect. I

ask you to settle the question regarding the manner of imprisonment in

your provision for the execution of decree.

[Signed] KEITEL

Action taken by II a 118 and 119/42 g

II a 116/42 g

3 enclosures

12

received 26/1

SCH [Schlegelberger]

Ministerialrat Dr. Gramm, State Secretary Dr. Freisler asks to transmit

the enclosed letter to State Secretary Dr. Schlegelberger for his

information

[Signed] VON HACKWITZ

19 January 1942

PARTIAL TRANSLATION OF DOCUMENT 1733-PS

PROSECUTION EXHIBIT 303

SECRET NIGHT AND FOG DECREE OF HITLER, SIGNED BY KEITEL, 7 DECEMBER

1941, CONCERNING MEASURES TO BE TAKEN AGAINST PERSONS OFFERING

RESISTANCE TO GERMAN OCCUPATION

Secret

The Fuehrer and Supreme Commander of the Armed Forces

Directives for the Prosecution of Criminal Acts against the Reich or

the Occupying Power in the Occupied Territories of

7 December 1941

Since the beginning of the Russian campaign, Communist elements and

other anti-German circles have increased their assaults against the

Reich and the occupation force in the occupied territories. The extent

and the danger of these activities necessitate the most severe measures

against the malefactors in order to intimidate them. To begin with,

the following directives should be observed:

I

In case of criminal acts committed by non-German civilians and which

are directed against the Reich or the occupation force, endangering

their safety or striking force, the death penalty is indicated in

principle.

II

Criminal acts contained in paragraph I, will on principle, be tried

in the occupied territories only when it appears probable that

death sentences are going to be passed on the offenders, or, at

least, the main offenders, and if the trial and the execution of the

death sentence can be carried out without delay. In other cases the

offenders, or, at least, the main offenders, are to be taken to Germany.

III

Offenders who are being taken to Germany are subject to court martial

procedure there only if particular military interests should require

this. German and foreign agencies will be told upon inquiries on such

offenders that they were arrested and that the state of the proceeding

does not allow further information.

IV

The commanders in the occupied territories and the judicial

authorities, within their jurisdiction, will be personally held

responsible for the execution of this decree.

V

The Chief of the High Command of the Armed Forces will decide in

which of the occupied territories this decree shall be applied. He

is authorized to furnish explanations, to issue supplements, and

implementation directives. The Reich Minister of Justice will issue

implementation directives within his jurisdiction.

BY ORDER:

The Chief of the High Command of the Armed Forces

[Signed] KEITEL

Distribution:

Foreign Office

Reich Minister and Chief of the Reich Chancellery

Reich Leader SS and Chief of the German Police in the Reich

Ministry of the Interior

Army High Command (Chief, Army Armament and Commander of the

Replacement Army, Army Legal Department) with 7 numbered copies

Navy High Command (Navy Legal Department) with 1 numbered copy

Reich Air Minister and Commander in Chief of the Air Force with

1 numbered copy

President of the Reich Military Court

Commander Armed Forces Southeast with 4 numbered copies

Norway

Netherlands

Ostland

Ukraine

Plenipotentiary for the Armed Forces with the Reich Protector

for Bohemia and Moravia

Armistice Commission Wiesbaden

OKW:

Chief of the Armed Forces Operational Staff with 8 numbered

copies

Division L

Armed Forces Propaganda

Division Foreign Affairs, Foreign Counter Intelligence

Division Foreign Affairs

Counterintelligence III

General Armed Forces Office

TRANSLATION OF DOCUMENT 669-PS

PROSECUTION EXHIBIT 305

KEITEL LETTER OF 12 DECEMBER 1941, TRANSMITTING THE FIRST

IMPLEMENTATION DECREE TO THE NIGHT AND FOG DECREE

[Stamp] SECRET

The Commander in Chief of the Armed Forces

14 n 16 WR (I 3/4) [Stamp] L. 15 Dec. 1941

No. 165/41 g Az. 14g po 10

No. 37787 41

12 December 1941

Subject: Prosecution of criminal acts against the Reich or

against the occupying power in occupied territories

1 enclosure

It is the long considered will of the Fuehrer that in case of attacks

against the Reich or the occupation force in the occupied territories,

other measures than those in present use should be taken. The Fuehrer

is of the following opinion: in connection with such activities

imprisonment, even life imprisonment, is considered as a sign of

weakness. An effective and lasting deterrent can only be achieved by

death sentences or by measures which will keep the relatives of the

perpetrator and the population in suspense concerning the fate of the

perpetrator. This purpose is served by deportation to Germany.

The attached directives for the prosecution of crimes correspond to

this conception of the Fuehrer. They were examined and approved by him.

[Signed] KEITEL

Distribution[449]

[Handwritten notes] Clarify as soon as possible.

1. Are the provisions concerning shooting of hostages, etc., annulled

by that order?

2. Is it clear to the Army High Command, especially to the

Quartermaster General, who has been omitted in the distribution?

[Initial] W [Warlimont] 17 December

Secret

First Decree for the carrying out of the Fuehrer’s and Supreme

Commander’s directives concerning the Prosecution of

Criminal Acts against the Reich or the Occupying

Power in the Occupied Territories

By virtue of chapter V of the directives of 7 December 1941 of the

Fuehrer and Supreme Commander concerning the prosecution of criminal

acts against the Reich or the occupying power in the occupied

territories, I order the following:

I

The conditions of chapter I of the directives will as a rule be

applicable in cases of--

1. Assault with intent to kill.

2. Espionage.

3. Sabotage.

4. Communist activity.

5. Crimes liable to create disorder.

6. Favoring of the enemy by the following means:

a. Smuggling people into a country.

b. The attempt to enlist in an enemy army.

c. Support of members of an enemy army (parachutist, etc.).

7. Illegal possession of arms.

II

(1) The criminal acts described in section I of the directives are

to be tried in the occupied territories only under the following

conditions:

1. It must be probable that a death sentence will be pronounced against

the perpetrators or at least against the principal perpetrator.

2. It must be possible to carry out the trial and the execution of the

death sentence at once (on principle a week after the capture of the

perpetrator).

3. Special political misgivings against the immediate execution of the

death sentence should not exist.

4. Apart from the death sentence for murder or partisan activities no

death sentence against a woman is to be expected.

(2) If a sentence which has been pronounced according to section I is

annulled, the trial can continue in the occupied territory, if the

conditions of section I, No. 1, 3, and 4 still exist.

III

(1) In case of criminal acts mentioned in section I of the directives,

the highest judicial authority in agreement with the counter

intelligence officer examines whether the conditions for a trial in the

occupied territories exist. If he agrees that they are, he orders the

session of the court martial. If he denies it, he submits the documents

to his superior commanding officer (sec. 89, par. 1 of the decree on

criminal procedure during wartime). The latter may reserve the decision

to himself.

(2) The superior commanding officer renders the final decision as to

whether the conditions for a trial in the occupied territories exist.

If he agrees that they do, he orders the highest judicial authority

within his command to deal with it. If he denies it, he gives the order

to the secret field police to take the perpetrator to Germany.

IV

(1) Perpetrators taken to Germany _will be subjected there to court

martial proceedings_ only, if the High Command of the Armed Forces

or the superior commanding officer declare in their decision according

to chapter III that special military reasons require court martial

proceedings. If such a declaration is not made, the order that the

perpetrators be taken to Germany means a transfer according to section

3, paragraph 2, sentence 2 of the decree on criminal procedure during

wartime.

(2) If the superior commanding officer uses his authority according to

paragraph 1, he submits the documents to the High Command of the Armed

Forces through official channels. The perpetrators are to be designated

“prisoners of the armed forces” when being transferred to the secret

field police.

(3) The High Command of the Armed Forces determines the tribunal for

those perpetrators who are subjected to court martial proceedings

according to paragraph 1. _It may waive the competence of the armed

forces tribunals._ Moreover, it can suspend the proceedings for any

time it chooses.

V

The trial in Germany will be held under strictest exclusion of the

public because of the danger for national security. Foreign witnesses

may be questioned during the trial only with the permission of the High

Command of the Armed Forces.

VI

The regulations on the procedure before tribunals of the Armed

Forces included in the decree of the High Command of 13 September

1941 concerning the situation in Norway (Armed Forces Operational

Staff/Department L (IV/Qu) No. 002034/41 top secret) and of 16

September 1941 concerning the Communist revolutionary movements in the

occupied territories (Armed Forces Operational Staff/Abt. L (IV/Qu)

No. 002060/41 top secret) are superseded by the directives and this

executive order.

VII

(1) These directives will become effective 3 weeks after they are

signed. _They are to be applied in all occupied territories with the

exception of Denmark_ until further notice.

(2) The orders issued for the newly Occupied Eastern Territories are

not affected by these directives.

(3) Chapter I of the directives is applicable for pending trials. The

highest judicial authority and the superior commanding officer can

accordingly apply chapter III of this executive order in case of such

trials. If the superior commanding officer orders that a perpetrator

be taken to Germany, chapter IV will be applicable. In case of

perpetrators who were taken to Germany before these directives became

effective, the High Command of the Armed Forces can proceed according

to chapter IV, paragraph 3.

The Commander in Chief of the Armed Forces

[Signed] KEITEL

Distribution:

Foreign Office

Reich Minister and Chief of the Reich Chancellery

Reich Leader SS and Chief of the German Police in the Reich

Ministry of the Interior

High Command Army (Chief Army Armament and Commander of the

Replacement Army, Army Legal Department) with 7 numbered copies

High Command Navy (Navy Legal Department) with 1 numbered copy

Reich Minister for Air and Commander in Chief of the Air Force

with 1 numbered copy

President of the Reich Military Court

Armed Forces Commander Southeast with 1 numbered copy

Norway

Netherlands

Ostland

Ukraine

Plenipotentiary for the Armed Forces with the Reich Protector in

Bohemia and Moravia

Armistice Commission Wiesbaden

High Command Armed Forces:

Chief Armed Forces Operations Staff with 8 numbered

copies

Department L

Armed Forces Propaganda

Office Foreign Counterintelligence

Department Foreign Countries

Branch III

General Armed Forces Office

PARTIAL TRANSLATION OF DOCUMENT NG-077[450]

PROSECUTION EXHIBIT 306

LETTER FROM UNDER SECRETARY FREISLER TO GENERAL LEHMANN, 16 DECEMBER

1941, TRANSMITTING A DRAFT OF A PROPOSED IMPLEMENTATION ORDER TO THE

NIGHT AND FOG DECREE, TOGETHER WITH AN INTEROFFICE NOTE OF 25 DECEMBER

1941

Priv. II

v. Ha/La

16 December 1941

[Handwritten] Officially dispatched, 16 December

Secret [Handwritten] IIa 117/42 g

Sheet 13

Secret!

To Ministerialdirektor Dr. Lehmann

Chief of the Armed Forces Legal Division with the High

Command of the Armed Forces

Berlin W

Bendlerstr. 14

Dear Ministerialdirektor,

Dear Party Member Lehmann,

Being in the possession of your letter of the 12th of this month, I

send you attached hereto the draft of an executive order. Taking your

consent for granted, the Reich Minister of Justice intends to publish

it.[451] I should be obliged to you, if we could discuss our views

in the beginning of next week. (Prior to that time I shall be on an

official trip.) In the meantime, Ministerialdirektor Schaefer is also

ready to discuss this matter with you. Ministerialdirektor Schaefer

will prepare the necessary administrative regulations on the basis of

the provisions issued or proposed.

Heil Hitler!

[Initial] FR [Freisler]

[Illegible stamp]

[Italicized text crossed out in original document]

_Before dispatch

submitted to State

Secretary Dr. Schlegelberger

with the request to take note._

_Berlin_, 16 December

[Signed] FREISLER

22. 12. to II a 116/42 g

[Enclosure]

[Executory decree to Hitler’s Night and Fog order

of 7 December 1941]

Regarding the execution of the afore-mentioned decree, I decree:

1. I reserve to myself the decision as to which court is materially and

locally competent to deal with a case.

2. The public prosecutor shall prefer charges after earnest reflection

according to his duty.

3. The order, application, and termination of the arrest pending trial

are at the discretion of the public prosecutor.

4. The trial will be conducted behind closed doors.

5. The admittance of evidence of foreign origin depends on the

preceding consent of the public prosecutor.

6. Prior to the verdict the public prosecutor may revoke the indictment

or move for a suspension of the proceedings.

The motion of the public prosecutor to suspend proceedings must be

granted by the court.

The public prosecutor must be given an opportunity to state his

opinion, should the court decide on making an exception to his motion

in re.

[Initial] FR [Freisler] 16 December

[Initial] SCH [Schaefer] 16 December

[Entire document handwritten]

_Secret_

1. Note. I had an oral discussion in this matter on 19 December, and on

24 December I had a discussion by telephone with Ministerialdirektor

Lehmann. He told me, that the High Command of the Armed Forces had,

in principle, agreed to the draft submitted to it with regard to the

executive order but that, nevertheless, it would give a reply in

writing. The question has not been decided whether the High Command of

the Armed Forces within its jurisdiction, will give the right to handle

the case to the higher military court or the military courts. There is

also the necessity of settling some other questions which presumably

will be attempted in a conference of delegates in the beginning of

January. It would be advisable for the Reich Ministry of Justice to

await further information from the High Command of the Armed Forces.

Transfers of the cases to courts should not be expected before the

second half of January.

Experts in charge of this matter with the High Command of the Armed

Forces are--

Senior Military Court Counsellor Huelle,

Military Court Counsellor Schoelz,

Ministerialrat Sack.

Furthermore with the counterintelligence office of Colonel Bentivegni,

Chief of Counterintelligence III.

Ministerialrat Herzlieb,

Senior Military Court Counsellor von Gramatzki.

2. To Ministerialrat Grau, with the request to take note.

[Initial] GR [Grau]

25 December

I beg you to take care of the file and handle it in the future.

[Signed] SCHAEFER

24 December

TRANSLATION OF DOCUMENT NG-232

PROSECUTION EXHIBIT 308

CIRCULAR DECREE OF THE REICH MINISTRY OF JUSTICE, SIGNED BY UNDER

SECRETARY FREISLER, 6 FEBRUARY 1942, ASSIGNING PARTICULAR SPECIAL

COURTS TO HANDLE NIGHT AND FOG CASES

The Reich Minister of Justice

II a 119/42 secret

Berlin W 8, 6 February 1942

Wilhelmstrasse 65

Phone: 110044

Long distance: 11 65 16

[Stamp] Secret

Circular decree on the implementation of the executive decree of

6 February 1942, concerning the directives issued by the Fuehrer

and Supreme Commander of the Armed Forces for the prosecution of

criminal acts against the Reich or the occupying power in the occupied

territories.

For the further execution of the directives mentioned before, I decree:

1

Competent for the handling of the cases transferred to ordinary courts,

including their eventual retrial, are, as far as they originate from

the occupied French territories, the Special Court and the chief public

prosecutor in Cologne; as far as they originate from the occupied

Belgian and Dutch territories, the Special Court and the chief public

prosecutor in Dortmund; as far as they originate from the occupied

Norwegian territories, the Special Court and the chief prosecutor in

Kiel; for the rest, the Special Court and the attorney general at

the Berlin district court. In special cases I reserve to myself the

decision of competence for each individual case.

2

The Chief Public Prosecutor will inform me of the indictment, the

intended plea and the sentence as well as of his intention to refrain

from any accusation in a specific case.

3

The choice of a defense counsel will require the agreement of the

presiding judge who makes his decision only with the consent of the

prosecutor. The agreement may be withdrawn.

4

Warrants of arrest will be withdrawn only with my consent. If such is

intended, the chief public prosecutor will report to me beforehand. He

will furthermore ask for my decision before using foreign evidence or

before agreeing to its being used by the Tribunal.

5

Inquiries concerning the accused person or the pending trial from other

sources than those armed forces and police agencies dealing with the

case will be answered by merely stating that * * * is arrested, and the

state of the trial does not allow further information.

Acting:

[Typed] Signed: DR. FREISLER

Certified: [Signed] KERSTEN

Chief Secretary of the Ministerial Chancellery

Circular stamp of the Reich Ministry of Justice

TRANSLATION OF DOCUMENT 2521-PS

PROSECUTION EXHIBIT 310

LETTER FROM THE SS ECONOMIC AND ADMINISTRATIVE MAIN OFFICE TO

CONCENTRATION CAMP COMMANDERS, 18 AUGUST 1942, TRANSMITTING

INSTRUCTIONS FOR TREATMENT OF NIGHT AND FOG PRISONERS

Copy Oranienburg, 18 August 1942

SS Economic and Administrative Main Office[452]

Chief of Division D--Concentration Camps

D I/Az.: 14 c 2/Ot./U.

Secret Diary No. 551/42

Subject: Prisoners who come under the Keitel decree

Reference: Reich Security Main Office--IV C 2 Gen. No. 103/42 of

14 August 42 and attached extract of 4 August 1942

Enclosure: 1

To the Camp Commandants of the Concentration Camps Dachau,

Sachsenhausen, Buchenwald, Mauthausen, Flossenbuerg, Neuengamme,

Auschwitz, Gross-Rosen, Natzweiler, Niederhagen, Stutthof,

Arbeitsdorf, Ravensbrueck, and Prisoner of War Camp at Lublin

I am sending you, for information and execution, enclosed extract

from the Nacht und Nebel [Night and Fog] Decree for official use in

concentration camps, in connection with prisoners who come under the

“Keitel Decree.”

In the event of the transfer of such prisoners, it is to be pointed

out that the prisoners come under the “Keitel Decree” or the Nacht und

Nebel Decree.

[Typed] GLUECKS

SS Brigadier General and Brigadier General of the Waffen SS

Certified true copy

Natzweiler, 24 August 1942

[Signed] MELZER

SS-Corporal

Seal

To department III with the request to inform the postal department.

Copy

IV D 4--103/42 g Berlin, 4 August 1942

Extract from the Nacht und Nebel Decree for official use in

concentration camps

By decree of the Commander in Chief of the Armed Forces dated 12

December 1941 regarding the prosecution of punishable offenses against

the Reich or the occupation forces in the occupied areas (called in

short Nacht und Nebel Decree), it has been directed by virtue of a

Fuehrer order, that persons who, in the occupied territories, take

action against the Reich or the occupation forces, shall be removed

to the Reich for deterrent purposes. Here they are to be transferred

to a Special Court. Should this not be possible for any reason, these

persons will be placed in a concentration camp under sentence of

protective custody. Protective custody as a rule lasts until the end of

the war.

As it is the purpose of this decree to leave the relatives, friends,

and acquaintances in uncertainty regarding the fate of the prisoners;

they are not allowed to have any means of communication with the

outside world. They may therefore neither write, nor receive letters,

parcels, or visits. Nor will any kind of information regarding the

prisoners be given to any agency outside.

In cases of death, the relatives are not to be informed until further

notice. There has not yet been a final ruling on this question.

These regulations apply to all prisoners regarding whom it is stated in

the detention particulars or in the detention certificates of the Reich

Security Main Office that they come under the Nacht und Nebel Decree.

Furthermore, all prisoners come under it who are described as “Porto”

or “Continent” prisoners.

If it should occur that prisoners who come under the Nacht und Nebel

Decree, have, through an error, had the opportunity of informing their

relatives, further exchange of correspondence with their relatives

should, for tactical reason, be granted them within the framework of

the general regulations regarding correspondence for persons under

protective custody.

[Typed] Signed: DR. HOFFMANN

Certified true copy.

Natzweiler, 24 August 1942

[Signed] MELZER

[Seal]

SS Corporal

TRANSLATION OF DOCUMENT NG-228

PROSECUTION EXHIBIT 312

MEMORANDUMS OF DEFENDANT VON AMMON TO DEFENDANT ROTHENBERGER, 9 AND 26

SEPTEMBER 1942, CONCERNING PENDING NIGHT AND FOG CASES AND THE HANDLING

OF THESE PRISONERS

1. Note. Criminal proceedings according to the directives of the

Fuehrer for the prosecution of criminal acts against the Reich or the

occupying power in the occupied territories of 7 December 1941[453]

(so-called Nacht und Nebel cases) pending on 1 September 1943 are--

_a._ With the Chief Public Prosecutor in _Kiel_ (from

the occupied Norwegian territories) _9_ cases with a total of

_262_ accused.

_b._ With the Chief Public Prosecutor in _Essen_ (from the

occupied Belgian and northern French territories) _180_ cases with

a total of _863_ accused.

_c._ With the Chief Public Prosecutor in _Cologne_ (from the

occupied French territories--with the exception of northern France)

_177_ cases with a total of _331_ accused.

Since 31 August 1942, trials have been held before the Special Court in

Essen. On 31 August 1942 the first death sentence (against Kratz) was

passed.

2. To be submitted to:

Ministerial Director Dr. Crohne,

Ministerial Dirigent Dr. Mettgenberg,

Oberregierungsrat Mielke

separately to each one--with the request to take note

[Initial] R. [ROTHENBERGER]

Berlin, 9 September 1942

[Signed] VON AMMON

[Handwritten notes]

To State Secretary Dr. Rothenberger

To the Reich Minister of Justice

With the request to take note.

Has been submitted.

[Signed] DR. CROHNE 10 September

[Signed] EBERSBERG

[Initial] E

Notes for State Secretary Dr. Rothenberger

On 24 September a report was submitted to the Reich minister on the

legal basis (Fuehrer decree for the prosecution of criminal acts

against the Reich or the occupying power in the occupied territories

of 7 December 1941 and orders for execution) and on the present stage

of the so-called Nacht und Nebel proceedings.

On 1 September 1942 pending were--

1. With the Chief Public Prosecutor in Kiel (from the occupied

Norwegian territories) 9 cases with a total of 262 accused.

2. With the Chief Public Prosecutor in Essen (from the occupied

territories of Belgium and northern France) 180 cases with a total of

863 accused.

3. With the Chief Public Prosecutor in Cologne (from the occupied

French territories--with the exception of northern France) 177 cases

with a total of 331 accused.

The Reich Minister has ordered the following changes to be made in the

present procedure:

1. The Special Courts in Kiel, Essen, Cologne, and Berlin with

exclusive competence hitherto, are to some extent to be replaced by the

People’s Court.

2. The present procedure, according to which the accused are kept in

custody indefinitely by the judiciary authorities when an indictment

was either impossible or not answering the purpose, is to be abolished.

Furthermore, the Reich Minister wishes the question of the competence

for pardons settled in such a way that in cases which have been handed

over to the common court authorities, these (not the authorities of the

armed forces) shall make the decision for pardon.

To give consideration to these questions, a departmental meeting

with the High Command of the Armed Forces Legal Division and

Counterintelligence is to be held on 2 October 1942.

Berlin, 26 September 1942

[Typed] signed DR. VON AMMON

[Handwritten] for further action

[Initial] A [Ammon]

2 October

PARTIAL TRANSLATION OF DOCUMENT NG-255

PROSECUTION EXHIBIT 314

LETTER FROM MINISTRY OF JUSTICE, INITIALED BY DEFENDANTS METTGENBERG

AND VON AMMON, TO VARIOUS JUDGES AND PUBLIC PROSECUTORS, 21 DECEMBER

1942, CONCERNING OBJECTIONS TO ELECTIVE DEFENSE COUNSEL IN NIGHT AND

FOG TRIALS

The Reich Minister of Justice Berlin, 21 December 1942

IVa 2069.42 g

[stamp]

mailed 9 January 1943

[Handwritten] Ru.

[Stamp] Secret

To--

_a._ The President of the People’s Court

_b._ The Chief Public Prosecutor at the People’s Court

_c._ The President of the Military Court

_d._ The Presidents of the Courts of Appeal in Hamm, in

Westphalia, Kiel, and Cologne

_e._ The Attorney General at the Military Court

_f._ The Attorneys General in Hamm, in Westphalia, Kiel,

and Cologne

[Stamp]

To the Chancellery

5 January 1943

made out:

Reply: 6 January 1943

Le/Ru.

Subject: Prosecution of criminal acts against the Reich or the

occupying power in the occupied territories

[Stamp] [Stamp]

To the Chancellery Armed Forces Legal Department

22 December 1942 24 December 1942

made out: Reply: 1211/42 Secret

_Before mailing_

To the High Command of the Armed Forces

Armed Forces Legal Department

for information.

Send copy there.

Several attorneys general have raised the question of whether elective

defense counsel are to be admitted in the procedures transferred to

the general courts according to the directives of the Fuehrer, dated 7

December 1941, dealing with the prosecution of criminal acts against

the Reich or the occupying power in the occupied territories. I have

contacted the High Command of the Armed Forces in this respect. We

are both of the opinion that in view of the regulations in force for

keeping secret the procedures in question, there are basic objections

to the admission of elective defense counsel. The interests of the

defendants can be taken care of by giving them defense counsel

according to paragraph 32 of the competence regulation.

BY ORDER

[Department] III [Department] IV

21 December [Initial] M [Mettgenberg] 21/12

[Initials illegible] [Initial] A [von Ammon] 17/12

PARTIAL TRANSLATION OF DOCUMENT NG-253

PROSECUTION EXHIBIT 317

EXTRACTS FROM OFFICIAL CORRESPONDENCE ARISING OUT OF THE QUESTION

OF PROVIDING DEFENSE COUNSEL IN NIGHT AND FOG TRIALS, 4 JANUARY--19

FEBRUARY 1943

[Letter from the President of the Essen Special Court to the President

of the Essen District Court, 4 January 1943]

The President of the Special Court

Essen, 4 January 1943

_Secret_

To the President of the District Court in Essen

Concerning--Prosecution of criminal acts against the Reich or

the occupying power in the occupied territories.

The German Penal Code applies to the prosecution of criminal acts

against the Reich or the occupying power in occupied territories. This

does not exclude the application of article IV, paragraph 32 of the

competence decree of 21 February 1940 concerning necessary defense,

included in the Reich Minister of Justice’s executive decree of 6

February 1942.[454] Foreign defendants must therefore have counsel if

there is a possibility of the death sentence (or life imprisonment)

being imposed. That is frequently the case in these trials. An

increasing number of more copious cases with several defendants are

now coming up. Very frequently the only evidence against defendants

pleading not guilty consists of statements of codefendants, so that

in view of the possibility of conflicting interests, it is only

rarely possible to appoint _one counsel_ for _a number_ of

defendants. Recently, seven counsel had to be appointed for one trial

lasting several days. At that time it was most difficult to find

enough counsel in a position to take over the defense. The course

of proceedings was repeatedly interrupted owing to the inability of

counsel to appear. In a few days another case with about 30 defendants

will come up, for which a number of counsel will presumably have to be

appointed, too. A number of similar trials may be expected shortly.

Such a strain for trials lasting all day for several days upon the few

lawyers, who are overworked due to their representing their drafted

colleagues, is in my opinion untenable under present circumstances.

The resultant drain upon the State treasury is considerable. When the

second court for these special cases which will soon be needed is

set up, it will be next to impossible to get the requisite number of

counsel. The interests of foreign defendants can hardly be considered

sufficiently important to justify continuous demands of this kind on

staff and public funds.

I therefore suggest that the Reich Minister of Justice should lay down

the following by virtue of the powers granted in No. V of the Fuehrer’s

directives of 7 December 1941:

Article IV, paragraph 32 of the competence decree of 21 February 1940

is not applicable. The president of the court will appoint a counsel

for the defendant if the latter is unable to defend himself or if for

any other special reasons it seems desirable that the defendant be

represented.

[Signed] GOEBEL[455]

District Court Director [Landgerichtsdirektor]

[Memorandum, 18 January 1943, from Ministerial Director Grau to

defendant von Ammon asking for comments on the proposal of the

President of the Special Court in Essen.]

_Secret_

In reference: III a 184/43g

To Oberlandesgerichtsrat Dr. von Ammon

Account of proceedings enclosed with request for comments. In case a

regulation of the nature suggested by the Essen Special Court should

be considered necessary, a legal decision along the lines of the draft

could be made. The formulation of this communication intends to leave

untouched in principle the necessity for defense in the cases concerned

and only to permit individual exceptions of the compulsory regulation

contained in paragraph 32 of the competence decree (ZustVO).

I consider it doubtful whether the principle of the necessity of having

a defense should be abandoned also in cases where the death sentence

may be expected. Here the existing regulations should be waived only in

cases of the utmost urgency.

Berlin, 18 January 1943

[Signed] GRAU

[Answer, 1 February 1943, from the Reich Ministry of Justice, initialed

by defendants Mettgenberg and von Ammon.]

To Ministerialrat Grau

Department IV suggests that section 2 of decree No. 7 of 7 December

1941 be given roughly the following form:

“In trials in which according to the regulations a defense

counsel has to be appointed for the defendant, the regulation

may be ignored if the president of the court is convinced that

the character of the defendant or the nature of the charge make

the assistance of a defense counsel superfluous.”

However, it might be expedient to obtain the comments of the President

of the People’s Court, and of the chief Reich prosecutor at the

People’s Court, the presidents of the courts of appeal at Kiel and

Cologne and the attorneys general in Hamm, Cologne, and Kiel.

Berlin, 1 February 1943

[Initials] V [Vollmer]

M [Mettgenberg] 1 February

A [von Ammon] 30 January

[Letter, 9 February 1943, from the Reich Ministry of Justice, initialed

by defendants Mettgenberg and von Ammon.]

The Reich Minister of Justice Berlin, 9 February, 1943

III a 184/43 g

_Secret_

1. To

_a._ The President of the People’s Court[456]

_b._ The Chief Public Prosecutor at the People’s Court[456]

_c._ The Oberlandesgerichtspraesidenten in Kiel and Cologne

[Initial] TH [Thierack]

_d._ Chief Public Prosecutors in Hamm, Kiel, and Cologne

[Stamp] To files 9 February 1943

Subject: Crimes against the Reich or the occupying forces in

occupied territory

The president of the Essen Special Court reports that in trials for the

above-mentioned offenses, where a defense is necessary, because of the

sentence which may be expected, it is often difficult to obtain counsel

for the defense when [defendants who have confessed in cases where

there is a collision of interest between the defendants][457] a defense

counsel always has to be obtained. The requisite number of lawyers

is not always obtainable, the course of the main proceedings is also

frequently hampered by the inability of individual lawyers to appear.

I therefore propose to insert in No. 7 of the decree for the carrying

out of the directives laid down by the Fuehrer and Supreme Commander of

the Armed Forces of 7 December 1941 the following regulation, which is

to be paragraph 2:

“In trials before the Sondergericht [Special Court] in which

according to the regulations defense counsel has to be provided

for the defendant, the regulation may be ignored when the

president of the court can conscientiously state that the

character of the accused and the nature of the charge make the

presence of a defense counsel superfluous.”

Please comment as soon as possible.

BY ORDER:

[Department] IV [Department] III

[Initial Illegible]

[Initials] V [Vollmer] 4 February

M [Mettgenberg] 4 February

A [Ammon] 3 February

C [Crohne] 3 February

2. 3 weeks later.

3 March

TRANSLATION OF DOCUMENT NG-269

PROSECUTION EXHIBIT 319

SECRET INSTRUCTIONS OF REICH MINISTRY OF JUSTICE TO PROSECUTORS AND

JUDGES, INITIALED BY DEFENDANTS ALTSTOETTER, METTGENBERG, AND VON

AMMON, 6 MARCH 1943, CONCERNING MEASURES NECESSARY TO MAINTAIN SECRECY

OF NIGHT AND FOG PROCEDURES

Draft

Berlin, 6 March 1943

The Reich Minister of Justice

IV a 398/43 secret

[Stamp] Secret

Secret

1. To:

_a._ The Chief Reich Prosecutor at the People’s Court

_b._ The Attorneys General in Celle, Duesseldorf,

Frankfurt/Main, Hamburg, Hamm, Kiel, and Cologne

_c._ The Attorney General at the Berlin Court of Appeal

Subject: Criminal procedures on account of criminal acts

committed against the Reich or the occupying power in the

occupied territories

Enclosures: Extra copies for the Chief Public Prosecutors in

Essen, Kiel, and Cologne and for the Attorney General at the

Berlin District Court

For the attention of:

_a._ The President of the People’s Court

_b._ The Presidents of the District Courts of Appeal in

Hamm, Kiel, and Cologne

_c._ The President of the Berlin Court of Appeal

Enclosures: Extra copies for the Presidents of the District

Courts in Hamm, Kiel, Cologne, and Berlin

[Stamp] Chancellery of Justice

6 March 1943

With regard to criminal procedures on account of criminal acts against

the Reich or against the occupying forces in the occupied territories

(so-called Night and Fog cases) I request the observance of the

following directives in order not to endanger the necessary top secrecy

of the procedure, _particularly, regarding the execution of death

sentences and other cases of death among prisoners_. [Italicized

text crossed out in the original document.]

1. The cards used for investigations for the Reich crime statistics

need not be filled in. Likewise, notification of the penal records

office will be discontinued until further notice. However, sentences

will have to be registered in lists or on a card index in order to make

possible an entry into the penal records in due course.

2. In cases of death, especially in cases of execution of NN prisoners,

as well as in cases of female NN prisoners giving birth to a child,

the register must be notified as prescribed by law. However, the

following remark has to be added: “By order of the Reich Minister of

the Interior, the entry into the death (birth) registry must bear an

endorsement, saying that examination of the papers, furnishing of

information and of certified copies of death (birth) certificates is

only admissible with the consent of the Reich Minister of Justice.”

3. In case an NN prisoner sentenced to death desires to draw up a

public will, proceedings must follow No. 30, paragraph 2 of my circular

ordinance of 19 February 1939, article 417-III a, 318.39. The persons

who assist the drawing up of the will are, if necessary, to be sworn to

secrecy. The will has to be taken into official custody according to

article 2 of the Probate Law. The deposition receipt has to be kept by

the prosecution until further notice.

4. Farewell letters by NN prisoners as well as other letters must not

be mailed. They have to be forwarded to the prosecution who will keep

them until further notice.

5. If an NN prisoner who has been sentenced to death and informed of

the forthcoming execution of the death sentence desires spiritual

assistance by the prison padre, this will be granted. If necessary, the

padre must be sworn to secrecy.

6. The relatives will not be informed of the death and especially of

the execution of an NN prisoner. The press will not be informed of

the execution of a death sentence, nor must the execution of a death

sentence be publicly announced by posters.

7. The bodies of executed NN prisoners or prisoners who died from other

causes have to be turned over to the State Police for burial. Reference

must be made to the existing regulations on secrecy. It must be pointed

out especially that the graves of NN prisoners must not be marked with

the names of the deceased.

The bodies must not be used for teaching or research purposes.

8. Legacies of NN prisoners who have been executed or died from other

causes must be kept at the prison where the sentence was served.

BY ORDER:

[Initials] SCH [Schaefer] 5 March

MX [Marx] 3 March

A [Altstoetter] 3 March

M [Mettgenberg] 25 February

v. A. [von Ammon] 27 February

[Initials] W [Westphal] 27 February

V [Vogel] 26 February

R [Rexroth] 27 February

H [Hecker] 26 February

EI [Eichler] 1 March

2. Copy of (1) to District Court Judge Dr. von Ammon and to

Chief Public Prosecutor Dr. Metten, also to Dr. Eichler.

3. To be submitted again after being mailed.

[Stamp] Mailed 8 March 1943

[Handwritten] resubmitted [Initials illegible] March 9

[Handwritten notes illegible]

Distribution

The circular ordinance of 6 March 1943-IV a 398/43--has been mailed

today to the following addresses:

786 b 1. Chief Reich Prosecutor at the People’s Court, Berlin.

7 2. Attorney General, Celle.

8 3. Attorney General, Duesseldorf.

9 4. Attorney General, Frankfurt (Main).

90 5. Attorney General, Hamburg.

1 6. Attorney General, Hamm.

2 7. Attorney General, Kiel.

3 8. Attorney General, Cologne.

4 9. Attorney General at the Court of Appeal, Berlin.

5 10. President of the People’s Court, Berlin.

6 11. President of the Supreme Court of Appeal, Hamm.

7 12. President of the Supreme Court of Appeal, Kiel.

8 13. President of the Supreme Court of Appeal, Cologne.

799 b 14. President of the District Court, Berlin.

[Handwritten] 14 Weber

[Stamp] Berlin, W 8, 8 March 1943, 6–7 afternoon

TRANSLATION OF DOCUMENT NG-281

PROSECUTION EXHIBIT 323

FILE NOTE OF DEFENDANT VON AMMON, 7 OCTOBER 1943, CONCERNING DEFENDANT

LAUTZ’ QUESTION AS TO GIVING DEFENDANTS TRANSLATIONS OF THE INDICTMENTS

AGAINST THEM IN NIGHT AND FOG CASES

1. _Note_--Chief Reich Prosecutor Lautz asked me whether there

were any objections to translations of indictments in NN proceedings

being handed over to the defendants. It has turned out to be

inconvenient that the defendants learned the details of the charges

raised against them only during the trial. Also the interpretation by

the defense counsel is not always sufficient, since their French mostly

is not good enough and since the defendants were brought to the place

of the trial only shortly before it was held.

The procedure adopted for Czech defendants, viz, having the indictment

translated to them orally by a Czech-speaking sergeant, is not

possible here since French-speaking sergeants are not available.

After having given a report to Ministerialdirektor of Department IV and

to the Minister, I informed Chief Reich Prosecutor Lautz on 6 October

1943 that there were no objections whatever to the intended procedure.

2. Ad procedures of office a 3.--“Prosecution of criminal acts against

the Reich or the occupying power in the occupied territories.”

Berlin, 7 October 1943

IVa 2369/43 g [Initial] A [von Ammon]

PARTIAL TRANSLATION OF DOCUMENT NG-205

PROSECUTION EXHIBIT 328

SECRET DIRECTIVE OF THE REICH MINISTRY OF JUSTICE, 21 JANUARY 1944,

ORDERING TRANSFER TO GESTAPO OF NIGHT AND FOG PRISONERS WHO WERE

ACQUITTED, AGAINST WHOM PROCEEDINGS WERE QUASHED, OR WHO HAD SERVED

THEIR SENTENCES

The Reich Minister of Justice

IV a 2083.43 g Berlin, 21 January 1944

Secret

[Handwritten] Immediately!

[Initial] TH [Thierack]

(Stamp)

dispatched: 25 January 1944

1. To the

_a._ President of the People’s Court

_b._ Chief Reich Prosecutor at the People’s Court

_c._ Presidents of the Courts of Appeal in Breslau, Hamm,

and Kiel

_d._ President of the Military Court

_e._ Attorneys General in Breslau, Hamm, and Kiel

_f._ Attorney General at the Military Court

Subject: Prosecution of criminal acts committed against the

Reich or the occupying power in the occupied territories

Enclosures: Extra copies for the Presidents of the District

Courts in Breslau, Essen, Kiel, and Berlin; Chief Public

Prosecutors in Breslau, Essen, and Kiel; and for the

Attorney General at the Berlin District Court

[Stamp] submitted on 25 January 1944

For information:

_a._ The other Attorneys General

_b._ Supreme Command of the Armed Forces

Referring to the letter of 10 November 1943

14 n 16.18 WR (I/3)--129/43 g

_c._ Reich Leader SS and Chief of the German Police at the

Reich Ministry of the Interior

--Chief of the Security Police and of the SD--

Referring to the letter of 17 December 1943

IV D 4-103/42 g

As supplement to my circular decree dated 28 October 1942--IV a 1668/42

g--I order the following concerning the treatment of NN prisoners who

were acquitted by a general court, against whom such proceedings were

quashed, or who served their sentence imposed on them by a general

court:

1. If during the trial of an NN proceeding it appears that the

defendant is innocent or that his guilt has not been sufficiently

established, he will be handed over to the Secret State Police; the

public prosecutor will inform the Secret State Police of his opinion

whether the defendant can be released and return to the occupied

territories, or whether he will continue to remain under detention. The

Secret State Police will decide what further actions are to be taken.

2. Defendants who were acquitted, or against whom proceedings were

quashed during the trial, or who served a sentence during the war,

will be handed over to the Secret State Police for detention for the

duration of the war. The Reich Leader SS and Chief of the German Police

at the Reich Ministry of the Interior has ordered that these defendants

will always be given the mildest grade of protective custody, i.e.,

grade I.

3. Deviations from the regulations as contained in Nos. 1 and 2, will

be made only after my approval has been given.

BY ORDER: As deputy

[Initial] V [Vollmer] Jan. 18

2. Copy of 1 will be sent to the--

_a._ President of the Senate Hecker

_b._ Ministerialrat Dr. von Ammon

_c._ Amtsrat Thienel

_d._ s 1

3. To be resubmitted after dispatch--

[Initial] A [von Ammon] Jan. 18

Report of 13 December 1943

[Handwritten] submitted with IV a 27/44 g

The decree of 21 January 1944--IV a 2803/43--has been mailed to the

following addresses today:

1. President of the People’s Court in Berlin.

2. Chief Reich Prosecutor at the People’s Court in Berlin.

3. President of the Court of Appeal, Breslau.

4. President of the Court of Appeal, Hamm/Westphalia.

5. President of the Court of Appeal, Kiel.

6. President of the Court of Appeal [Kammergericht], Berlin.

7. Chief Public Prosecutor, Breslau.

8. Chief Public Prosecutor, Hamm/Westphalia.

9. Chief Public Prosecutor, Kiel.

10. Chief Public Prosecutor at the Court of Appeal, Berlin.

11. Chief Public Prosecutor, Bamberg.

12. Chief Public Prosecutor, Braunschweig.

13. Chief Public Prosecutor, Celle.

14. Chief Public Prosecutor, Danzig.

15. Chief Public Prosecutor, Darmstadt.

16. Chief Public Prosecutor, Dresden.

17. Chief Public Prosecutor, Duesseldorf.

18. Chief Public Prosecutor, Frankfurt/Main.

19. Chief Public Prosecutor, Graz.

20. Chief Public Prosecutor, Hamburg.

21. Chief Public Prosecutor, Innsbruck.

22. Chief Public Prosecutor, Jena.

23. Chief Public Prosecutor, Karlsruhe.

24. Chief Public Prosecutor, Kassel.

25. Chief Public Prosecutor, Katowice.

26. Chief Public Prosecutor, Cologne/Rhine.

27. Chief Public Prosecutor, Koenigsberg.

28. Chief Public Prosecutor, Leitmeritz.

29. Chief Public Prosecutor, Linz/Donau.

30. Chief Public Prosecutor, Munich.

31. Chief Public Prosecutor, Naumburg/Saale.

32. Chief Public Prosecutor, Nuremberg.

33. Chief Public Prosecutor, Oldenburg.

34. Chief Public Prosecutor, Poznan.

35. Chief Public Prosecutor, Rostock, at present Schwerin/Meckl.

36. Chief Public Prosecutor, Stettin.

37. Chief Public Prosecutor, Stuttgart.

38. Chief Public Prosecutor, Vienna.

39. Chief Public Prosecutor, Zweibruecken.

40. Plenipotentiary of the Reich Minister of Justice for the Emsland convict camps in Papenburg.

41. German State Minister for Bohemia and Moravia in Prague.

42. Supreme Command of the Wehrmacht, Berlin.

43. Reich Leader SS and Chief of the German Police (Pommerenin) [sic].

44.

[illegible marginal note]

[Stamp] Berlin, 25 January 1944

TRANSLATION OF DOCUMENT NG-230

PROSECUTION EXHIBIT 331

LETTER FROM ARMED FORCES HIGH COMMAND TO THE FOREIGN OFFICE, COPY

TO DEFENDANT VON AMMON, 4 APRIL 1944, CONCERNING TWO NOTES OF M. DE

BRINON, VICHY GOVERNMENT AMBASSADOR, ON NIGHT AND FOG CASES

Berlin, W 35, 4 April 1944

Copy Tirpitzufer 72–76

High Command of the Armed Forces

14 n 16.18 WR (I/3)

259/44g

Secret

To the Foreign Office

Berlin W 8

Subject: Prosecution of offenses against the Reich or the army

of occupation in the occupied territories

2 enclosures[458]

Enclosed two notes of the French Ambassador and Secretary of State de

Brinon are submitted

The High Command gives the following comment upon them:

In virtue of the directions given by the Fuehrer on 7 December 1941,

capital punishment will be inflicted on principle in the occupied

territories for offenses of non-German civilians which are directed

against the Reich and the army of occupation and are endangering its

safety or readiness for action. Whenever capital punishment would not

be probable or could not be immediately inflicted and executed, the

perpetrator will be brought to Germany and sentenced there. In some

cases perpetrators who have been sentenced in the occupied territories

will be committed for imprisonment to a penitentiary in Germany. This

will be done for political reasons on principle in case of capital

punishments inflicted on women, men of 70 years and older, and fathers

of numerous children under age, excepting punishments inflicted on

account of murder or of such crimes which are in connection with

actions (e.g., partisans).

The transfer to Germany will be made, in accordance with the wishes

of the Fuehrer, in order to make an efficacious and lasting warning

example. The Fuehrer desires the relations and the population to be

kept in suspense as regards the fate of the perpetrator. To German and

foreign bureaus it will be replied to inquiries and petitions--“The

perpetrator has been committed to prison, further information cannot be

given.”

To Ministerialrat von Ammon

It is therefore impossible to comply with the wishes of the Ambassador

de Brinon. The High Command requests you to inform him in due form.

BY ORDER:

[Typed] signed DR. HUELLE

Berlin, 6 April 1944

High Command of the Armed Forces

14 n 16.18 WR (I/3)

259/44g

To the Reich Minister of Justice

Berlin W 8

In reference to letter of 17 March 1944 (V s1 263/44g). The above copy

is forwarded to you for information

BY ORDER:

[Signed] DR. HUELLE

[Handwritten note]

To previous correspondence [illegible].

Prosecution of offenses against the Reich or the army of

occupation in the occupied territories

[Initial] A [von Ammon]

2.5

TRANSLATION OF DOCUMENT NG-262

PROSECUTION EXHIBIT 333

FILE NOTE INITIALED BY DEFENDANT VON AMMON ON 10 MAY 1944, CONCERNING

THE STATUS OF NIGHT AND FOG CASES AS OF 30 APRIL 1944

_Copy_

IV n 313/42 secret

Survey of the Status of NN Proceedings on 30 April 1944

I. The following cases were transferred by the military authorities to:

_a._ Chief Public Prosecutor Kiel--

12 proceedings with 442 defendants.

_b._ Chief Public Prosecutor Oppeln--

729 proceedings with 4048 defendants.

_c._ Chief Public Prosecutor Breslau[459]--

1273 proceedings with 2149 defendants.

_Total_--2014 proceedings with 6639 defendants.

II. Charges preferred by:

_a._ Chief Public Prosecutor Kiel--

9 proceedings with 345 defendants.

_b._ Chief Public Prosecutor Oppeln--

494 proceedings with 1578 defendants.

_c._ Chief Public Prosecutor Breslau--

813 proceedings with 1113 defendants.

_d._ Chief Reich Prosecutor with the People’s Court--

134 proceedings with 588 defendants.

_Total_--1450 proceedings with 3624 defendants.

III. Verdicts have been submitted from:

_a._ Kiel Special Court--

8 cases with 168 defendants.

_b._ Oppeln Special Court--

307 cases with 725 defendants.

_c._ Breslau Special Court--

377 cases with 473 defendants.

_d._ Chief Reich Prosecutor with People’s Court--

115 cases with 427 defendants.

_Total_--807 cases with 1793 defendants.

[Handwritten] To the files concerning the prosecution of

criminal acts against the Reich and the occupying power in

occupied territories.

[Initial] A [von Ammon]

10 May

TRANSLATION OF DOCUMENT NG-1886

PROSECUTION EXHIBIT 546

LETTER FROM DEFENDANT VON AMMON TO THE ATTORNEY

GENERAL IN MUNICH, 22 NOVEMBER 1944, CONCERNING

THE EXECUTION OF NIGHT AND FOG PRISONERS

The Reich Minister of Justice

_IV a 676/44g_

Berlin W 8, 22 November 1944

Wilhelmstrasse 65

Telephone: 11 00 44

Long distance calls: 11 65 16

Diary No. 1716/44g

SECRET

To the Prosecutor General in Munich 35

Subject: Certification of the personal data of executed NN

prisoners

Reference: Diary No. 1584/44g

In view of the new arrangement concerning the treatment of NN prisoners

in the future there no longer will be executions of NN prisoners in any

large numbers.

Therefore, a closer examination of the suggestions, made by

the director of the penitentiary and the detention prison

Munich-Stadelheim, is not necessary. I request you to notify the latter

accordingly.

BY ORDER:

[Typed] DR. VON AMMON[460]

[Official seal of the Ministry of Justice]

[Signed] RUTH

Certified: Court Official

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS

RUDOLF LEHMANN[461]

_DIRECT EXAMINATION_

* * * * * * *

MR. KING: Will you tell us briefly what your rank was and what

your duties were in the High Command of the Armed Forces?

WITNESS LEHMANN: I was the Ministerialdirektor in the High

Command of the Armed Forces, and I was Chief of the Legal Division of

the Armed Forces.

Q. Do you know of the so-called Nacht und Nebel Decree which was issued

in the latter part of 1941 over the signature of Keitel?

A. I am very well informed as to how that came about.

Q. Will you tell us briefly how the Nacht und Nebel program was

supposed to work? In other words, what was the theory upon which this

“Erlass” or decree was issued?

* * * * * * *

A. There arose in France, after the beginning of the Russian campaign,

the resistance movement which became very active. Hitler complained

to the justice administration of the armed forces that on account of

their attitude they were not in a position to suppress that resistance

movement. That is the general background for the Nacht und Nebel Decree.

In detail this is what happened--In the beginning of October 1941 I

received a letter from Field Marshal Keitel--but I want to state here

that Keitel was always at headquarters, whereas I was always in Berlin.

In this letter, which all my assistants have read, Keitel passed on a

directive which he had received from Hitler. The letter was quite long,

several pages in handwriting. In that letter, it was expressed that

Hitler considered the resistance movement in France a tremendous danger

for the German troops. It could be seen that the methods previously

used were not sufficient to suppress that movement. There was no sense

in passing sentences of prison terms--considering conditions as they

were--which were handed down after a long period. That was not the

right deterrent which the armed forces should employ; therefore, new

means would have to be found.

Q. Now, Witness, you have given us some background on the history of

the Nacht und Nebel Decree. Will you tell us with some particularity

how the Nacht und Nebel program was supposed to work? In what way were

the resisters to be handled under the Nacht und Nebel Decree?

A. Yes. That was also stated in that letter by Keitel. The Fuehrer

demanded that Frenchmen who were suspected of such acts, during night

and fog--that is where the expression comes from--should be brought

across the border and that in Germany they should be held completely

incommunicado. That should only not apply in those cases where

immediately a death sentence could be passed in France. This measure

could be used as a deterrent but not the procedures as had been used

heretofore. That was the general plan of Hitler’s which did not include

anything about the question as to who should deal with these people

after they had been brought to Germany.

Q. Now, Witness, did you, in your position with the High Command of the

Armed Forces negotiate with the Ministry of Justice regarding the Nacht

und Nebel Decree?

A. Yes, but not immediately. At first, in a lengthy conference with

Field Marshal Keitel, I tried to thwart the entire plan because

I disagreed--I definitely disagreed with it. Details about that

conference, I am sure, are not interesting for us now. In doing that,

I only had a very limited success; that is, Keitel said that he would

be ready to speak to the Fuehrer once more. But already on the occasion

of this first conference, he stated that the Fuehrer insisted on the

carrying out of that concept and he used a term which I cannot forget.

Hitler had said with reference to that--“Nobody can deny that I am a

revolutionary of considerable stature. Then I should know best how

uprisings can be suppressed.” Keitel then spoke once more to Hitler, as

he stated, but it was of no avail. According to Keitel’s information,

Hitler said that there were things of which he understood more than

jurists do.

In the conference with Keitel, I raised the question immediately as to

who should deal with these matters in Germany now. Thereupon, Keitel

said, that it would be most according to the desire of the Fuehrer if

the Secret State Police would deal with it. But we were against that

from the very beginning, and also Admiral Canaris was against it with

the same severity.

After the argument had gone back and forth, I received the permission

from Keitel to get in touch with the Ministry of Justice.

Q. Do you have any reason which you can state at this time as to why

Hitler preferred the Ministry of Justice rather than the army court

system to deal with Nacht und Nebel cases?

A. That question can only have been discussed between Keitel and

Hitler. It was a way out which I had suggested, because under all

circumstances I wanted to achieve that these matters should continue to

be dealt with by judges, and since the aversion of Hitler against the

armed forces justice was known, it could be assumed that he would still

prefer civilian court to us.

* * * * * * *

Q. When did you first confer with a member of the Ministry of Justice

regarding the assumption by the Ministry of Justice of the Nacht und

Nebel program?

A. I went to see State Secretary Freisler, I believe, in October 1941.

I went to Freisler because he dealt with the criminal cases in the

Ministry. He was in charge of them.

Q. Can you tell us what purpose you had in mind in going to Freisler;

what proposition did you discuss with him?

A. I discussed with him the proposition that the cases which the

military courts in France would not keep should be taken over and tried

by the civilian justice administration.

Q. What was Freisler’s reaction to this suggestion which you made?

A. He was not enthusiastic about it but he agreed that one had to try

and keep these cases for the administration of justice as such.

Q. Can you tell me this? Did Freisler have the authority to agree on

behalf of the Reich Ministry of Justice to assume the trying of Nacht

und Nebel cases?

A. That question I can only answer by saying that Freisler told me that

first he had to think it over; and secondly, he had to discuss it with

State Secretary Schlegelberger who was at that time in charge of the

Ministry.

Q. Is it your impression that Schlegelberger was the individual in the

Ministry of Justice to whom Freisler went to secure permission and

authority on behalf of the Ministry of Justice to try the Nacht und

Nebel cases?

A. That is hard to answer. I can only answer it out of my general

background by saying that this was a question of considerable

importance, and I thought it was quite clear that Freisler told me that

he had to ask the man who was in charge of the Ministry, the acting

Minister.

Q. Mr. Lehmann, on 23 December 1946 you put your name to an affidavit.

Do you recall signing an affidavit about that time?

A. Yes.

Q. I point out to you that this affidavit is now in evidence before

this Court as Document NG-484,[462] Prosecution Exhibit 307. I wish to

read to you a statement from that affidavit, and ask you a question

concerning it after I have read it. The statement is as follows:

“Schlegelberger, who was then acting Minister of Justice, was in my

opinion the only person who could consent to take over these Nacht und

Nebel cases by the Ministry of Justice.” I ask you now, do you still

agree with that statement?

A. Yes, with the reservations that I have made before; as far as I was

informed about the routine in the Ministry.

* * * * * * *

EXTRACTS FROM THE TESTIMONY OF DEFENDANT

SCHLEGELBERGER[463]

_DIRECT EXAMINATION_

* * * * * * *

DR. KUBUSCHOK (defense counsel for defendant Schlegelberger):

To what extent did you participate in the legislative work and the

execution of the Night and Fog Decree, the Nacht und Nebel Erlass?

DEFENDANT SCHLEGELBERGER: First, I must make a temporal

limitation here. The Tribunal knows that on 20 August 1942 I left the

Ministry of Justice. Thus, in regard to my person, only the previous

period can be considered. During that time the procedure, as well as

taking prisoners into custody, remained exclusively in the hands of the

Ministry of Justice.

If I am supposed to make some statements about the decree, I would

like to emphasize that the jurisdiction of the Ministry did not refer

to the western territories, which are under consideration here. This

was entirely under the competence of the military commanders. Hitler

had issued the order to Keitel that in the future merely in very clear

cases, and in such cases where the death sentence could be expected

with certainty, the military courts were to pass sentences. The rest

of the culprits were, for the purpose of a deterrent by the police, to

be transported to Germany to remain under the custody of the police,

and--and this is the expression he used--to disappear during night and

fog.

The chief of the legal division of the Wehrmacht, Dr. Lehmann, realized

what the situation was, and after unsuccessful attempts with Keitel

and with Hitler he tried to have it avoided that the prisoners be left

in the custody of the police by having them tried before the ordinary

courts. He called on Freisler. Freisler did not disagree with Lehmann,

and basically asked for my agreement. I gave my approval.

Here, too, I had to make a serious decision. On the one hand, the

fate of the prisoners was concerned. If they were in police custody,

their fate could not be controlled. On the other hand, there was

the necessity to loosen certain regulations which formed definite

components of our legal system.

The Fuehrer order was based on the fundamental idea that the deterring

force, through the cutting off of the prisoners from every contact

with the outside world, could be achieved in this manner. If we now

wanted--and this is the decisive question--to have the direction of

the prisoners, if we wanted to avoid having the prisoners remain

in police custody and thus not carry out Hitler’s decree but break

its head, no other recourse was left to us but to conduct our court

proceedings under the point of view of secrecy, since otherwise Hitler

would immediately have forbidden and actually prevented the fact that

ordinary courts should handle these matters.

However, in order to avoid any doubt, I want to emphasize expressly

in the following that I have to state we are concerned only with

regulations governing proceedings. The NN prisoners were supposed,

and were, to be tried materially according to the same regulations

which would have applied to them by the courts martial in the occupied

territories. The rules of procedure had been curtailed to the utmost

extent. In German law we also know of the possibility, because of the

endangering of the security of the State, that the public is excluded

when the opinion on which the sentence is based is pronounced. We now

had to take one more step, to issue an order to make available the

possibility that the pronouncing of the sentence itself would not be

made in public. One could not avoid the recognition that otherwise the

secrecy would not be maintained, and I have to repeat, the cases would

have been taken out of our hands immediately.

Everything else was based on this. For example, the limitation in

the selection of defense counsel. Germany had a very eminent legal

profession, and in my opinion it was a matter of course that every

lawyer fulfilled the oath of secrecy given to him by law. However,

one had to realize that as with every other profession, the lawyer’s

profession too, during such times, was permeated with bearers of the

resistance idea, and therefore, here too, a certain caution was needed

and it was necessary to limit the selection of defense counsel.

It is well known that in the executive order which I signed--and it

was the same as the draft submitted in the document book[464]--that I

limited the use of foreign evidence. However, if one thinks the matter

through correctly and thinks of the practical application, one will

realize that this limitation worked only in favor of the defendants

because numerous acquittals occurred according to the principle,

that governs other law as well as ours, _in dubio pro reo_.

In accordance with this basic attitude, it was decisive, under all

circumstances, to avoid the subsequent transfer of the NN prisoners to

the police.

PRESIDING JUDGE BRAND: We will recess until 1:30 this afternoon.

_AFTERNOON SESSION_

(_The hearing reconvened at 1330 hours, 30 June 1947_)

THE MARSHAL: The Tribunal is again in session.

DR. KUBUSCHOK: We have come to the discussion of the NN

regulations. Will you please continue there?

DEFENDANT SCHLEGELBERGER: I have taken the liberty to explain

that the purpose in including ourselves in the procedure was to

counteract Hitler’s plan to have prisoners in the hands of the police.

There arose a problem--If one had to consider that in the regular

course of procedure a penalty was found which expired before the end

of the war. In such cases there would not have been any possibility

to keep these people but they had to be taken over by the police

and that would have thwarted the purpose--of the inclusion of our

administration. That, one had to consider. The matter was simple, if

the prosecutor, after examining the facts, arrived at the result that

the penalty had to be so low that the term would expire before the

expected end of the war because then he did not demand that a date for

the main trial be set; the procedure remained pending and the accused

remained in the custody of the administration of justice. The situation

however could become more difficult if the prosecutor intended to

demand a higher penalty which probably would expire after the end of

the war and if the court would arrive at a more lenient sentence. The

way out could be found only by quashing the proceedings in time and in

order to do that various means could be applied. It could have been put

to the court, that is, by legislation of course, to make a decision

for this continuance, and could also put the prosecutor in a position

where he would demand discontinuance and then let the court decide for

discontinuance. I took the latter approach. Therefore, I provided that

if the court wanted to deviate from the demands of the prosecution it

should inform the prosecutor so that he had the possibility to demand

discontinuance, but with all emphasis I want to stress there can be no

question that the courts were to be bound in any way by the demands for

a penalty on the part of the prosecutor. That would have been quite

irresponsible.

PRESIDING JUDGE BRAND: Dr. Schlegelberger, are you still

speaking with reference to the NN case?

DEFENDANT SCHLEGELBERGER: Yes. So, it is quite out of the

question that the courts were to be bound in any way to the penalty as

requested by the prosecutor as Freisler has stated in a letter which

was written for special service to Thierack and which is quite wrong,

but I repeat again, the intention was only for the court to tell the

prosecutor, “we are arriving at a milder sentence than you requested,”

so as to put the prosecutor in position to demand discontinuance; then

the matter remained in the hands of the administration of justice; that

is to say that the defendant was in the custody of the administration

of justice. May I summarize. The provisions concerning secrecy had

to be made so that the matter would not be taken out of our hands by

Hitler. I was faced with the problem as to whether I should refuse

to take over the NN case altogether, and the Tribunal will recognize

that that would have been very simple for me. I could have held the

position that as far as my department was concerned that I had nothing

to do with the matter and therefore could reject it or refuse to have

anything to do with it. But I could not take the responsibility to

assist, to contribute, that the Hitler order be carried out and that

the NN prisoners remain in the custody of the police. And, I believe

that that decision has also found its justification in the findings of

the International Military Tribunal concerning the treatment of these

prisoners in the hands of the Gestapo.[465]

* * * * * * *

_EXAMINATION BY THE TRIBUNAL_

JUDGE HARDING: Dr. Schlegelberger, you have testified that

you favored the decree as to Poles and Jews and the taking over of NN

prisoners for trial, to avoid having these people turned over to the

police, is that correct?

DEFENDANT SCHLEGELBERGER: (Nodded in the affirmative.)

Q. Why was that?

A. May I ask you a question, namely, does this question refer to the

Poles and Jews, or as I now understand it, to the NN prisoners?

Q. It applies to both.

A. Well, that was for the following reason. From the cases of transfer

about which I reported, I saw that the police was the instrument

of power that Hitler used in order to do away with certain people

without any legal procedure, and I wanted to give those people a legal

procedure with a regular trial.

Q. Now the administration of justice at one time, at least, was

responsible for the prosecution and trial of all crimes committed in

the Reich, isn’t that correct?

A. Yes.

Q. Was there ever an investigation with subsequent trial after 1

September 1939 for the abuse or murder of a person in the hands of the

police or in a concentration camp?

A. I can answer that question by saying that the Ministry of Justice

as far as I am informed--that is, these matters were in the penal

sector--interfered in every case, even in the case of abuses and

concentration camps where they could actually do something about it,

only since 1939--I don’t remember the exact date--these matters were

taken out of our hands through the special jurisdiction of the SS.

Q. I don’t believe you quite answered my question. Did the Ministry of

Justice ever call or ever prosecute a member of the police or somebody

connected with the concentration camp because of abuse of the prisoners

or murder of prisoners in their hands?

A. Yes, the Ministry did so.

Q. In what cases? That was after 1 September 1939.

A. In any case, it did happen before September 1939. I regret, Your

Honor, that I cannot give exhaustive information about this because

those are events and trials which were outside of my official duty, but

I can say with certainty and under the oath under which I am now that

because of abuse in concentration camps measures were taken with the

utmost energy.

Q. Did a person who had been handed over to the police or who was sent

to a concentration camp, including Poles and other foreigners, have any

recourse to the law as administered in the Reich, for his protection?

A. Well, if these people were in the hands of the police, we could

not extend that protection to them. As long as those people were in a

concentration camp, and to the extent that we had any jurisdiction over

concentration camps--to that extent we always intervened, if somehow or

other we could find out that there had been some abuse; but later on,

from 1939 on, these matters came under the special SS jurisdiction, and

we were no longer in a position to interfere[466].

Q. After that these people had no recourse to the law as administered

in the Reich?

A. We could not give them any legal recourse; we of the Ministry of

Justice could not extend legal protection to them.

Q. Did they have any legal protection?

A. Well, I would like to say there was a jurisdiction over the inmates

of the concentration camp and this was in the jurisdiction of the

SS courts. That SS jurisdiction in accordance with its duty, could

intervene in the same manner as we if anything had happened, that was

the legal protection afforded to them.

Q. That was the only legal protection they had?

A. Yes, I could not name any other.

Q. Now, by what laws, orders, or decrees were these people left to the

sole jurisdiction of the SS and the police?

A. Well, the Poles and Jews, NN prisoners were only handed over to the

police after my time in office. As long as I was in office this did not

happen.

Q. I mean, by what order or decree--you speak of a time when the SS had

their own courts--by what order or decree--

A. The SS got a special jurisdiction through a law of 1939. The handing

over of Poles and Jews, of the NN prisoners, and other people took

place through measures of the year 1942, I believe. However, I do not

want to make this statement with certainty, because it was after I had

resigned.

Q. After this order setting up special jurisdiction for the SS the

Ministry of Justice could not prosecute them, isn’t that correct--or

try them?

A. No, it couldn’t.

Q. Now, I have here this decree which is found in volume 2, on page

55, decree of 17 October 1939, relative to the Special Courts for the

SS.[467] Are you familiar with that?

A. Yes.

Q. After that the Ministry of Justice could not try these people for

abuse or murder of persons in their hands, is that correct?

A. Yes, I assume so. Please take into consideration when considering

my answers that these matters were apart from my official activity.

Therefore, I can rather give an expert opinion than a testimony as a

witness.

Q. Well, the effect of this decree was to deprive the people in the

hands of the police of all legal recourse, is that not correct?

A. The effect was in any case that they had no recourse to the ordinary

means of administration of justice. But the SS jurisdiction in my

opinion had the same duties, the same possibilities for their people as

we had.

Q. The only recourse, then, was to the SS administration of

justice--now, on page 56 there is this decree which is signed by

you, implementing that order, which places the police beyond the

administration of justice.

A. I didn’t quite understand.

Q. I have here on page 56 of volume 2 a decree concerning the

jurisdiction of SS courts and police courts in the Protectorate Bohemia

and Moravia[468] which implements to some extent the preceding decree

which I called to your attention. This decree is signed by you, which

sets up Special Courts for the police, that is, takes them out from

under the administration of justice. Now, this is signed by you. Do you

have any explanation of that?

A. May I ask you to state the date again, just the date?

Q. 15 July 1942.

A. Is that an order which was cosigned by Keitel? (Document handed to

the witness.)

Yes. This decree, however, I believe, has nothing to do with the

matters we have discussed so far. This decree as far as I remember, was

connected with a decree of January of the same year. In this decree

of January in the Protectorate military jurisdiction was rescinded,

and only for certain cases the Commander in Chief of the Wehrmacht was

granted the right, in the matter of attacks against the Wehrmacht,

to found the competency of Wehrmacht courts. The text of this decree

which concerns itself with the policy is almost literally the same

one as that of the decree of January 1942 regarding the Wehrmacht.

Here in this decree for the police, they were concerned with certain

courts for the SS. But the Wehrmacht SS [sic], which was considered a

special group of the SS was supposed to be treated in the same way [as

the Wehrmacht]. Therefore, after a discussion between Keitel and the

commander of the SS Wehrmacht [sic], the possibility just as it was

given to the Wehrmacht, was given to the SS as a fighting troop, to

found such courts. But this has nothing to do with the question of SS

jurisdiction, which is another question.

Q. Were there any other orders or decrees issued whereby prosecution

of SS and similar units was taken out from under the administration of

justice, and if so, what were they?

A. Yes, there was a special law about SS jurisdiction. At the moment,

I cannot tell you the date, but it was from 1939. That is the civilian

SS. But this decree refers to the SS as part of the Wehrmacht.

Q. Well, is that the decree of 17 September 1939 that I called your

attention to?

A. The decree which you were kind enough to show to me just now.

MR. LAFOLLETTE: Will Your Honor permit me? It is October. Your

Honor said September.

JUDGE HARDING: It is October, yes.

DEFENDANT SCHLEGELBERGER: Yes, 17 October 1939. That is the

decree about the SS jurisdiction.

Q. After that decree, did the Ministry of Justice have any means

whereby they could protect a person in the hands of the police in any

way whatsoever?

A. In my opinion, no; and that is why I tried to keep all these people

away from the police. That is why I wanted to keep all these people

within the sphere of the administration of justice, so that I could

protect them.

Q. Then these foreigners, Poles, and Jews in the hands of the police

were beyond any recourse of law in Germany, is that correct?

A. Not in my opinion.

Q. What recourse did they have?

A. Well, they probably had to turn to the higher SS office and to ask

for help.

Q. Was that recourse in law or is that merely administrative?

A. Yes. That was more administrative.

JUDGE HARDING: That’s all. That answers my question.

* * * * * * *

EXTRACTS FROM THE TESTIMONY OF DEFENDANT VON AMMON[469]

_DIRECT EXAMINATION_

* * * * * * *

DR. KUBUSCHOK (counsel for defendant von Ammon): You have

stated that you were not a confirmed National Socialist. In view of

your attitude, did you not have conflict of conscience sometimes during

your activity in the Ministry of Justice?

DEFENDANT VON AMMON: To a certain extent I have to answer

“yes” to that question. In my official activity, I occasionally had to

apply laws or other legal regulations or had to follow instructions

issued by my superiors with which I was not quite in agreement in

my own mind. In such cases I considered it my duty to follow such

regulations and provisions which in my opinion though unpleasant were

after all effective. Likewise, I considered it my duty to follow

the instructions issued by my superiors. However, I would not have

considered myself obligated to follow instructions issued by my

superiors which were contrary to law. Such illegal orders however

were not given to me. In such cases, however, a certain amount was

left up to my own discretion and that happened in many cases. When

I applied that discretion I tried as far as possible to make my own

opinion apply. Of course, the possibility in those directions were not

overly large since as a Referent I had to obtain the agreement of my

superiors, the more important decisions. Because of my lenient attitude

I was frequently objected to, especially by my superior Vollmer and the

Minister of Justice Thierack.

Q. Did your attitude change when the war broke out?

A. Due to the outbreak of the war nothing changed in my basic attitude.

I was of the opinion that since the war had broken out, independent

of its consequences for national socialism, it would bring about the

decision, “to be or not to be” for Germany. Therefore, I believed that

every German had to fulfill his duty in his official position.

Q. I now come to the main charge which the prosecution has raised

against you in regard to your dealing with the so-called NN cases.

Under what circumstances were you entrusted with this new field of work?

A. The distribution of the Referate [sections] was as a rule made by

order of the department chief without asking the Referent about it in

advance. Thus, I too in February 1942 was assigned by my department

chief, Ministerial Director Crohne, to work with NN cases without my

knowing for the time being what these NN cases were all about.

Q. What tasks and authorization did you have as Referent of Department

IV of the Ministry of Justice for NN cases?

A. In order to answer that question I first have to describe briefly

the competency of Departments III, IV, and V.

Department III was the department for criminal legislation, Department

IV was for the administration of criminal law, Department V was

the department for the administration of penalties. It belonged to

the competency of Department III; the preparations of the laws and

regulations similar to laws, the housing of prisoners belonged to the

competence of Department V and the treatment of these prisoners while

they were in prison. Department IV, that is my department, dealt in the

main with the cases against the defendants until they were sentenced by

a court, including the clemency procedure. Furthermore, the issuance of

general provisions regarding legal procedure in as far as Department

III was concerned was not competent for this.

Q. As far as Department V was competent, what authorization did you as

Referent have with regulation to your superiors?

A. Gramm and Mettgenberg have already testified to this, here on the

witness stand. I only have to add some supplementary remarks. As

Referent, I had to a certain extent the right to give my signature,

that is to say, to a certain extent I could give written or oral

statements by order. This right for signature, however, was limited,

since due to my being subordinate to the department chief, and for the

most part of my activities I was subordinate also to a subdepartment

chief. During the first month of my activity in the NN cases my section

was directly under the department chief. A few months later, however,

Mettgenberg was put in charge as a subdepartment chief between me and

the department chief. My authority in relation to my subdepartment

chief and department chief were limited through general regulations

rather carefully. The regulations applied which were contained in

Exhibit 510 submitted by the prosecution.[470] May I refer to these

regulations? Regarding the letters by the Ministry of Justice that

were sent outside the Ministry of Justice which were submitted by the

prosecution, in accordance with the provisions I mentioned, I did

not sign a single one finally, but all the letters after I had also

cosigned them I submitted to my subdepartment chief for signature. He

then for the most referred them to the subdepartment chief or even to

the under secretary or to the minister. If the prosecution, contrary to

this, in this submission of several documents, stated that the letters

of the Ministry of Justice were signed by me, that is an error. There

are throughout letters for which I did give a cosignature, that is in

the right hand lower corner, they bear my initials, but one of my

superiors gave the final signature.

* * * * * * *

Q. As Referent in NN cases, did you have a large staff of assistants?

A. No. I never had more than one assistant, and he worked only part of

the time in NN cases, and then only at the beginning of my activity

with NN cases. From the beginning of 1943 on I worked entirely without

any assistance. From that time on, due to the heightened drafting

for the Wehrmacht, younger gentlemen who could be assistants, were

available only to a very limited extent in the Ministry of Justice.

From that time on I had only a so-called “Mittlerer Beamter,” a civil

servant in the intermediate level [of civil service] for registration

and filing.

There was a special provision only for preparation of clemency pleas in

death sentence cases. For that work, I had assistance from time to time.

Q. I refer to that extent to Document NG-988, Prosecution Exhibit

510, the plan of distribution of work which shows further facts.

Witness, please give us a survey over the periods when the general

administration of justice participated in the NN cases.

A. We can distinguish between two periods during which the general

administration of justice was concerned with NN cases. The first period

extends from February 1942 until October 1942; the second from October

1942 until September 1944, and to some extent until the end of the war.

During the first period the executive regulations of the Reich Ministry

of Justice of 6 February 1942[471] were decisive in their original form

as they had been issued by Schlegelberger and Freisler. Two factors

characterized this period. First, the police were involved in the NN

cases only to the extent that the transportation of the NN prisoners

from the occupied territories was carried out by the police; and

secondly, for the sentencing of NN cases only some Special Courts were

competent. The competency of the People’s Court did not exist at that

time, for those cases.

The second period begins with the changes which were introduced soon

after Thierack assumed office. The police now also became competent to

the extent that the NN prisoners, for the detention of whom no legal

reason existed any more, were transferred to the police for protective

custody for the duration of the war.[472] And for the trying of NN

cases, in addition to the individual Special Courts, the People’s

Court now is competent too. This second period ends with the order

that the NN prisoners should generally be returned to the police. This

order was issued in September 1944. The return, however, was carried

out until the end of the war only partly so that at the end of the war

numerous NN prisoners were still in the detention of the administration

of justice.

Q. We shall now turn to the first period for which the executive

regulations of 6 February 1942 were decisive. Witness, were you

involved in the drafting of these regulations and the discussions

with the OKW which preceded this decree and which the witness Lehmann

testified about?

A. No. I neither participated in the formulation of the regulations

nor in the preceding negotiations. The regulations were worked out

in the departments for penal legislation, first Department II and

later III, and at that time I did not belong to either of them. About

the regulations and the preceding negotiations, I heard only on the

day when the regulations were issued. On that day--it was 6 February

1942--the presidents of the courts of appeal and the attorneys general

of those districts in which the NN cases should in the future be tried,

had been ordered to the Ministry of Justice for a discussion.

Immediately preceding the beginning of the meeting my then department

chief, Ministerial Director Crohne, had a message sent to me that I

should come to the meeting because in future I would have to work with

the penal cases which would result from the newly issued regulations.

I then attended that meeting and for the first time, from the mouth of

State Secretary Freisler, who was presiding over the meeting, I heard

about the Night and Fog Decree and the executive regulations issued

pursuant to it.

Q. In the executive regulations of 6 February 1942 there are provisions

about the limitation of foreign evidence. Paragraph 5 of the executive

regulations, Exhibit 306[473], which, however, are here only in draft

form gives this regulation--The use of foreign evidence material

requires the prior agreement of the public prosecutor. Furthermore,

paragraph 4 of the same regulation provides that the senior public

prosecutor has to obtain the decision of the Reich Minister of Justice

before he can use foreign evidence material or can agree to the use

of foreign evidence material by the court. This latter regulation is

contained in Exhibit 308[474].

The indictment asserts that it was one of the purposes of the NN

procedure to prevent the defendants from having access to witnesses or

any other evidence. What do you have to say about this?

A. First, I would like to correct you, Counsel. You quoted paragraph 4

of the circular decree of 6 February 1942, and by mistake you said that

this was the same provision as paragraph 5 which you mentioned before.

These are two different regulations. First is paragraph 5 of the

executive order of 6 February 1942. That is Exhibit 306, and the second

regulation is paragraph 4 of the circular decree of the same day, and

that is Exhibit 308.

In answer to the question of what I have to say about the allegation

in the indictment, that it was one of the purposes of the NN procedure

to make it impossible for the defendants to have access to witnesses

or any other evidence, I have to say that that assumption is entirely

wrong. The limitations on foreign evidence material was not one of the

purposes of the NN procedure, but the absolutely undesired result which

resulted from the necessity of keeping the matter secret.

It could never result in a disadvantage for the defendant but would

of necessity result in favor of the defendant. The German criminal

procedure is based on the assumption that the defendant has no duty

or no authority to prove anything. Therefore, any doubt had to work

in favor of the defendant. In the same way, doubts which arose out of

the limitation of foreign evidence worked in favor of the defendant.

Moreover, foreign evidence was in no way excluded altogether but it

should only be procured and used in such a way that the secrecy of the

proceedings and the keeping incommunicado of the defendant would not be

endangered.

Q. What was the effect of the regulations about the limitation of

foreign evidence in practice?

A. According to my observation, in the majority of cases these

regulations did not lead to any difficulties. In many cases the

clarification of the facts was accomplished by the statements of the

defendants or codefendants or on the basis of German evidence. This

was the case especially in the numerous cases in which simple facts

were involved. Thus, for instance, in most of the cases of illegal

possession of weapons, a weapon was found in the possession of the

defendant. Beyond this, the use of foreign evidence was admissible as

far as the secrecy of the proceedings was not endangered by this. Thus,

the Ministry of Justice in any case permitted that a foreign witness

not before the court trying the case but in the occupied territories

could be examined by an investigating judge. If this, however, did not

bring about the desired result, if there still existed some doubt as

to the guilt, the defendant had to be, and was, acquitted. According

to my observations, probably in all courts which had to deal with NN

cases, a large number of acquittals were pronounced, because owing to

the limitation of foreign evidence defendants could not be convicted.

I remember, in particular, extensive trials before the Special

Court of Oppeln against numerous defendants who were charged with

participation in dangerous resistance movements in Belgium. According

to the indictment, I was under the impression that heavy sentences

would be pronounced. In effect, however, the result of the trials was

quite different. The defendants maintained that it was not a dangerous

resistance movement, but a harmless club. In view of the limitation

of foreign evidence it was impossible to disprove this defense. Thus,

the defendants had to be acquitted, or they could be given only slight

penalties because of participation in a club not authorized by the

military commander.

Q. Paragraph 6 of the executive orders of 6 February 1942 which have

already been mentioned--that is, Exhibit 306[475]--makes the following

provision: The public prosecutor can, until the sentence is pronounced,

withdraw the indictment or ask that the trial be postponed. The court

has to agree to the application of the prosecutor for suspension. If

the court wants to deviate from the application made by the public

prosecution, it has first of all, to afford them an opportunity to

state their opinion.

Witness, what can you say about this regulation?

A. Dr. Schlegelberger, when he was examined, commented extensively on

these regulations. I only have to add the following: The procedure

described was, as Dr. Schlegelberger stated, introduced in order

to prevent NN prisoners from being transferred to the police. For

the court itself, in view of its prestige, it probably was not very

pleasant. The authors of that regulation realized that too. As I said

already in my affidavit of 17 December 1946, that is Exhibit 337[476],

even Freisler said in this meeting of 6 February 1942, that with this

regulation one had reached the utmost limit of what one could expect of

the court. The authors of this regulation, however, believed that they

had to put up with that regulation in the interest of the NN prisoners.

Q. The regulation of paragraph 6 of the executive orders which we just

discussed--was it ever applied in practice?

A. I don’t believe so. The regulation was in effect only for a brief

period. Thierack, in October 1942 soon after he became Minister,

rescinded it. During the time that this regulation was in effect, as

far as I remember, only very few NN cases were tried. These were clear

cases in which the court had no misgivings against agreeing with the

plea of the prosecutor. If that regulation would have been applied, the

Ministry certainly would have been informed about it, and I certainly

would still remember it.

Q. On the changes which Thierack ordered in October 1942, Dr.

Mettgenberg has commented.[477] Did you have misgivings against these

changes, especially also against the transfer of NN prisoners to the

police?

A. The changes which Thierack made also had, without doubt, a favorable

side. The unpleasant regulation of paragraph 6 of the executive

order of 6 February 1942 was removed. Even Freisler, as I mentioned

before, stated about it that with this regulation the outside limit

had been reached of what could be expected of the courts. Now, this

bad condition was removed, that the justice authorities of the

administration had to detain persons in whose cases the reason for

detention had to be maintained by the procedure discussed by Dr.

Schlegelberger. On the other hand, the transfer of the NN prisoners to

the Gestapo was without doubt unpleasant. After the competency of the

general administration of justice for the detention of NN prisoners

who were acquitted or whose time of arrest had been removed, it again

was returned to the armed forces. According to the provision of the NN

decree, however, the armed forces, as a rule at least, were not allowed

to return these NN prisoners to the occupied territories. Neither,

for the reason of keeping this matter secret, could they be set free

in Germany. The only way out that Thierack saw was their detention by

the Gestapo and the OKW who in the last instance had to decide about

this affair agreed to the suggestion by Thierack. If now I am asked

if, in regard to the treatment of the prisoners by the police, I had

misgivings, I can answer that in the following way: The prisoners were

handed over to the police with the express provision that the detention

was carried out only for reason of secrecy and in the interest of

keeping the whole affair secret. Therefore, the Gestapo merely had

to detain them and not to carry out a penalty. As far as I know, in

the negotiations between Crohne and the Gestapo, the representatives

of the Gestapo stated that in the case of detention of NN prisoners,

they would take into consideration the fact that against the prisoners

personally there was no longer any charge. Later on, the Reich Leader

SS also ordered expressly that the NN prisoners, who were handed over

to the police, always should be put on the level of Protective Custody

I which was the most lenient level.

Q. I refer to Exhibit 328[478] in regard to the last statements made by

the witness.

Witness, as Mettgenberg testified in September 1944, the general

administration of justice was again deprived of the competency for NN

cases. It was ordered that NN prisoners generally should be handed back

to police. What can you say about this?

A. I can confirm the statements made by Dr. Mettgenberg to their

fullest extent and only have to make a few supplementary remarks. As

Mettgenberg already testified, in the discussions at the OKW, which

took place in the beginning of September 1944, the witness Hecker and

I represented the Ministry of Justice. Since the matter could not be

reported to Minister Thierack in advance, my department chief, Vollmer,

had given me the instruction to reserve the right for the Minister to

state his opinion. I acted accordingly during the negotiations. The

representatives of the OKW then also agreed that the OKW would forward

a draft of the intended order of the OKW to the Ministry of Justice and

that the Ministry of Justice could then state its opinion on the draft,

in writing.

In place of that the OKW then sent us an already filed decree which

ordered the discontinuance of the NN procedures and the transfer of

NN prisoners to the police. When I reported this to Mettgenberg and

together with him to Vollmer, he was very much displeased about the

manner of handling used by the armed forces. Vollmer said the OKW

had byplayed us in that manner, and he instructed me to talk to the

representative of the OKW by telephone and protest against this manner

of conducting this business. He said the decisive thing, however, was

that the regulation made by the OKW had to be accepted according to the

division of business, as the OKW was competent for NN cases.

In accordance with the instructions given by Vollmer, I then telephoned

the representative of the OKW and expressed our surprise at the

manner of handling this. The representative replied that this was a

misunderstanding and he regretted it very much; in any case I can

testify that on the part of Department IV of the Ministry of Justice,

no agreement for these regulations was given, but that Department IV

only through force submitted to the regulation which was made without

its agreement.

Q. The meeting in the building in the Reich Military Supreme Court

in the beginning of September 1944 was presided over by Dr. Werner

Huelle and at that time he was supreme judge. I submit an affidavit by

Dr. Huelle that was taken on 17 July 1947.[479] Following the usual

introduction formula, it reads as follows:

“By order of the chief of the legal department of the Wehrmacht

I presided over the discussion in the beginning of September

1944 in the building of the Reich Military Supreme Court in

Berlin. In this meeting the question of the transfer of the NN

prisoners was dealt with. The basis of this discussion was a

Fuehrer order, which had ordered the return of the NN prisoners

to the police.

“The representative of the RSHA insisted on the giving back of

the prisoners who had already been sentenced, since the will of

the Fuehrer referred also to those and by saying so he referred

to a classification which Himmler had written about to Hitler.

“Although in view of this the discussion could have only the

value of a technical discussion. I consider it absolutely

possible that the referents of the Reich Ministry of Justice

reserve to themselves the right of obtaining the opinion

of their minister since they had not received instructions

from him. More exact statements I can no longer make from

memory. In what manner and by whom my office then received a

statement by the Ministry of Justice, I do not know since I

was not the Referent. With absolute certainty, however, I can

say that only the transfer to the police for the purpose of

commitment for labor for urgent armament work was considered

for which the manpower of the prisoners was needed. My

superior, Generaloberstabsrichter Dr. Lehmann, who himself

had formerly been a member of the Ministry of Justice, always

attached importance to relations without frictions with the

administration of justice, and therefore, he had the questions

which interested both offices discussed in common.”

PRESIDING JUDGE BRAND: Will you tell me the author of that

affidavit? I did not catch the name.

DR. KUBUSCHOK: Huelle. I submit this affidavit and ask to

reserve the number, von Ammon Exhibit No. 2, for this affidavit.

* * * * * * *

DR. KUBUSCHOK: From the documents submitted by the

prosecution, it is apparent that keeping NN prisoners incommunicado was

one of the main peculiarities of the NN procedure which was applied

from the very beginning. In the opening statement by the prosecution,

among others you too are being charged with having systematically

carried out and approved these regulations about keeping the procedure

secret. In this connection, Exhibit 319[480] is of interest. It

contains a circular decree by the Reich Minister of Justice in which

several directives are given as to how agencies of the Ministry of

Justice are to handle NN cases in order not to endanger the cutting

off of NN prisoners from the outside world. What can you say about the

origin of this circular decree?

DEFENDANT VON AMMON: The circular decree was caused by

reports of the Chief Public Prosecutors in Cologne and Essen, about

the difficulties resulting from the strict regulations about keeping

the NN prisoners incommunicado, especially when NN prisoners died, and

they had made suggestions for overcoming these difficulties. The report

of the Chief Public Prosecutor in Cologne is contained in Exhibit

314.[481] In this report the decisive questions are dealt with under

paragraph [II and] III. The report of the Chief Public Prosecutor in

Essen was not submitted in this trial here.

PRESIDING JUDGE BRAND: The morning recess--15 minutes.

DR. KUBUSCHOK: Before the recess, you answered the question

as to the origin of the circular decree which we discussed. Please

continue.

DEFENDANT VON AMMON: The circular decree, Exhibit 319, which

took issue with the questions raised in the reports from the senior

public prosecutor at Cologne and Essen was, as Mr. Mettgenberg has

already stated here, the joint work of both Departments III and IV of

the Ministry of Justice. I participated in the work on that particular

decree, insofar as the competence of my department was affected by

drafting the provisions contained in it. Various questions that were

settled in that circular decree did not affect the competence of

Department IV at all. Thus, for example, the question of burials of

NN prisoners who died a natural death while serving their sentences

and the question of the possessions they left behind was a matter

for Department V to deal with. To that extent only Department V was

responsible for the provisions which had been worked out. Apart from my

section, there were other sections, partly in Department IV and partly

in other departments which were competent. The questions which emerged

therefore had to be dealt with by these various sections cooperating.

Q. What are your comments about the contents of the circular decree in

general?

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